Floor Statements

Mr. President, I support the expansion of nuclear power, and so do the American people. Seventy percent, according to the Nuclear Energy Institute, believe we should either build new or expand existing nuclear powerplants. It is the key to our energy future in several different ways.

I believe we ought to have a robust goal toward expanding nuclear power, and that we should work to build 100 nuclear plants as quickly as possible. We built them quickly in wave of construction, and hopefully, we will be able to have a cookie-cutter design for plants that can be used on a regular basis with good engineering, and be a step above the plants we have today.

Nuclear energy is a clean source of domestic energy. It is American- made energy. It is the kind of energy the American people support. It has a role to play in reducing our dependence on foreign oil and bringing down the price of gasoline. If we could convert more cars to utilizing electricity through plug-in hybrids, then 24-hour-a-day base load nuclear power can charge automobile batteries at night when the grid is not at full demand and a person can drive 40 miles or so the next day without using a drop of gasoline.

Nuclear powerplants will provide long-term economic benefits. It makes great strides in reducing the amount of imported oil from foreign countries and it keeps our wealth at home. It certainly creates high- paying, clean American jobs. It is a serious solution to our energy future. New nuclear plant construction will supply as much as 50,000 megawatts of additional clean and affordable electricity to meet the demands of a growing economy.

Nuclear power is the most cost-effective way to generate electricity. While wind and solar certainly have roles, they simply will not take us far enough. The average nuclear production costs have declined more than 30 percent in the last 10 years to an average of 1.7 cents per kilowatt hour. This includes the cost of operating and maintaining the plant, purchasing the nuclear fuel, and paying for the management of used fuel. The low and stable cost of nuclear power helps to reduce the price of electricity paid by consumers. We cannot just say that we need to use energy sources that are clean; we must also produce electricity at an affordable price, and nuclear power meets both of these criteria.

One thing I am disappointed about in the bill we are working on today, is how this measure deals with the storage of nuclear waste. Yucca Mountain was chosen as the government's location for a deep geologic repository for the safe storage of used nuclear fuel. All aspects of the geological, hydrological, geochemical, and environmental impacts have been studied, including a detailed evaluation of how conditions might evolve over hundreds of thousands of years at Yucca Mountain. To date, we have spent more than 25 years and $10 billion on these studies, and the Department of Energy has summarized these studies in several scientific reports which served as the basis for the 2002 decision to approve Yucca Mountain as a site repository. These reports, which included input from extensive public review and comment, formed the foundation of DOE's June 2008 application to the Nuclear Regulatory Commission for a license to construct the repository.

Ending Yucca Mountain could not only hinder new nuclear construction, it could also pose a serious budget question. The repository is currently financed through the Nuclear Waste Fund. Presently, ratepayers pay a one-tenth of 1 cent fee for every kilowatt hour of nuclear power they consume. This is collected through the monthly utility bill paid by ratepayers.

Under the Nuclear Waste Policy Act, DOE must review the adequacy of the Nuclear Waste Fund fee every year. DOE last performed a fee assessment in August of 2008, when it found the fee was adequate. As a result, the total amount of money paid into the fund is approximately $750 million per year and about $1 billion in interest per year. The Congressional Budget Office cost estimate unit told the House Budget Committee that CBO could not estimate what the fee should be:

In light of the [Obama] Administration's policy to

terminate the Yucca Mountain project and pursue an

alternative means of waste disposal, there is no current

basis to judge the adequacy of the fee to cover future costs

because the method of disposal and its lifecycle costs are

unknown.

That is certainly true. Therefore, utilities and regulators are now asking the Department of Energy to suspend the fee on nuclear power. Why should they pay a fee that is supposed to ensure their wasted nuclear fuel will be taken to a repository when this administration has sought to stop this repository and seems to be making progress in that direction?

Suspending payments of the Nuclear Waste Fund could also complicate general budget matters as the Nuclear Waste Fund is included as a part of the General Treasury Fund, not a trust fund, and can be appropriated on an annual basis. The result is that these funds are often used for purposes other than the disposal of nuclear waste, with only IOUs being held to carry out the fund's purpose. For example, according to CBO, the fund provided $8 billion through 2006 in government spending that did not contribute to the deficit. In other words, they took this money from the fund. So we can see the issue. If the IOUs are ever paid, the money must come from somewhere, and that payment will be scored as an expenditure of the government. In fact, if lawsuits filed by utilities paying this fee to the government are successful, we are going to have to spend the money, according to the law, it seems to me, for nuclear waste disposal. If so, where will the money come from? We will have to find it in some other fashion. If we do like we do everything else around here, we will just add it to the deficit, another $8 billion to the current debt.

Additionally, we cannot forget that the Nation's $11 trillion deficit must also be factored into the debate. Regardless of what the President's Blue Ribbon Commission decides concerning Yucca Mountain, the DOE will have to pay for the disposal of nuclear waste. That is the legal requirement.

There are numerous lawsuits stemming from the delay. The courts have already found DOE partially in breach of contract for not taking the used fuel from the nuclear powerplants as required in exchange for the nuclear waste fee they have been paying. This has resulted in the Federal Government paying approximately $300 million to utilities in compensation costs, which is paid out of a judgment fund and not out of the Nuclear Waste Fund. They are not paying back the money with the funds already contributed by the utilities. They are taking it from the General Treasury, a judgment fund, and paying it out of that. And there may be more judgments coming along.

Also, DOE has appealed judgments totaling approximately $400 million in additional cases they may well lose. That will be another $400 million that will have to be found and there are close to 40 lawsuits that have not yet gone to trial.

According to CBO, because judicial claims for damages are made retrospectively, many more cases can be expected in the coming decades as utilities seek to recover their own costs for storing nuclear waste on site long after they expected it would be removed to a permanent disposal site.

The repository is also slated to hold high-level waste left over from the Cold War, and the government may be liable for compensation costs from States currently hosting defense waste as well. The Treasury Department has estimated it will cost DOE about $300 billion to clean up and monitor several government sites that are contaminated with hazardous and radioactive materials.

I ask my colleagues to listen to that number. As a result of activities in early nuclear development, there are waste sites in the country. The Department of Treasury has estimated it will cost about $300 billion to monitor and clean up several of those sites. I think that number is so breathtaking that I am amazed that more discussion has not occurred about it. I have raised the issue with the Department of Energy and the Department of Defense, as I serve on both Committees, and I believe it can be done for less than that. It has to be done for less than that. We do not have the $300 billion. We have to look for a better and more responsible

way to deal with these cleanups. The waste needs to be stored somewhere. The President has indicated that Yucca Mountain is not one of the options for disposal of nuclear waste.

I was disappointed to hear that. However, we must remember that Yucca Mountain remains the law of the land and that the administration does not have the ability to unilaterally terminate the project. In order to eliminate Yucca Mountain, Congress would have to amend the Nuclear Waste Policy Act, which set a deadline for the Federal Government to begin disposing of used fuel. However, more than a decade later, we still have not settled on a policy for how to accomplish this, and we have sunk nearly $10 billion into Yucca Mountain. That is a huge sum of money, even for the amounts we talk about today. Not to mention that it is the most studied geology on the planet.

I do not think we should abandon this project simply because of political pressure. Regardless of what this administration says, we will continue to face the problem of nuclear waste management. We must have a successful plan to dispose of nuclear waste, whether it is through direct disposal or recycling. I believe we need to go forward with recycling and I have offered legislation to do just that. Either way, we are going to need a site, but if we recycle this waste, it would be less toxic. It would be radioactive for far fewer years than would be the case if it were not recycled and perhaps would then be more palatable to those who object to the site.

Perhaps an answer, which to me makes sense, is to move the Nuclear Waste Fund off budget to a dedicated account so that the money will be used for what it was intended. Currently, it is being spent in other places and being replaced with an IOU. Why should utilities pay money into a fund when they are not getting any benefits that they were promised? It just lead us into liability and lawsuits, some of which are already being lost.

I believe nuclear power has proven to be exceedingly safe in America. Not one American has lost their life operating a nuclear powerplant.

The Three Mile Island situation, which caused so much fear and concern in America, did not result in even one person in the studies afterwards to have been sick. But the plants today, and the new ones we will build, will be even safer. They will be set up in such a way that even without power they would automatically shut themselves down through gravity flow into the reactor core. It is a new and safer design. They can be built in mass production quantities, resulting in lower costs per plant, and perfecting the technology and construction techniques that should result in reducing costs. It would allow the components to be produced in larger numbers, reducing costs, and help the Nuclear Regulatory Commission, because of the uniform nature of these plants, to regulate them even more effectively.

Mr. President, I thank the Presiding Officer and would say again, nuclear power produces about 20 percent of our electricity today. It emits no CO2 or other global warming gases into the atmosphere. It is cost effective, it is all American, and it does not require us to expend large amounts of American wealth to foreign countries in order to maintain our energy supply. Nuclear power is the right thing to do, and I hope we will continue to work on it because I believe the country is ready to move in that direction.

I thank the Chair and yield the floor.

I suggest the absence of a quorum.

Madam President, tomorrow the Senate Judiciary Committee will vote on the nomination of Judge Sonia Sotomayor to serve as Associate Justice of the U.S. Supreme Court.

I thank the nominee and the members of the committee, including our Democratic colleagues, and Chairman Leahy, for their efforts throughout the process. I appreciate Judge Sotomayor's kind words to us about how well the hearings went and her expression of gratitude for the kindness and respect she was shown. She is a good person with experience, the kind of experience one desires in a nominee, and her personal story is certainly inspiring.

However, based on her record as a judge and her judicial philosophy, I have concluded that she should not be confirmed to our Nation's highest Court. While differences in style and background are to be welcomed on the Court, no one should sit on the Supreme Court, or any court, who is not committed to setting aside their personal opinions and biases when they render opinions and who is not committed faithfully to following the law, whether they like the law or not. Impartiality is the ideal of American law. Judges take an oath to pursue it, and the American people rightly expect it.

Judge Sotomayor's speeches and extrajudicial writings represent dramatic expressions of an activist view of judging that is contrary to that ideal. Judge Sotomayor made speech after speech, year after year, setting forth a fully formed judicial philosophy that conflicts with the great American tradition of blind justice and fidelity to the law as written.

These speeches also contradict the oath that judges take to ``do equal right to the poor and the rich'' and to do so ``impartially'' ``without respect to persons.'' Under the law, under the Constitution and laws of the United States, judges are subordinate to our Constitution and laws. This ideal is a high one indeed, and it requires a firm personal commitment to objective truth and a belief in the meaning of words.

It has been suggested repeatedly that Judge Sotomayor's words and speeches are being taken out of context. I have read her speeches in their entirety. Her words are not taken out of context. In fact, when one reads the entire speeches, the context makes them worse, not better.

My criticism also should not be considered as a personal attack on her as a person because there are a number of intellectuals, judges, and legal writers who believe in just such a new way of judging. It is quite fashionable among some--those who think they are more realistic than naive American citizens, judges, and lawyers who, they believe, delude themselves when they think a judge will or can find true facts and apply them fairly to the law as written.

Most Americans and most Senators have heard about Judge Sotomayor's speeches, which are clearly outside the mainstream. She has repeatedly said, among other things, that judges must judge when ``opinions, sympathies and prejudices are appropriate.''

She accepts that who she is will ``affect the facts I choose to see as a judge.''

It is her belief that ``a Wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male.''

That there is ``no neutrality'' in judging, just a ``series of perspectives.'' She has also said the appellate courts are where policy is made.

These matters have been discussed in some detail by my colleagues and at the hearing. Her testimony at the hearing was that these speeches do not reflect her philosophy of judging. It is hard for me to accept that her words, expressed over a decade in these speeches, do not reflect what she actually believes. Indeed, it is an odd position in which to find oneself to be at a hearing and say you don't believe what you have been saying over the years.

But Judge Sotomayor has asked, and her supporters have asked, that we look at her judicial record which proves, she and her supporters say, she is unbiased, and shows that she does not allow personal politics and views to influence her decisions. They cite over 3,000 cases she has decided, most without controversy.

They have gone to some length to discuss and defend the process by which she decides cases. Indeed, in her opening statement, Judge Sotomayor explained: ``[t]he process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged.''

She did follow this style in many of the cases that came before her, going into detail and even being criticized by some in a Washington Post article for ``uncommon detail'' that risked ``overstepping'' the bounds of an appellate judge.

But there is more to the story. Most cases before the courts of appeals are fact based and routine and do not raise the kind of serious constitutional issues that the Supreme Court hears and decides on a regular basis.

I have reviewed carefully three cases--two decided in the last year, and one 3 years ago--that are the kinds of cases the Supreme Court deals with regularly. Unfortunately, Judge Sotomayor's handling of these cases was not good. They show, first of all, an apparent lack of recognition of the importance of the issues raised in these three cases.

In each case, the decisions were extremely short and lacking any real legal analysis. These three cases also

reached erroneous conclusions. They ignore the plain words of the Constitution, and they provide a direct look at how the nominee will decide many important cases that will come before the Court, if she is confirmed, in the decades to come.

The case of Ricci v. DeStefano came to her three-judge panel of the U.S. Court of Appeals for the Second Circuit as an appeal by 18 firefighters. They had passed a promotion exam, but the exam had been thrown out by the city of New Haven because the city thought not enough of one group passed. The test was thrown out not because it was an unfair test. Indeed, the Supreme Court, when the case got there, found that ``there is no genuine dispute that the examinations were job- related and consistent with business necessity.'' Instead, the city threw out the test because the city did not like the racial results. Thus, the city discriminated against the firefighters who passed the exam because of their race.

This case is a sensitive case, it is an important case, and we need to analyze it carefully. It is noteworthy because the court failed to adhere to the simple but plain words of the Constitution.

In Ricci, Judge Sotomayor's opinion violated the plain constitutional command that no one shall be denied ``the equal protection of the laws'' because of their race.

Additionally, the case is subject to criticism because of the manner in which it was handled. I want to talk about that a minute. Judge Sotomayor did not deal with this important constitutional issue--a very important constitutional issue--in a thorough, open, and honest way. Without justification and in violation of the rules of the Second Circuit, Judge Sotomayor and the panel initially dismissed the case by summary order; that is, without any published opinion, without even adopting the trial court's opinion. No opinion, no explanation.

The effect of this summary order was to deal with the case in a way that would not require the opinion to be published or even circulated among the other judges on the circuit. This was not justifiable. The circuit court rule states that summary orders are only appropriate where a ``decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by an opinion. . . .''

This is a huge constitutional question in this matter. If it were not, the Supreme Court would never have taken it up, and it almost slipped by. But by chance, other judges on the Second Circuit apparently found out about it through news accounts, apparently, and began to ask about this case that seemed to be of significant import. This resulted in a request by one of the judges--quite unusual when you are dealing with a simple summary order--to rehear the case before all of the circuit judges. It created a notable dustup. The result was a split court with half of the judges asking for a rehearing of the case, half against rehearing it, with the deciding vote not to hear the case, not to reconsider any of the precedent that may have existed, being cast by Judge Sotomayor herself.

In effect, this was a vote to avoid the full and complete analysis this case cried out for from the beginning. It was only during this challenge that Judge Sotomayor's panel agreed to decide the case then by a per curium opinion, an unsigned opinion, which at least then adopted for the first time the lower court's opinion which, frankly, I don't think was a very fine opinion for this kind of important case. But that became the opinion she adopted.

Still, the firefighters didn't give up hope. They then sought a review by the Supreme Court. Against long odds, the Supreme Court agreed to hear their plea. The Court found the ruling erroneous. They reversed the Sotomayor court's opinion and rendered a judgment in favor of the firefighters. They held that what the city of New Haven did, which Judge Sotomayor had approved, was simply wrong.

At the Judiciary Committee hearing, firefighters Frank Ricci and Ben Vargas beautifully described what it meant for them to go from a summary dismissal in the Sotomayor court, to a summary judgment victory in the Supreme Court. Five years of personal cost, stress, and strain suffered by the firefighters were vindicated by an important victory for equal justice in the Supreme Court.

But nothing can erase either the flawed result of Judge Sotomayor's panel decision or her panel's apparent attempt to sweep the case under the rug.

Secondly, Judge Sotomayor's treatment of critically important second amendment issues that have come before her is equally troubling, for the same reasons. She simply got the text of the Constitution wrong and did so in such a cursory way that her actions seemed designed to hide the significance of the case and the significance of her ruling.

Last year, in a case of great importance, the Supreme Court held in the Heller case that the second amendment, which protects the right of ``the people to keep and bear Arms,'' provides an individual right-- which I think it clearly does--and that, therefore, the Federal city of Washington, DC could not ban its residents from having a handgun in their homes for protection. In a footnote, the Supreme Court left open the question, not raised in the case, of whether the second amendment would bind the States. The question is simple and of fundamental importance to the second amendment: Does the Constitution bar States and cities from denying their residents the right of gun ownership? Pretty big question. Huge question.

On January 28 of this year, in Maloney v. Cuomo, Judge Sotomayor issued an opinion on this very issue. And in this opinion, Judge Sotomayor again failed to follow the text of the Constitution. The Constitution is plain and simple on this issue: ``. . . the right of the people to keep and bear Arms, shall not be infringed.'' And when you are talking about the people, you are talking about the right not just as it is applied to the Federal Government, I would submit, but also to the States and cities. So the Sotomayor panel looked at this text and decided that a State or local government may infringe, even deny your right.

Some argue that Judge Sotomayor was bound by precedent in her decision and there was old case law that her decision followed. But we have looked at this closely and tried to think it through. I would note that the situation the court found itself in shortly after the well- known, tremendously important Heller case had changed, and the Ninth Circuit panel, facing the very same issue, disagreed with Judge Sotomayor. It found that the second amendment does apply to the States. The Seventh Circuit, in a very thorough and carefully written opinion, and at its final conclusion, agreed with Judge Sotomayor's panel's decision, but it did so in such a way that it demonstrated its recognition of the importance of this right and the new situation created by the Supreme Court in Heller. This recognition was utterly lacking in Judge Sotomayor's very brief opinion.

While it is argued that Judge Sotomayor relied on precedent, the precedent she cited was from the 1800s and does not use the modern test for incorporation that the Supreme Court employs in deciding whether rights apply to States, something that has been going on for nearly 100 years. Not only that, but even after the watershed decision by the Supreme Court in Heller, she held that it was ``settled law'' that the second amendment did not apply to the States and that the right to keep and bear arms is not a ``fundamental right.''

When these points were brought to the Judge's attention during the confirmation hearings, she declined to explain herself, claiming that she had not recently read the cases on which she so recently relied. This is not the level of analysis that the Judiciary Committee has the right to expect from a nominee to the U.S. Supreme Court.

Make no mistake, the effect of this ruling, if not reversed, if it stands, will be to eviscerate the second amendment by allowing States and cities to ban all guns, as the District of Columbia had basically done before the Supreme Court reversed that in Heller. In simple terms, in a case of great constitutional importance, Judge Sotomayor, once again in an unjustifiably brief opinion, measured in mere paragraphs of analysis, gave short shrift to the plain words of the Constitution.

I will say also that after the Supreme Court rendered its ruling in Heller, it had a footnote that said since this is a Federal cities case, we don't decide the

application of the second amendment to the States. But in that footnote, the Court made it quite clear that the prior old cases were decided before it had adopted a different approach to incorporating constitutional rights against the States. It is pretty clear from that they have left this matter open. The judge on the Ninth Circuit found that the question was an open question after Heller.

To say it is ``settled law'' that the second amendment does not apply to the States is not good, in my view. It is not settled law. I would certainly hope, and millions of Americans will be hoping, that the Supreme Court will not rewrite the Constitution; rather, they hope they will declare that the second amendment does apply to the States.

Further, she said it was not a fundamental right. That was not a phrase used by the other two courts which considered this question, and it is gratuitous, in my opinion. The combination of saying it is not a fundamental right, which is important to the ultimate analysis, and her statement that it is ``settled law'' that the second amendment does not apply to the States indicates a lack of appreciation for the importance of the second amendment right and a hostility toward the second amendment.

And similarly troubling were the judge's equivocations as to whether she would appropriately recuse herself from considering this issue that will surely come before her on the Supreme Court. She declined to commit to recusing herself if the Seventh or Ninth Circuit cases came to the Court, even though those cases raise exactly the same issue as the one she decided against gun rights. I would note also that even the Heller case--breathtaking to me--decided by a narrow vote of 5-4 that a right to keep and bear arms provided in the Constitution explicitly applies to bar the city of Washington, DC, from banning all firearms, basically.

In addition to the firefighters case and the second amendment case, both of which involve important issues of constitutional law, Judge Sotomayor handled, in a similarly cursory manner, a very important private property rights case which some have called the most egregious property rights decision in this area since the Supreme Court's infamous decision in the Kelo case a few years ago.

Just 3 years ago, after Kelo was decided, which caused quite a storm of controversy and a great deal of academic writing, Judge Sotomayor's court issued an opinion in which a private property owner found his property, on which he planned to build a CVS pharmacy, taken by condemnation by the city so that another private developer could build a Walgreen's on the same property. The way this condemnation came about should send chills down the spines of ordinary Americans, because the Walgreen developer, who was pursuing a redevelopment plan supported by the city, told the landowner that he could keep his land and build a CVS and they wouldn't condemn it. All he had to do was fork over $800,000 or half ownership in his business. I look at that and I can understand why the landowner thought he was being blackmailed. Judge Sotomayor looked at that and called it business as usual--a simple negotiation. But it is no negotiation when one party possesses the power through the city to take your property, whether you agree or not.

In another curiously short 2-page opinion, Judge Sotomayor's court rejected the landowner's claims, holding that the courtroom doors were closed to the landowner because he had brought his claim too late. The logic was that the landowner had to bring his claim to court months before the extortion occurred. The effect was to violate the Constitution. The Constitution plainly states that property ``shall not be taken for public use without just compensation.'' The Supreme Court has been quite clear that means you can't take private property except for public use.

At Judge Sotomayor's hearing, Professor Ilya Somin, who has written extensively on property matters, said this case was the most anti- property rights case since the infamous Kelo decision decided by a split Court a few years ago. Again, plain constitutional protections were ignored to the detriment of an individual American citizen who was standing up for his constitutional rights.

So in three cases, contrary to the plain text of the Constitution, Judge Sotomayor has ruled against the individual and in favor of the State in the face of seemingly clear provisions of the Constitution, furthering what can be fairly said to be, in each case, a more liberal agenda in America. A liberal or a conservative political belief, a Republican or Democratic political belief does not disqualify someone from serving on the Supreme Court. What does disqualify is when a judge allows such beliefs or ideology or opinions to impact decisions that they make in cases.

Anyone with more than a casual acquaintance with the law would instantly know that each of these three cases presented issues of great legal importance, and each deserved to be treated with great thoughtfulness. Judge Sotomayor surely understood that fact. Yet in each instance her decisions were unacceptably short. It seemed to me the only consistency in them was that the result favored a more liberal approach to government.

So I have come to announce, regretfully, that I cannot support Judge Sotomayor's elevation to our highest Court. She also now sits in a lifetime appointment on the Nation's second highest court, the Court of Appeals. Her experience, however well rounded, and background, however inspirational, are not enough. What matters is her record on the bench and her stated judicial philosophy.

I hope I am wrong, but my best judgment, my decision is that a Sotomayor vote on the Court--the Supreme Court--will be another vote for the new kind of ideological judging, not the kind of objectivity and restraint that have served our legal system in our Nation so well. Thus, I am unable to give my consent to this nomination.

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

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

Mr. President, I want to make a few comments on the Defense bill that passed late last night. Senator Levin and Senator McCain did a very fine job in working through all the difficulties we faced and tried to put together a bill that would support our troops. Indeed, I was on a video conference this at noon with a group of Alabama National Guardsmen and their families, an MP company from Prattville, AL, that is undertaking its third deployment. The company was last deployed to Guantanamo and now they will be going to Iraq. We owe a great deal to these people who put their lives on the line for us. They leave their families and loved ones and go into harm's way to execute the policies that we have set. As a result, we must never forget what we owe them. I hope we never do.

I think the bill we passed has some good things in it. Some are troubling to me. I did not speak last night, in the late evening, about section 1031 of the National Defense Authorization Act entitled ``Military Commissions and al-Qaida.'' It was an important little amendment and I want to share a few thoughts about it.

What we discovered was in the Defense authorization bill, al-Qaida was removed from the unlawful enemy combatant definition. My amendment put that back into the bill. If you are a member of al-Qaida, you have earned the designation of an unlawful enemy combatant, or belligerent. We are now using the words unlawful enemy belligerent. Those individuals are people who operate outside the rules of warfare. They do not wear uniforms. They deliberately and systematically target women and children and innocents. They do not comply with the rule of law, the Geneva Conventions, and they, therefore, are not given the normal and full protections of the Geneva Conventions.

A person who is at war with the United States, as al-Qaida has repeatedly announced that it is, who does their military activities without complying with the Geneva Conventions, deserves to be attacked. They deserve to be killed or captured by the U.S. military. If captured, they deserve either to be prosecuted or held until the hostilities are over. That is what the

historic rules of warfare are, it is what we have always done, and we need not be confused in this war and start treating it as if it were some sort of criminal activity. Doing so would compromise our ability to be effective and place at greater risk those individuals whom we send in harm's way, such as the 217th Military Police troop from Prattville, AL, which is going to Iraq. We don't need to be confused about what this is. It is not a law enforcement operation.

We also adopted an amendment last night that prohibited the intelligence communities of the United States, our agencies or our military, from giving Miranda warnings to people captured on the battlefield. Giving Miranda warnings to unlawful enemy combatants is unthinkable. It is a confusing thing. What you are basically telling these people that we capture is: Don't talk, we will give you a lawyer.

In fact, some of the NGOs, were telling Americans not to talk to them and ask for lawyers, because we were beginning to give Miranda warnings.

The premise of this amendment is not an overreach. It is consistent with our law.

Make no mistake, al-Qaida has announced it is and continues to be at war with the United States. We are at war with them. We cannot mince words. We cannot lead the world to believe that we have softened our resolve to defeat this enemy that threatens us.

According to a CNN report from July 15, 2009, al Zawahiri, bin Laden's deputy, called on Muslims to join in a jihad against the United States. I wish that were not so but that is what it is. Last week a terrorist group affiliated with al-Qaida targeted two American-owned hotels in Jakarta, Indonesia. On July 21, just a few days ago, a Wall Street Journal article pointed out last week's hotel bombings were not some isolated event:

In the 19 months leading up to the Jakarta attacks, Islamic

terrorists have brought their holy war to upscale properties

in Kabul, Afghanistan; Islamabad, Pakistan; Mumbai, India;

and Peshawar, Pakistan. The casualties thus far number 116

people killed and hundreds more injured.

I ask my colleagues, in the middle of the war against al-Qaida, is it wise to remove al-Qaida from the definition of unlawful enemy combatant, or even the new form ``unprivileged enemy belligerent''? That is the new word we are using and perhaps it is all right. I don't know why we changed. But we have to be careful the words we use.

Can anyone imagine the Congress removing ``Nazi'' from the wartime definitions in the middle of the Second World War? What do we hope to achieve by taking al-Qaida's name out?

Fortunately, last night it was put back in. But what would have been achieved by removing their name from that list of organizations against which we are at war?

The original Military Commissions Act passed in 2006 made it clear that the unlawful enemy combatant definition covered hostile groups ``including a person who is part of . . . al-Qaida, or associated forces.''

Let's be clear about what removing al-Qaida from the definition would have meant in the legal proceedings related to detainees. It will cloud them under uncertainty and ambiguity. Judges, whether military or civilian, will have to second guess whether al-Qaida members are truly eligible to be held as enemy combatants.

This is not an unjustified concern. Let me tell you about one case where a Federal judge questioned whether an al-Qaida member who fought in the jihad could still be held as an enemy combatant. On April 15 of this year, Judge Huvelle of the U.S. District Court for the District of Columbia granted the habeas corpus petition of Yasin Muhammed Basardh, over the objections of the Obama administration.

Habeas corpus petition is a right of a person in the United States who is held by the Government to ask why they are being held. It is referred to in the Constitution. Many of my colleagues have said you are denying these prisoners habeas corpus petitions--denying them, taking away something to which they are entitled.

I would point out that is not correct. Nobody ever understood habeas corpus, as referred to at the founding of our Republic, as something applied to people captured in war against the United States. That was never what it meant. It is only a most recent incorrect definition of habeas that applied it to people who are trying to kill Americans and are at war against Americans. Some of the courts are confused on this, in my view. Congress has been a bit confused about it also.

But Judge Huvelle, unwisely, I think, concluded that the United States could no longer hold Mr. Basardh because he no longer posed a realistic risk of joining the enemy--in his opinion. Judge Huvelle is not involved in the war. He is sitting safe and comfortable here in the District of Columbia. The execution of a war is placed in the hands of the men and women in the military to protect our country, whose lives are on the line.

So this judge reached this conclusion because Basardh was cooperative while in custody at Guantanamo Bay. In her decision in 2009, Judge Huvelle failed to mention the many salient facts that showed why the Obama administration and the Bush administration before it opposed this man's release. According to unclassified Administrative Review Board records, Basardh was closely associated with al-Qaida, and directly linked to Osama bin Laden. He admitted to:

No. 1, traveling from Yemen to Afghanistan to join the jihad, saying, ``Yes, I did go to Afghanistan for the Jihad.''

No. 2, training at the al-Qaida-run al Farouq camp near Kandahar in Afghanistan;

No. 3, staying at Osama bin Laden's house in Kabul when the U.S. bombing began. ``It was Osama bin Laden's private house,'' he said.

No. 4, meeting with bin Laden himself on numerous occasions.

No. 5, responding to Osama bin Laden's call for all fighters to retreat and assemble at Tora Bora and,

No. 6, being in the cave with Osama bin Laden at Tora Bora.

If Federal courts are going to second guess the military on cases like Basardh under the current Military Commissions Act, Congress certainly should not weaken this act any more and give them any more ability to undermine our efforts.

To the contrary, Congress should be crystal clear that membership in al-Qaida qualifies a detainee for unprivileged enemy belligerent status. My amendment removed any doubt over the detention of anyone who is a member of al-Qaida or served in its aid. My amendment will make clear that cases like this should not happen again. Simply put, if you are a member of al-Qaida you are going to be detained and held until the war is over, in the same way Nazi army prisoners of war treated during World War II.

I urge my colleagues to think about this, to make sure we are fully cognizant of the dangers our country faces, and retain this language that was initially omitted, keeping al-Qaida by name as a group which we are at war against. It is important that doesn't get removed by the conference committee. I am going to be watching. I think it is a big deal.

Oftentimes when the conference committee meets, they make substantive changes in the bill. Following conference, it will come back to the floor, and at that time we will be unable to amend it. I am going to watch. I think the American people need to know we are not confused in our thinking. We know against whom we are at war and we are committed to this effort and we are supporting our fabulous men and women who place their lives at risk for us. We must not undermine their efforts by creating circumstances in which Federal judges can treat military captives as ordinary criminals with all the rights pertaining thereto.

I yield the floor.

Mr. President, I ask unanimous consent that we set aside consideration of the Burr amendment and that I be able to call up amendment No. 1657.

Mr. President, I understand the difficulties Senator Levin has, but we are moving to final passage. Cloture has been filed. It is important that this amendment be considered. I get a little nervous when things are not moving along in a way that I think they should or at least in a way that could cause this amendment not to be considered. I wish to speak briefly about it so it will be clear what it is we are talking about.

The amendment I sought to bring up would preempt any Federal Executive, that is Presidential, requirement that our troops in the field, in Afghanistan and Iraq, read Miranda warnings to al-Qaida terrorists whom they capture.

The amendment would also clarify that nothing in Federal law requires that our soldiers read Miranda warnings or give any other kind of warning to captured terrorists, and it preempts any efforts to enforce such a requirement through an exclusionary rule. That is, denying admissibility of evidence if it does not occur.

Miranda is the warning, as most watchers of television detective programs know, in which an individual who is detained by a police officer in the United States on suspicion of some crime is told they have a right to remain silent and they have a right to have a lawyer, or have one appointed for them.

The question is, How did we get to the point that we are now having soldiers in the field being asked to give Miranda warnings?

One person, I think, who would agree with me--although recent activities cause me concern--is our Commander in Chief, President Obama. In a recent interview on the TV show ``60 Minutes,'' he was asked about the terrorist detainees, and this is what President Obama said:

Do these folks deserve Miranda rights? Do they deserve to

be treated like a shoplifter down the block? Of course not.

``Of course not.'' I couldn't have said that with more clarity myself. Of course, we should not be giving Miranda warnings to captured terrorists on the battlefield. Unfortunately, not all of the subordinates in the current administration seem to understand this message.

A recent article in the magazine the Weekly Standard describes why the amendment is necessary. As this article explains, the current administration appears to be requiring our soldiers to read Miranda warnings to terrorists whom they capture in the field in Afghanistan. And the article further notes, according to former CIA Director George Tenet, who was appointed originally by President Clinton and served under President Bush, that we would not have obtained the valuable information we did from Khalid Shaikh Mohammed, the planner of the 9/11 attacks, if he had been given his Miranda rights--or been given Miranda rights, not his, because we have never given Miranda rights to captured soldiers in any kind of conflict in the history of the Republic.

The following is from the Weekly Standard:

When 9/11 mastermind Khalid Shaikh Mohammed was captured on

March 1, 2003, he was not cooperative. ``I'll talk to you

guys after I get to New York and see my lawyer,'' he said,

according to CIA Director George Tenet. Of course, Khalid

Shaikh Mohammed did not get a lawyer until months later,

after his interrogation was completed, and Tenet says that

the information the CIA obtained from him disrupted plots and

saved lives. ``I believe none of these successes would have

happened if we had had to treat KSM like a white-collar

criminal--read him his Miranda rights and get him a lawyer,

who surely would have insisted that his client simply shut

up.

That was Mr. Tenet's view as stated in his memoirs just a couple of years ago.

If Mr. Tenet is right, it is a good thing KSM was captured before President Obama became President, for the Justice Department has quietly ordered the FBI to read Miranda rights to high-value detainees captured and held at U.S. detention facilities in Afghanistan.

According to a senior Republican on the House Intelligence Committee:

The administration has decided to change the focus to law

enforcement. Here's the problem. You have foreign fighters

who are targeting U.S. troops today--foreign fighters who go

to another country to kill Americans. We capture them, and

they're reading them their rights--Mirandizing these foreign

fighters.

That was a quote from Representative Mike Rogers, who recently met with the military and intelligence and law enforcement officials on a factfinding trip to Afghanistan.

Rogers, a former FBI special agent and a U.S. Army officer, says the Obama administration has not briefed Congress on the new policy. He is quoted as saying:

I was a little surprised to find it taking place when I

showed up because we hadn't been briefed on it. I didn't know

about it. We're still trying to get to the bottom of it, but

it is clearly a part of this new global justice initiative.

Representative Pete Hoekstra, the ranking Republican on the House Intelligence Committee, said this:

When they Mirandize a suspect, the first thing they do is

warn them that they have the right to remain silent. It would

seem the last thing we want is Khalid Shaikh Mohammed or any

other al-Qaida terrorist to remain silent. Our focus should

be on preventing the next attack, not giving radical

jihadists a new tactic to resist interrogation--lawyering up.

According to Mike Rogers, that is precisely what some human rights organizations are now advising detainees to do. He says:

The International Red Cross, when they go into these

detention facilities, has now started telling people--``Take

the option. You want a lawyer.''

And Rogers adds:

The problem is you take that guy at 3 in the morning off of

a compound right outside of Kabul, where he's building bomb

materials to kill U.S. soldiers, and read him his rights by

4, and the Red Cross is saying take the lawyer, you have now

created quite a confusion amongst the FBI, the CIA and the

United States military. And confusion is the last thing you

want in a combat zone.

This is from Congressman Rogers, a former FBI agent and a former Army officer.

So one thing is clear: A detainee who is not talking cannot provide information about future attacks. Had Khalid Shaikh Mohammed had a lawyer, Tenet wrote in his book, `` . . . I am confident that we would have obtained none of the information he had in his head about the eminent threat against the American people.''

Mr. President, one thing we have to get straight in our minds is that we are in a state of war against al-Qaida types and others around the world, and that calls for an entirely different approach to dealing with the people you capture. In fact, before you capture them, you have the authority to shoot them and kill them. We have the ability to drop bombs on them, which results in death. You don't do that in law enforcement situations against drug dealers or against white-collar criminals. These are not criminals, they are unlawful enemy combatants. They are not lawful because they do not operate according to the rules of war.

The Geneva Conventions require that a lawful combatant, an enemy soldier, or any kind of soldier from any country wear their uniform so that you can identify them by their uniform and do not target civilian personnel gratuitously. Among other requirements, these are some of the rules of war. But they have never been given the rights of a common criminal.

So I feel strongly about this issue. And I would note parenthetically that the Supreme Court has not held that Miranda is even a constitutional requirement. They passed it as a prophylactic policy to help police officers do a better job, the Court thought, in doing their work. It is not a requirement. So

it is a big mistake. I believe it is a road we should not go down, requiring these warnings, and if we do, it is an absolutely clear signal that we are confused about the nature of the deadly enterprise in which we are engaged, which is defending this country and our allies from attack by a violent, determined enemy.

I thought after 9/11 there was a consensus in this body that terrorists and enemy combatants were different from criminals. I thought the 9/11 Commission went into that, and I thought there was a bipartisan consensus on that. So I am concerned about it. It suggests to me that we are confused about the nature of this life-and-death struggle we are in. We are confused about the risk our soldiers are being subjected to every day on the battlefield. And they ought not to be placed in a situation where an additional burden is put on them that is not justified by law or common sense.

So I hope we get a vote on this, and I hope we are able to send the message that this is not the right policy and we need to make sure we stop it and nip it in the bud.

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

Mr. President, I wish to join my colleague, Senator Lieberman, in introducing amendment No. 1744, concerning the deployment of missile defenses in Europe, and also thank him for his leadership on this issue over many years. He is clearly one of the most effective spokesmen for clear and strategic thinking and has helped us for many years to establish good defense policy for our Nation.

As Senator Lieberman has explained, this amendment would state it is the sense of the Congress that the administration should continue to develop the planned missile defense deployment through Poland and the Czech Republic, even as it considers other alternatives.

Further, it would state that any alternative to the current plan must be as effective and affordable, and, most important, must be able to defend the United States as well as Europe against long-range ballistic missiles.

This amendment is important at this time because the administration is now considering alternatives to the plan long pursued by the Bush administration to station ground-based interceptors in Poland, a missile-tracking radar system in the Czech Republic. Both Poland and the Czech Republic have signed agreements to host these missile defense assets after being told by the United States that we believed the plan is important to protect Europe and the United States from rogue states, more specifically, Iran's developing missile capability.

After much effort and political capital has been expended, both in the United States and by our Polish and Czech Republic allies and friends, now the project has been put in somewhat of a limbo, I am afraid.

Russia and the domestic left opposed this plan from the beginning. They lobbied the people and members of Congress in Poland and the Czech Republic to not do it. But they have gone forward with it today. If the objections of the United States to this system arise from Czech reasons, then I would refer my colleagues to a February 2009 CBO study Senator Lieberman cited, ``Options for Deploying Missile Defense in Europe,'' which came to the conclusion that a ground-based interceptor deployment in Poland and the Czech Republic is the most effective and affordable option available for the foreseeable future.

The CBO concluded: ``This is the most effective and affordable option for the foreseeable future.''

Other options apparently now under consideration include the deployment of a land- or sea-based version of the Standard Missile 3, SM-3 which is now deployed on Aegis ships of the United States.

The CBO found that this option, the SM-3, will not available until late in the next decade, is no less expensive than the GBI option and does not provide protection for the United States against long-range Iranian missiles. In other words, while the deployment of a land- or sea-based version of SM-3 may be suitable to protect Europe against medium- and intermediate-range missile threats, it would not contribute to the defense of the United States which could occur from the launch of an ICBM, an intercontinental ballistic missile, which would travel at a much higher altitude.

Likewise, Admiral Stavridis, the new commander of the U.S. European Command, testified before the Senate Armed Services Committee during a hearing last month:

Sea-based and transportable land-based assets are integral

components of a comprehensive ballistic missile defense

system but cannot defeat the entire range of threats by

themselves. Sophisticated sensors are required for early

acquisition and target determination, and ground-based

interceptors are needed to defeat longer-range missiles.

The missile Iran seeks to develop, and is moving forward to develop, would be capable of hitting the United States. Now they are seeking to develop ICBMs, and they are actively pursuing nuclear weapons, as we all know.

Why, I would ask my colleagues, would we want to consider alternatives to the proposed GBI deployment in Europe that would not save any money and would not provide additional protection for the United States?

I would recall the comments former Secretary of State Henry Kissinger made a few years ago about missile defense and whether we should deploy. His comment was: I have never heard of a nation whose policy it is to keep itself vulnerable to attack.

Well, we do not need to be kept vulnerable to attack. We have the capability to defend ourselves and protect against incoming missiles. Some have suggested that such additional protection is not needed, that current ground-based interceptors deployed at our missile defense site in Fort Greely, AK, can provide complete protection for the United States against Iranian threats.

But that argument does not tell the complete story. The truth is, deploying GBIs in Europe would provide an early opportunity to intercept Iranian missiles headed to the east coast, which could then be followed by an intercept attempt by Alaska, providing the United States an extra layer of protection. Just 10 missiles could provide a great additional protection for the United States. That is what is needed, an integrated, layered, ballistic missile defense shield that effectively protects America and her allies from rogue attack.

Most Americans think we are adequately protected. I do remember a townhall meeting I held, and I asked the people there: What would happen if a missile was launched at the United States? They said: We would shoot it down. Well, that was before our system was up and running in Alaska, and it was not accurate. People think we do have a fully operational system, but we only have a few of those missiles up in Alaska, and we need this additional shield in Europe.

Without the site in Poland, the United States would have only one opportunity to engage Iranian missiles headed for certain portions of our country. Why should we take that risk?

Although the search for alternatives may please the Russians, it would perversely send the wrong message to our NATO allies and, in particular, to our friends in Poland and the Czech Republic who, despite pressure and threats from Russia, have agreed and stood firm and expressed their willingness to host these missile defense assets on their territory.

I would remind my colleague that NATO, the North Atlantic Treaty Organization, the most successful defense treaty in the history of the world, endorsed the current plan at the April 2008 Bucharest Summit and noted in their declaration:

We therefore recognize the substantial contribution to the

protection of Allies from long-range ballistic missiles to be

provided by the planned deployment of European-based United

States missile defense assets.

I also understand the Polish and Czech Parliaments have yet to ratify the agreements, and the ambivalence presented by the Obama Administration now regarding what was a firm policy of the United States, means, frankly, it is unlikely they will do so until our administration completes its consideration of alternatives. This has placed our situation in limbo. I am not happy with that. I think it was a mistake.

After all, why should those parliaments take up an agreement that the United States may pull off the table? This unfortunate event was obvious from the beginning when we backed away from our plan and started showing uncertainty. It is obvious the political support in Central Europe may erode.

I am left to conclude that the reason the administration is pursuing alternatives in this current plan is its hopes it will address Russian objections about the proposed deployment as part of a grand strategy to reset relations with Russia and conclude a follow-on to the START nuclear reduction agreement. I am not confident in this effort. In fact, it seems to, instead of moving our relations forward, have moved them backward.

Let me make note of some recent events. Just days after the United States and Russia reached a broader agreement on arms reductions and missile defense cooperation at the July 6 Moscow summit, Reuters News Agency reported, on July 10, 4 days later, that Russian President Medvedev threatened the United States that if it did not reach agreement with Russia on our joint NATO/Polish/Czech plans for

missile defense systems, Moscow would deploy rockets in an enclave near Poland.

Typical Russian bluster, threat. Likewise, Russian Foreign Minister Sergey Lavrov has threatened to end arms control talks with the United States if we pursue cooperation with our allies on missile defense, a system that in no way threatens Russia's massive nuclear capability, and they know it.

Ten interceptors of the United States in Europe are going to somehow have a capability to stop the thousands of Russian missiles and nuclear weapons that they have? Russia knows that our defenses would be no match.

As reported by the Associated Press, just 1 day after the summit, Lavrov stated:

If our partners make a decision to create an American

missile defense system with global reach, then that will

doubtless place a big question mark over the prospects for

further reduction in strategic offensive weapons.

Again, this is, unfortunately, a regressive approach by Russia on issues that I do not think is justified. It seems we are falling back into a darker approach to world affairs with threats instead of working together to build a more peaceful and prosperous, harmonious world.

If, in fact, there were technical arguments in favor of alternative deployments, which there are not, Russian belligerence would now indeed be an argument for proceeding, nevertheless.

The former Prime Minister of the Czech Republic, Mirek Topolanek, put the issue in its proper perspective when he stated:

The moral challenge is clear and simple: If we are not

willing to accept in the interests of the defense of the

Euro-Atlantic area such a trifle as the elements of a missile

defense system, then how shall we be able to face more

difficult challenges that may come?

That is an important statement. Are we losing confidence in ourselves? He is not alone in that view. Just last week, 22 prominent Eastern European political figures of important historic importance, including Poland's Lech Walesa and the Czech Republic's Vaclav Havel, published an open letter to President Obama expressing their uneasiness over U.S. maneuvers with Russia. This letter was sent to address their concerns in light of what appears to them to be Russia's attempt to reassert its influence over Russia's former Eastern European satellites. These are independent nations. They have been freed from Soviet domination. It is not their desire to kowtow to Russia and to have to seek Russia's permission over whether to put a radar site in their country. They are sovereign nations.

These leaders noted in their letter that America's planned missile defense installations in Poland and the Czech Republic have become ``a symbol of America's credibility and commitment in the region.'' They further warned that:

The Alliance should not allow the issue to be determined by

unfounded Russian opposition. Abandoning the program entirely

or involving Russia too deeply in it without consulting

Poland or the Czech Republic can undermine the credibility of

the United States across the whole region.

I don't think that is no small matter. These are historic figures in Eastern Europe who suffered under the Communist boot. They do not want to go back. They are sending us a message. They are great American allies. They believe in freedom and democracy. This is not an academic matter to them, it is very real.

I ask unanimous consent to have this letter printed in the Record at the conclusion of my remarks.

On March 5, Secretary of State Hillary Clinton ``applaud[ed] the decision by the people of the Czech Republic and their government--as well as the people and Government of Poland--for proceeding with missile defense on their soil.'' That was just in March of this year. The United States should honor this commitment by proceeding with the missile defense deployment as planned and not be affected by Russia's unfounded objections. I remain baffled by their objections, other than, perhaps, this is a way they think they can extract concessions from the United States as a bargaining chip.

As the CBO study referenced above makes clear:

Only the Polish and Czech deployments can protect the

United States and Europe. Any other option costs more and

defends the U.S. less, if at all.

I ask my colleagues to support this message. It will be good for our country to be clear on this question and for Congress to speak up.

I express a concern about what has happened in this budget to national missile defense. It represents a major reduction in spending for missile defense. We intend to deploy 44 missiles in Alaska. The budget proposes, I believe, now just 30. It was proposed and part of the agenda for the last number of years to place a multikill vehicle on top of these interceptors so it could take out dummies and decoys and multiple missiles. That was zeroed out, ended in this budget. For a number of years, we have been funding research and development of the kinetic energy interceptor. That is a high-speed system that can take out missiles in the launch phase, which is the best phase to do so. That was zeroed out. There was the airborne laser which has the capability of shooting down missiles in their launch phase when they have so much heat coming out of them. It is funded for 1 more year, and it will be ended, apparently. Of course, now the 10 interceptors in Europe are in question.

We need to be sure we understand how seriously we are impacting the long-term strategy of the United States. We have spent $20 billion to develop a system that will actually work at incredible rates of speed, with hit-to-kill technology to knock down an incoming missile. After all of these investments and all these years, for $1 billion we could complete the program. We are saving about $150, $200 million this year that would have kept us on track. Maybe we can keep the system going forward. I hope so with this resolution and some other things.

But the American people need to know that we are not talking about a minor retrenchment of national missile defense in the budget that has come forward out of our committee. It represents the biggest reduction of missile defense funding during my time in the Senate, over 12 years.

I hope that as the months go along we will be able to reevaluate what we are doing and make sure we don't abandon the progress we have made and take full advantage of decades of research and development that has produced a system that will work to protect us.

I yield the floor.

[July 15, 2009]

Exhibit 1

An Open Letter to the Obama Administration from Central and Eastern

Europe

(By Valdas Adamkus, Martin Butora, Emil Constantinescu, Pavol Demes, Lubos Dobrovsky, Matyas Eorsi, Istvan Gyarmati, Vaclav Havel, Rastislav

Kacer, Sandra Kalniete, Karel Schwarzenberg, Michal Kovac, Ivan Krastev, Alexander Kwasniewski, Mart Laar, Kadri Liik, Janos Martonyi,

Janusz Onyszkiewicz, Adam Rotfeld, Vaira Vike-Freiberga, Alexandr

Vondra, Lech Walesa)

We have written this letter because, as Central and Eastern

European (CEE) intellectuals and former policymakers, we care

deeply about the future of the transatlantic relationship as

well as the future quality of relations between the United

States and the countries of our region. We write in our

personal capacity as individuals who are friends and allies

of the United States as well as committed Europeans.

Our nations are deeply indebted to the United States. Many

of us know firsthand how important your support for our

freedom and independence was during the dark Cold War years.

U.S. engagement and support was essential for the success of

our democratic transitions after the Iron Curtain fell twenty

years ago. Without Washington's vision and leadership, it is

doubtful that we would be in NATO and even the EU today.

We have worked to reciprocate and make this relationship a

two-way street. We are Atlanticist voices within NATO and the

EU. Our nations have been engaged alongside the United States

in the Balkans, Iraq, and today in Afghanistan. While our

contribution may at times seem modest compared to your own,

it is significant when measured as a percentage of our

population and GDP. Having benefited from your support for

liberal democracy and liberal values in the past, we have

been among your strongest supporters when it comes to

promoting democracy and human rights around the world.

Twenty years after the end of the Cold War, however, we see

that Central and Eastern European countries are no longer at

the heart of American foreign policy. As the new Obama

Administration sets its foreign-policy priorities, our region

is one part of the

world that Americans have largely stopped worrying about.

Indeed, at times we have the impression that U.S. policy was

so successful that many American officials have now concluded

that our region is fixed once and for all and that they could

``check the box'' and move on to other more pressing

strategic issues. Relations have been so close that many on

both sides assume that the region's transatlantic

orientation, as well as its stability and prosperity, would

last forever.

That view is premature. All is not well either in our

region or in the transatlantic relationship. Central and

Eastern Europe are at a political crossroads and today there

is a growing sense of nervousness in the region. The global

economic crisis is impacting on our region and, as elsewhere,

runs the risk that our societies will look inward and be less

engaged with the outside world. At the same time, storm

clouds are starting to gather on the foreign policy horizon.

Like you, we await the results of the EU Commission's

investigation on the origins of the Russo-Georgian war. But

the political impact of that war on the region has already

been felt. Many countries were deeply disturbed to see the

Atlantic alliance stand by as Russia violated the core

principles of the Helsinki Final Act, the Charter of Paris,

and the territorial integrity of a country that was a member

of NATO's Partnership for Peace and the Euroatlantic

Partnership Council--all in the name of defending a sphere of

influence on its borders.

Despite the efforts and significant contribution of the new

members, NATO today seems weaker than when we joined. In many

of our countries it is perceived as less and less relevant--

and we feel it. Although we are full members, people question

whether NATO would be willing and able to come to our defense

in some future crises. Europe's dependence on Russian energy

also creates concern about the cohesion of the Alliance.

President Obama's remark at the recent NATO summit on the

need to provide credible defense plans for all Alliance

members was welcome, but not sufficient to allay fears about

the Alliance's defense readiness. Our ability to continue to

sustain public support at home for our contributions to

Alliance missions abroad also depends on us being able to

show that our own security concerns are being addressed in

NATO and close cooperation with the United States.

We must also recognize that America's popularity and

influence have fallen in many of our countries as well.

Public opinions polls, including the German Marshall Fund's

own Transatlantic Trends survey, show that our region has not

been immune to the wave of criticism and anti-Americanism

that has swept Europe in recent years and which led to a

collapse in sympathy and support for the United States during

the Bush years. Some leaders in the region have paid a

political price for their support of the unpopular war in

Iraq. In the future they may be more careful in taking

political risks to support the United States. We believe that

the onset of a new Administration has created a new opening

to reverse this trend but it will take time and work on both

sides to make up for what we have lost.

In many ways the EU has become the major factor and

institution in our lives. To many people it seems more

relevant and important today than the link to the United

States. To some degree it is a logical outcome of the

integration of Central and Eastern Europe into the EU. Our

leaders and officials spend much more time in EU meetings

than in consultations with Washington, where they often

struggle to attract attention or make our voices heard. The

region's deeper integration in the EU is of course welcome

and should not necessarily lead to a weakening of the

transatlantic relationship. The hope was that integration of

Central and Eastern Europe into the EU would actually

strengthen the strategic cooperation between Europe and

America.

However, there is a danger that instead of being a pro-

Atlantic voice in the EU, support for a more global

partnership with Washington in the region might wane over

time. The region does not have the tradition of assuming a

more global role. Some items on the transatlantic agenda,

such as climate change, do not resonate in the Central and

Eastern European publics to the same extent as they do in

Western Europe.

Leadership change is also coming in Central and Eastern

Europe. Next to those, there are fewer and fewer leaders who

emerged from the revolutions of 1989 who experienced

Washington's key role in securing our democratic transition

and anchoring our countries in NATO and EU. A new generation

of leaders is emerging who do not have these memories and

follow a more ``realistic'' policy. At the same time, the

former Communist elites, whose insistence on political and

economic power significantly contributed to the crises in

many CEE countries, gradually disappear from the political

scene. The current political and economic turmoil and the

fallout from the global economic crisis provide additional

opportunities for the forces of nationalism, extremism,

populism, and anti-Semitism across the continent but also in

some of our countries.

This means that the United States is likely to lose many of

its traditional interlocutors in the region. The new elites

replacing them may not share the idealism--or have the same

relationship to the United States--as the generation who led

the democratic transition. They may be more calculating in

their support of the United States as well as more parochial

in their world view. And in Washington a similar transition

is taking place as many of the leaders and personalities we

have worked with and relied on are also leaving politics.

And then there is the issue of how to deal with Russia. Our

hopes that relations with Russia would improve and that

Moscow would finally fully accept our complete sovereignty

and independence after joining NATO and the EU have not been

fulfilled. Instead, Russia is back as a revisionist power

pursuing a 19th-century agenda with 21st-century tactics and

methods. At a global level, Russia has become, on most

issues, a status-quo power. But at a regional level and vis-

a-vis our nations, it increasingly acts as a revisionist one.

It challenges our claims to our own historical experiences.

It asserts a privileged position in determining our security

choices. It uses overt and covert means of economic warfare,

ranging from energy blockades and politically motivated

investments to bribery and media manipulation in order to

advance its interests and to challenge the transatlantic

orientation of Central and Eastern Europe.

We welcome the ``reset'' of the American-Russian relations.

As the countries living closest to Russia, obviously nobody

has a greater interest in the development of the democracy in

Russia and better relations between Moscow and the West than

we do. But there is also nervousness in our capitals. We want

to ensure that too narrow an understanding of Western

interests does not lead to the wrong concessions to Russia.

Today the concern is, for example, that the United States and

the major European powers might embrace the Medvedev plan for

a ``Concert of Powers'' to replace the continent's existing,

value-based security structure. The danger is that Russia's

creeping intimidation and influence-peddling in the region

could over time lead to a de facto neutralization of the

region. There are differing views within the region when it

comes to Moscow's new policies. But there is a shared view

that the full engagement of the United States is needed.

Many in the region are looking with hope to the Obama

Administration to restore the Atlantic relationship as a

moral compass for their domestic as well as foreign policies.

A strong commitment to common liberal democratic values is

essential to our countries. We know from our own historical

experience the difference between when the United States

stood up for its liberal democratic values and when it did

not. Our region suffered when the United States succumbed to

``realism'' at Yalta. And it benefited when the United

States used its power to fight for principle. That was

critical during the Cold War and in opening the doors of

NATO. Had a ``realist'' view prevailed in the early 1990s,

we would not be in NATO today and the idea of a Europe

whole, free, and at peace would be a distant dream.

We understand the heavy demands on your Administration and

on U.S. foreign policy. It is not our intent to add to the

list of problems you face. Rather, we want to help by being

strong Atlanticist allies in a U.S.-European partnership that

is a powerful force for good around the world. But we are not

certain where our region will be in five or ten years time

given the domestic and foreign policy uncertainties we face.

We need to take the right steps now to ensure the strong

relationship between the United States and Central and

Eastern Europe over the past twenty years will endure.

We believe this is a time both the United States and Europe

need to reinvest in the transatlantic relationship. We also

believe this is a time when the United States and Central and

Eastern Europe must reconnect around a new and forward-

looking agenda. While recognizing what has been achieved in

the twenty years since the fall of the Iron Curtain, it is

time to set a new agenda for close cooperation for the next

twenty years across the Atlantic.

Therefore, we propose the following steps:

First, we are convinced that America needs Europe and that

Europe needs the United States as much today as in the past.

The United States should reaffirm its vocation as a European

power and make clear that it plans to stay fully engaged on

the continent even while it faces the pressing challenges in

Afghanistan and Pakistan, the wider Middle East, and Asia.

For our part we must work at home in our own countries and in

Europe more generally to convince our leaders and societies

to adopt a more global perspective and be prepared to

shoulder more responsibility in partnership with the United

States.

Second, we need a renaissance of NATO as the most important

security link between the United States and Europe. It is the

only credible hard power security guarantee we have. NATO

must reconfirm its core function of collective defense even

while we adapt to the new threats of the 21st century. A key

factor in our ability to participate in NATO's expeditionary

missions overseas is the belief that we are secure at home.

We must therefore correct some self-inflicted wounds from the

past. It was a mistake not to commence with proper Article 5

defense planning for new members after NATO was enlarged.

NATO needs to make the Alliance's commitments credible and

provide strategic reassurance to all members. This should

include contingency planning, prepositioning of forces,

equipment, and supplies for reinforcement in our region in

case of crisis as originally envisioned in the NATO-Russia

Founding Act.

We should also re-think the working of the NATO-Russia

Council and return to the practice where NATO member

countries enter

into dialogue with Moscow with a coordinated position. When

it comes to Russia, our experience has been that a more

determined and principled policy toward Moscow will not only

strengthen the West's security but will ultimately lead

Moscow to follow a more cooperative policy as well.

Furthermore, the more secure we feel inside NATO, the easier

it will also be for our countries to reach out to engage

Moscow on issues of common interest. That is the dual track

approach we need and which should be reflected in the new

NATO strategic concept.

Third, the thorniest issue may well be America's planned

missile-defense installations. Here too, there are different

views in the region, including among our publics which are

divided. Regardless of the military merits of this scheme and

what Washington eventually decides to do, the issue has

nevertheless also become--at least in some countries--a

symbol of America's credibility and commitment to the region.

How it is handled could have a significant impact on their

future transatlantic orientation. The small number of

missiles involved cannot be a threat to Russia's strategic

capabilities, and the Kremlin knows this. We should decide

the future of the program as allies and based on the

strategic plusses and minuses of the different technical and

political configurations. The Alliance should not allow the

issue to be determined by unfounded Russian opposition.

Abandoning the program entirely or involving Russia too

deeply in it without consulting Poland or the Czech Republic

can undermine the credibility of the United States across the

whole region.

Fourth, we know that NATO alone is not enough. We also want

and need more Europe and a better and more strategic U.S.-EU

relationship as well. Increasingly our foreign policies are

carried out through the European Union--and we support that.

We also want a common European foreign and defense policy

that is open to close cooperation with the United States. We

are the advocates of such a line in the EU. But we need the

United States to rethink its attitude toward the EU and

engage it much more seriously as a strategic partner. We need

to bring NATO and the EU closer together and make them work

in tandem. We need common NATO and EU strategies not only

toward Russia but on a range of other new strategic

challenges.

Fifth is energy security. The threat to energy supplies can

exert an immediate influence on our nations' political

sovereignty also as allies contributing to common decisions

in NATO. That is why it must also become a transatlantic

priority. Although most of the responsibility for energy

security lies within the realm of the EU, the United States

also has a role to play. Absent American support, the Baku-

Tbilisi-Ceyhan pipeline would never have been built. Energy

security must become an integral part of U.S.-European

strategic cooperation. Central and Eastern European countries

should lobby harder (and with more unity) inside Europe for

diversification of the energy mix, suppliers, and transit

routes, as well as for tough legal scrutiny of Russia's abuse

of its monopoly and cartel-like power inside the EU. But

American political support on this will play a crucial role.

Similarly, the United States can play an important role in

solidifying further its support for the Nabucco pipeline,

particularly in using its security relationship with the main

transit country, Turkey, as well as the North-South

interconnector of Central Europe and LNG terminals in our

region.

Sixth, we must not neglect the human factor. Our next

generations need to get to know each other, too. We have to

cherish and protect the multitude of educational,

professional, and other networks and friendships that

underpin our friendship and alliance. The U.S. visa regime

remains an obstacle in this regard. It is absurd that Poland

and Romania--arguably the two biggest and most pro-American

states in the CEE region, which are making substantial

contributions in Iraq and Afghanistan--have not yet been

brought into the visa waiver program. It is incomprehensible

that a critic like the French anti-globalization activist

Jose Bove does not require a visa for the United States but

former Solidarity activist and Nobel Peace prizewinner Lech

Walesa does. This issue will be resolved only if it is made a

political priority by the President of the United States.

The steps we made together since 1989 are not minor in

history. The common successes are the proper foundation for

the transatlantic renaissance we need today. This is why we

believe that we should also consider the creation of a Legacy

Fellowship for young leaders. Twenty years have passed since

the revolutions of 1989. That is a whole generation. We need

a new generation to renew the transatlantic partnership. A

new program should be launched to identify those young

leaders on both sides of the Atlantic who can carry forward

the transatlantic project we have spent the last two decades

building in Central and Eastern Europe.

In conclusion, the onset of a new Administration in the

United States has raised great hopes in our countries for a

transatlantic renewal. It is an opportunity we dare not miss.

We, the authors of this letter, know firsthand how important

the relationship with the United States has been. In the

1990s, a large part of getting Europe right was about getting

Central and Eastern Europe right. The engagement of the

United States was critical to locking in peace and stability

from the Baltics to the Black Sea. Today the goal must be to

keep Central and Eastern Europe right as a stable, activist,

and Atlanticist part of our broader community.

That is the key to our success in bringing about the

renaissance in the Alliance the Obama Administration has

committed itself to work for and which we support. That will

require both sides recommitting to and investing in this

relationship. But if we do it right, the pay off down the

road can be very real. By taking the right steps now, we can

put it on new and solid footing for the future.

Will the Senator yield for a question?

I know my colleague has given more time and effort to studying the sickness that is affecting our Congress with regard to how we spend money than anyone in this body, and he has taken a lot of heat for standing up and raising these issues. I salute him for it.

But the amendment that is before us, it seems to me, is absolutely typical of how out of step Congress is. This may be a swell amendment for whoever benefits from it, but the people who are paying for it are not aware that the money they have earned from the sweat of their brow is now going to somebody who got a better health care plan, a better retirement plan and higher pay than they get, and more job security than they get.

In my home county, the unemployment rate is over 20 percent. Then we have people with so much better jobs wanting more money. This is what, a $2 billion amendment? I would ask you, is this not sort of a pretty egregious example of the tendency we have to try to reward one group and ignore the cost that everybody else is going to have to pay?

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

Reserving the right to object.

Reserving the right to object, Mr. President.

I wonder, I know the bill managers have many challenges, but I wonder if they contemplate that I would have the opportunity to call up Sessions amendments Nos. 1657 and 1533 before we go too far in this process.

I am not delaying, of course. We want to see this bill move forward. But I do have two amendments I care about. Maybe I can talk to the chairman in a little bit. I thank him for his courtesy. I will not object.

The missile defense amendment is one that is a sense- of-the-Senate amendment that Senator Lieberman is offering now. That was not the two I referred to. I agree with Senator McCain that sense of the Senate definitely needs a vote. It is an important issue.

The other two amendments I have I hope also can be considered. I will be pleased to talk with the Senator and his staff about it.

That is correct.

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

Mr. President, I rise to make a few remarks in support of the Kyl amendment. This amendment relates to the possible follow-on agreement to the 1991 Strategic Arms Reduction Treaty, so-called START. The Joint Understanding issued at the recent Moscow summit suggests the United States and Russian Federation are well on their way toward completing a new agreement, perhaps even before the end of this year. Rather than wait until the agreement is signed and submitted to the Senate for the Senate's consent, this amendment provides an opportunity for the Senate to give its advice before the treaty's provisions are agreed to. It reflects this Senator's desire to see a follow-on treaty that does not weaken our nuclear deterrent or place in doubt our nuclear guarantee to our allies and partners who depend on it.

It also reflects a caveat that any future agreement should not limit U.S. missile defense capabilities or U.S. capabilities for long-range conventional strike. Finally, this amendment makes clear that any reductions in our nuclear stockpile should be supported by long-range plans to modernize our aging nuclear deterrent and supporting infrastructure. This is important. We have had testimony in the Armed Services Committee on a number of occasions from our top military commanders who deal with this issue. They say continued reductions of nuclear weapons must be accompanied by a modernization of the limited number we have left. When we do that, we can make them safer and far more difficult for anyone who were to nefariously obtain them to utilize and protect them and make them more reliable.

Most, if not all, would agree that it is important to ensure that the verification and monitoring provisions of the START Treaty of 1991 not be allowed to lapse come December 6.

While there are a number of ways to handle this, either by extending the current agreement or drafting a new agreement dealing specifically with these matters, the United States and Russia have chosen the more ambitious goal of a new treaty that would make further reductions in the current nuclear stockpiles which are today at the lowest levels since the Cold War. We have about 2,200 warheads today. We had 6,000 not too many years ago. We have reduced those numbers. I support that.

The rush to complete an agreement before START expires in December has led the United States to agree to provisions in the Joint Understanding that potentially may not be in our best interest. It is not a critical thing that we reach a firm agreement by the end of December. We should not allow the Russians to put us in a position where we are so desperate to reach an agreement by the end of the year that we would reach a bad agreement. At the very least, it can be said that these matters have not sufficiently been analyzed to know whether they are in our interest.

First, with respect to the central limits to be enshrined in a new agreement, the two sides agreed to warhead limits of between 1,500 and 1,675 warheads, and limits on the number of strategic nuclear delivery vehicles to somewhere between 500 and 1,100. That is quite a wide range. The final number is to be negotiated by the parties. The Senate has yet to see the analytical basis for the levels agreed to in the Joint Understanding which means we are not off to a good start in the advice and consent process.

Today the United States deploys approximately 2,200 operational nuclear warheads on some 900 delivery vehicles.

These are our ICBM missiles, our SLBMs, and bombers. Whether it is prudent to go below these numbers depends on some important considerations. To take that down to 500 would be a dramatic reduction of our delivery systems. Whether it is prudent to go below these numbers that we currently have depends on some important considerations, not the least of which is the impact on the size and shape of the U.S. nuclear TRIAD, the ICBMs, the submarine-launched missiles, and our bomber fleet; our ability to extend credible nuclear guarantees to our allies; and whether lower levels provide an incentive to other nuclear powers to build up their forces so they can be a peer competitor with the United States and Russia.

I will have more to say on this in the future. Suffice it to say that I have yet to hear a convincing strategic rationale that would justify going this low. Indeed, I believe the burden of proof will be on those who think it is necessary to continue to reduce U.S. nuclear force levels that are today but a fraction of what they used to be. My major concern, however, is language in the Joint Understanding which seems to suggest the two sides may establish limitations on U.S. missile defense and long-range conventional strategic strike capabilities. In other words, an agreement could well involve a limitation, either in part of the treaty or a corollary agreement, to limit our national missile defense capabilities. That is a dangerous and unwise linkage.

For example, the Joint Understanding states there will be a provision ``on the interrelationship of strategic offensive and strategic defensive arms.'' I find this troubling because we have made it clear to the Russians that our missile defense capabilities are not directed at, nor are they capable of being an effective defense against, massive Russian capabilities. We only have a plan to put in 44 missiles in the United States and 10 in Europe. That is a fraction of the capacity that the Russians have today. Instead we build missile defenses to address a threat to the United States and its allies posed by rogue nations such as North Korea and Iran. That is what 40 missiles in Alaska and California can do. That is what 10 in Europe could do. It can't defend against massive Russian delivery systems. It has no capability of doing that. They know it. So why do they object?

What do we mean, as we carry out this discussion, by the term ``strategic defensive arms''? How does one distinguish between a strategic and nonstrategic missile defense system? Is the United States SM-3 missile, which has some capability against long-range North Korean missiles, considered a strategic missile defense system? It is best not to get into negotiations that could eventually constrain our ability to build missile defenses against countries such as Iran and North Korea. To be sure, any such limitations would make a START follow-on agreement dead on arrival in the Senate. I don't believe the Senate would pass such an agreement.

The Joint Understanding also contains--between the Obama administration and Russia--a provision addressing the impact on strategic stability of strategic missiles in a nonnuclear configuration. This apparently is an attempt by Russia to constrain the ability of the United States to field long-range strike systems armed with conventional warheads, nonnuclear warheads.

Conventionally armed long-range strike systems, also known as ``prompt global strike,'' are consistent with a move by both countries to place less reliance on nuclear weapons for deterrence. Prompt global strike would allow the United States to launch a missile without a nuclear weapon that could take out a dangerous threat anywhere around the world in a very prompt fashion. We have debated that over the years in the Senate.

Finally, the amendment by Senator Kyl would send a strong message to the administration that a START follow-on agreement must be supported at the same time it is submitted to the Senate for ratification by a long-term program to modernize the remaining nuclear forces of the United States, including warheads, delivery systems, and infrastructure needed to support both. Such a modernization is called for by the Congressional Commission on the Strategic Posture of the United States and by the Secretary of Defense, Secretary Gates, who last October said:

There is absolutely no way we can maintain a credible

deterrent and reduce the number of weapons in our stockpile

without resorting to testing our stockpile or pursuing a

modernization program.

Our colleagues don't want us to test. They think this would be a bad example to Iran and North Korea. If we did that, somehow they might be more likely to want to test. I don't think it will have any impact on those rogue nations. The Secretary of Defense is saying that if we don't continue testing, we need to modernize the weapons system we have. If we continue to draw down the number, these 40, 50-year-old weapons need to be modernized. They need to be reliable. This Senator will condition his support for a START follow-on agreement upon a serious commitment by the administration to modernize our nuclear deterrent which remains necessary to protect the United States and our allies against threats to our vital interests.

I wish to note a similar version of this amendment was adopted unanimously by the House on their version of the national Defense authorization bill. I commend Senator Kyl for offering it and note the importance of sending a clear message to the administration and to our allies and to Russia regarding our views on the ongoing START follow-up negotiations.

I wish to say what is obvious to all of us who have been here a long time. Senator Kyl is a real patriot who has maintained a deep interest in these issues throughout his career. This is a well-thought-out, well-conceived amendment that is wise for our Senate to pass. I believe we will. I think if my colleagues will find the time to review it and think it through, they will be convinced this is a wise step for us to take at this time so we don't end up with misunderstanding later on when a treaty plops down in the Senate that has a lot of problems for a host of Senators.

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

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

The PRESIDING OFFICDER (Mr. Warner). Without objection, it is so ordered.

Mr. President, I am very concerned about legislation that has been added to the Defense bill, the

so-called Hate Crimes Act. Certainly, none of us has any sympathy whatsoever for people who commit crimes of any kind, particularly those who would attack somebody because of their race, ethnicity, sexual orientation, or any other reason. I wish to take a few moments to explain why this is important and why this legislation is not good and it ought not to be passed. Some of my remarks may appear to be technical, but they are very important, in my view, as a former Federal prosecutor for almost 15 years.

I don't think it was ever appropriate that we bring this legislation to the floor and stick it on this Defense bill without having a markup in the committee without the ability to discuss it and improve it.

For years legal commentators and jurists have expressed concern at the tendency of Congress, for the political cause of the moment, to persist in adding more and more offenses to the U.S. Criminal Code that were never Federal U.S. crimes before. This is being done at the same time that crime rates over the past decade or so have dropped and State and local police forces have dramatically improved their skills and technology. There are really fine police forces all over the country today. An extraordinary number of police officers have college degrees and many advanced degrees.

I think two questions should be asked initially. First, is this a crime that uniquely affects a Federal interest, and can it be addressed by an effective and enforceable statute? Second, have local police and sheriffs' offices failed to protect and prosecute this vital interest?

Most people do not understand that a majority of crimes--theft, rape, robbery, and assault--are not Federal crimes and are not subject to investigation by the FBI or any other Federal agency. They could not do so if they wanted to because they have no jurisdiction. They can only investigate Federal crimes. It has been this way since the founding of our country, and it fixes responsibility for law enforcement on local authorities where it should be.

Americans have always feared a massive Federal Government police force. It is something that we have not ever favored. This is not paranoia but a wise approach, and I do not think it should be changed.

Instead of administering justice without fear or favor, this legislation that has been placed on this bill creates a new system of justice for individuals because of their sexual orientation or gender identity, providing them with a special protection, while excluding vulnerable individuals, such as the elderly or police officers or soldiers, from such special protections. I don't think we can justify that.

The purpose of the DOD reauthorization bill is to make sure the men and women who protect our freedoms have the necessary resources to continue to do the fabulous job they have been doing. We should not deviate from this path by addressing matters wholly unrelated to the defense of our Nation.

A bill of such breadth and lack of clarity as this should be carefully reviewed with the opportunity for discussion and amendment in committee. Yet this legislation had no markup in any committee. In fact, no version of the bill has been marked up since 2001, and this version is quite different and more expansive than the 2001 bill.

The committee did hold a quickly thrown-together hearing on June 25 in which Attorney General Holder himself appeared. The Attorney General, however, failed to point to one single serious incident in the past 5 years, when I asked him that question, where the types of crimes that are referred to in the bill, to give special Federal protection to select individuals, were not being prosecuted by State and local governments.

Additionally, the Attorney General refused to say attacks on U.S. soldiers predicated on their membership in the military by, for example, a Muslim fundamentalist, could be considered a hate crime.

It is baffling to me, given previous opposition and serious concerns which have been raised about this legislation, that the act, instead of being constrained, is actually expanded in a vague and awkward way. It focuses on the perception of what someone might have been thinking when they committed the crime and includes categories which are undefined and exceedingly broad, such as gender-related characteristics and gender identity. From questions that have been raised, these categories do not have clear meaning. During the course of debate on hate crimes legislation--a debate that started in 2001--amendments have been offered to also protect our military men and women, where it is unquestioned they have been targeted. Those amendments were rejected.

Mr. President, I will briefly outline my opposition to the legislation in the following ways:

The hate crimes amendment is unwarranted, possibly unconstitutional-- certainly, I believe it is unconstitutional in certain parts--and it violates the basic principle of equal justice under the law. The hate crimes amendment to this bill has been said to cheapen the civil rights movement.

When Congress passed the original civil rights statute in 1968, it criminalized violent and discriminatory actions directed at individuals because of race, color, religion, or national origin. There was, sadly, quite a substantial body of evidence that crimes were being committed against minorities and they were not being prosecuted. Section 245 that was then passed was never envisioned by Congress to be a hate crimes statute but one, rather, that would ensure access by minorities to specific activities legitimate to their freedom, such as enrolling in public schools, enjoying the benefit of programs administered by the State, or attending court as a juror.

In 1968, care was taken to ensure that the underlying statute was carefully crafted and narrowly tailored to address the problem of access to ensure that criminal activity fell within the confines of the constitutional requirement that there be a Federal nexus with interstate commerce. The statute enumerates six instances in which a crime could be charged. That statute says this:

Whoever, whether or not acting under the color of law, by

force or threat of force willfully injures, intimidates or

interferes with, or attempts to injure, intimidate or

interfere with any person because of his race, color,

religion or national origin and because he is or has been. .

. .

And then it lists specific areas that would encompass a criminal offense.

(a) enrolling in or attending any public school or public

college.

So if anyone who was attempting to attend a public school or college was interfered with or intimidated because of their race, color, religion or national origin, that would be the offense.

(b) participating in or enjoying any benefit, service,

privilege, program, facility or activity provided or

administered by any State or subdivision thereof.

In other words, you can go to the city hall, you can go to the health department, and you cannot be discriminated against because of your race or background.

Unfortunately, I have to say there were areas of the country-- particularly in my area of the South--where that was not so. People were being unfairly treated. In fact, in some other areas of the country also. I believe great care was taken with that act because, as I said, there was strong evidence to suggest that a Federal expansion of criminal law would be appropriate to deal with it.

So the history of civil rights violations caused and fully justified Congress's passage of this statute. There was direct evidence, for example, that African Americans were being denied the right to vote or intimidated at voting precincts without State and local law enforcement protecting them. There was much evidence, sadly, that other rights of African Americans were not being protected.

But that is not the case with this amendment, and I will talk about that in a minute. Gays and lesbians have not been denied basic access to things such as health or schooling or to the ballot box. They openly are able to advocate their positions today, which I think is certainly healthy, and have no difficulty in approaching government officials at whatever level.

When Eric Holder testified a few weeks ago before the Judiciary Committee, I asked him point-blank for direct evidence that hate crimes against individuals over the past 5 years, because of their sexual orientation or

otherwise, were not being prosecuted by local authorities. Instead of answering the question, he referred me to four cases in his written testimony which he had delivered to the committee. Let me make the number clear as strong evidence that these cases are being prosecuted.

The Attorney General could not come up with 4,000 cases or 400 or 40 cases. He only named four cases in 5 years. So we took a look at those four cases he cited in his testimony, and this is what we found.

In one case, Joseph and Georgia Silva assaulted an Indian-American couple on the beach. Although there was evidence that racial and ethnic slurs were used during the altercation, a California El Dorado County judge ruled that prosecutors failed to produce sufficient evidence that the alleged assault was motivated by racial prejudice. The prosecutor had pursued a hate crimes conviction, including charging Silva with a felony assault, punishable by up to 3 years in prison. The evidence, according to the judge, was that racial slurs were used in the heat of anger. There was no evidence the attack was initiated because of ethnicity.

Both Joseph and Georgia Silva were convicted of assault, the basic crime that they committed, and Joseph Silva was sentenced to 6 months in prison and 3 months probation, while Georgia was sentenced to 1 year in prison.

So the question is, was there an important Federal right left unaddressed that needed to be vindicated by charging this couple again for the crime arising from that assault? In other words, that is what this bill does. It says if we are unhappy with the result in State court under a select group of crimes, the Federal Government can try the case again.

You might say, well, there is a double jeopardy clause in the Constitution; you can't be tried twice for the same crime. Good; if you asked that question, you get an A in constitutional law. However, there is an answer. It has long been established that the States are sovereign and the Federal Government is sovereign. So an individual can be tried by two separate sovereigns without implicating the double jeopardy clause of the Constitution. However, we have always understood that ought not to be done lightly. It ought not be done without a real justification because it violates the spirit of the double jeopardy clause of the Constitution.

Attorney General Holder also cited a 2003 case in Holtsville, NY. In that case, three White men, while using racial slurs, assaulted a group of Latino teenagers as they entered a Chili's restaurant. One of the three defendants entered a guilty plea for his involvement in the assault and was sentenced to 15 months in prison. The other two defendants proceeded to trial and were acquitted because the jury apparently concluded there was insufficient evidence to prove beyond a reasonable doubt that the offense that occurred was to deny the victims access to the restaurant. So they had a trial, and one was convicted and two were not.

The Attorney General cited a South Carolina case where a gay man was assaulted after leaving a bar. During the altercation, he fell and he suffered a fatal strike to the head from the concrete. Stephen Miller was convicted of involuntary manslaughter and sentenced to 5 years in prison.

Finally, the Attorney General cited a case from here in the District of Columbia where a transgender prostitute was murdered. Apparently, after Derrick Lewis discovered that the prostitute he had picked up in his automobile was not female, and the prostitute refused to get out of his car, an altercation of some kind occurred--an argument--and he had a gun and shot and killed this transgender individual. He eventually pled guilty, gave a full statement of what happened, and was sentenced to 10 years in prison. The evidence showed they had begun fighting and that is when he pulled the gun and shot him. He said the individual would not get out of the car.

Well, those are not insignificant crimes, but I can just advise my colleagues, if we just pause one moment and think, we know that at this very moment thousands, maybe 10,000 or more trials are ongoing in State and local courts all over America, and they do not always end as people would like them to end. What this bill does basically is it provides an opportunity for the Federal Government to pick and choose certain crimes they want to prosecute again to get the kind of justice they think might be likely. That is a broad power that we give to the Attorney General and a broad statute I don't believe is compelled by the facts that are happening in America today.

When my staff followed up with the Office of the Attorney General to see why they listed just these cases, the response wasn't that State and local law enforcement were not doing their jobs but that the Attorney General believed the cases were under prosecuted. Citing four cases over 5 years as being underprosecuted is not the kind of evidence needed to justify the passage of such an expansive new piece of legislation that injects Federal prosecutors in areas of crime not heretofore occurring.

After the Judiciary hearing, both Senator Coburn and I sent followup questions to the Attorney General to provide him an additional opportunity to demonstrate that the bill was necessary because of under prosecution, as he had testified. Senator Coburn asked this question:

Precisely how many hate crimes is the Justice Department

aware of that have gone unprosecuted at the State and local

level?

This is the answer we got from the U.S. Attorney General:

The Department believes that our partners at all levels of

law enforcement share our commitment to effective hate crimes

enforcement. The Department does not have access to precise

statistics of hate crimes that have gone unprosecuted at the

State and local level, and we are unaware of any source for

such comprehensive information of unprosecuted offenses

generally. Federal jurisdiction over the violent bias-

motivated offenses covered under S. 909 is needed as a

backstop for State and local law enforcement, to ensure that

justice is done in every case.

So he is suggesting that, in a select group of cases that are on the front burner today, the Attorney General needs this legislation--S. 909, which has now been attached to the Defense bill--as a backstop for State and local law enforcement to ensure that justice is done in every case.

Well, there are many prosecutorial and jury decisions that are made in State courts every day with which one could disagree. The question is whether the Federal Government will be empowered to ensure justice is done in every case.

I just want to share the reality of the world with my friends here, that anyone, I guess, can conclude that a case didn't end justly for them. One distinguished jurist is famously quoted as saying, ``To speak of justice is the equivalent of pounding the table. It just adds an element of emotion to the discussion.'' But whatever we mean by that word, it basically means the Attorney General gets to decide whatever he wants to do. I am not sure this is good legislation. I think legislation ought to be crisp and clear and set forth criteria by which a prosecution occurs or does not occur, leaving not so much broad discretion among the prosecutorial authorities.

I submitted, after Senator Coburn--or at the same time, really--a similar question because I believed he had not been responsive to my question, and I asked this about our colleague, referring to Senator Hatch--of course a former chairman of the Judiciary Committee and who has worked on this issue for a number of years--and my question is this:

Senator Hatch in the past has offered a complete substitute

to similar legislation, which would require that a study be

conducted to prove that there is an actual problem with hate

crimes not being prosecuted. Do not give me a general

response that there are some problems out there. I would like

you to provide the Committee with an exact and precise number

of hate crimes the Justice Department is aware of which have

gone unprosecuted at the State and local level. Please detail

every example you or anyone in the Department of Justice is

aware of where no prosecutorial effort took place.

This was the answer we got:

The Department is unable to provide an exact number of

cases in which State, local or tribal jurisdictions have

failed to prosecute hate crimes because we are not aware of

any such compilation of data.

Senator Hatch has been offering this amendment for a study for a decade.

The Attorney General goes on to say:

When the Department receives complaints it clearly lacks

jurisdiction to prosecute, these matters generally are never

opened as investigations. . . .

Let me just say, if this legislation is passed it will have one dramatic, undiscussed impact. Federal law enforcement agents--and there are not many. You may have a city with 300 police officers in it and 10 FBI agents, another hundred sheriffs' deputies, another number of State officers. Now huge numbers of crimes will be coming across the desk of the FBI, which has terrorism, white-collar crime, bank fraud which they need to be working on today, violent crimes and drug smuggling. Now they are going to have to review hundreds of complaints about cases they had not heretofore had jurisdiction of and did not have to review. I just raise that point as an aside.

Based on the Attorney General's response, I conclude that the bottom line is there is nowhere near the real evidence needed to justify this legislation. No one in this body has produced the evidence, and the Attorney General of the United States, who is promoting the bill, has not produced any. Attorney General Holder's response, instead of demonstrating the need for hate crimes legislation as written, provides verification that it is not necessary, and it raises a question of whether this is driven by political interests at this time. It is easy to complain that anybody who opposes a hate crimes bill favors hate. That is not a fair charge. I think most of our colleagues fully understand that. But politically that is the suggestion some have made when this legislation has been objected to by people with very valid concerns.

As a matter of fact, one of the studies heavily relied on by the Attorney General in support of this bill is a 2008 report published by the National Coalition of Anti-Violence Programs, which is composed primarily of lesbian, gay, bisexual, and transgender groups. They have every right to do those studies and present them, but it is a coalition clearly with a vested interest in the legislation, and it should be examined carefully. The Attorney General had to rely on these types of reports because crime statistics do not support the notion that the incidence of hate crimes has increased. Even though we are doing a better job of reporting those today, still over the past 10 years the number is down, down slightly, even though population is up in our country.

Furthermore, in a rushed attempt to provide answers to the committee prior to this amendment being filed, the Department seemed to put little thought into their responses to our questions. As a matter of fact, it appears the Attorney General didn't think the issue important enough to answer them himself. He let his staff people answer, when he was the one who appeared before the committee and we were following up on his personal testimony.

A number of arguments and statements have been made, including those by the Attorney General, that there are quite a few of these incidents, tens of thousands of these incidents over the last number of years. But overwhelmingly these despicable incidents are of vandalism, many by juveniles. Let me make clear that even those incidents are significant and deserve prosecution and investigation and, where appropriate, stiff punishment. But let's look at the views of the members of the U.S. Commission on Civil Rights, our own U.S. Civil Rights Commission, who have examined this legislation carefully. Six of its eight members signed a strong letter to the President and to the Judiciary Committee to oppose hate crimes legislation. Did I mean to say the Civil Rights Commission wrote in favor it? No. But to oppose it. Their letter, dated June 16--just last month--addressed to the Members of the Senate and the President, said this:

We believe that the MSHCPA [Matthew Shepard Hate Crimes

Prevention Act] will do little good and a great deal of harm.

Its most important effect will be to allow Federal

authorities to reprosecute a broad category of defendants who

have already been acquitted by State juries, as in the Rodney

King and Crown Heights cases more than a decade ago. Due to

the exception for prosecution by ``dual sovereigns,'' [that

is the two sovereign entities] such double prosecutions

technically are not violations of the double jeopardy clause

of the U.S. Constitution. But they are very much a violation

of the spirit that drove the Framers of the Bill of Rights,

who never dreamed that Federal criminal jurisdiction would be

expanded to the point where an astonishing portion of crimes

are now both State and Federal offenses. We regard the broad

federalization of crime as a menace to civil liberties. There

is no better place to draw the line on that process than with

a bill that purports to protect civil rights.

They go on to say:

While the title of MSHCPA 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.

I am quoting from the Civil Rights Commission letter.

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 [these victims] are chosen

because of their gender or disability.

The letter goes on to state their belief that every rape in America would now be declared a crime under this bill because it is an action taken against someone because of their gender.

Professor Gail Heriot, a member of the U.S. Commission on Civil Rights, testified at our June 25 hearing. She made clear that all rapes would be covered under the bill and that, indeed, this was intentional. She said:

This wasn't just sloppy draftsmanship. The language was

chosen deliberately. Officials understandably wanted

something susceptible to broad construction, in part because

it makes prosecutions easier. As a staff member of the Senate

Judiciary Committee back in 1998, I had conversations with

the Department of Justice representatives. They repeatedly

refused to disclaim the view that all rape would be covered,

and resisted efforts to correct any ambiguity by redrafting

the language. They wanted a bill with broad sweep. The last

thing they wanted was to limit the scope of the statute's

reach by requiring that the defendant be motivated by ill

will toward the victim's group.

I think that is a serious charge made by a member of the Civil Rights Commission about the purpose of the Department of Justice in supporting this act.

I would note, it is an inevitable delight of prosecutors to have more and more power and more and more ability to prosecute criminals. That is what they do. They are wonderful people. I never enjoyed anything more than being a prosecutor, wearing a white hat every day to work and trying to vindicate decent people from criminal acts. But that is just a tendency of the prosecutorial mindset that we ought not to forget.

The truth is, during the recent hate crimes hearing, no one who testified in favor of the bill could point to a single incident where, I think, a valid hate crime was not pursued or prosecuted by State and local law enforcement officers.

In the latest statistics that are available, of the 2006 hate crimes reported in 2007, only nine were classified as murder or nonnegligent manslaughter. That is certainly nine too many. I think every one should be prosecuted. But no complaints have been raised that any of these were not vigorously or fairly prosecuted. Indeed, two-thirds of the offenses involved property defacement, such as graffiti and name- calling. Missing from the analysis is any evidence that the crimes are not being prosecuted at the State and local level. Indeed, 45 of the 50 States and the District of Columbia already have and enforce hate crimes laws. Although the language is broad and some could criticize it, these States have passed these bills, and they are able to enforce them.

Statistics show that these hate crimes, even with better reporting, have decreased slightly over the years. Forty-four States have stiffer penalties for violence related to race, religion, or ethnicity, and 31 States have tougher penalties on violence related to sexual orientation.

The question arises, do we have a basis for this massive and historic change in Federal enforcement of what have been State crimes?

Perhaps Mr. Andrew Sullivan--an openly gay man who has pioneered the effort to have gays in the military and is a well known and an able writer, provides the answer. Mr. Sullivan had this to say about the legislation.

The real reason for hate crime laws is not the defense of

human beings from crimes. There are already laws against

that--and Matthew Shepard's murderers were successfully

prosecuted to the fullest extent of the law in a State that

had no hate crime law at the time.

The real reason for the invention of hate crimes was a hard

left critique of conventional liberal justice and the

emergence of special interest groups which need boutique

legislation to raise funds for their large staffs and

luxurious buildings. Just imagine how many direct mail pieces

have gone out explaining that without more money, more gay

human beings will be crucified on fences. It is very, very

powerful as a money-making tool, which may explain why the

largely symbolic Federal bill still has not passed (if it

passes, however, I'll keep a close eye on whether it is ever

used.)

This is a gay man expressing his opinion. No doubt he takes these issues very seriously, and symbolism is important in our political world, but we need to be careful that statutes that become a permanent part of our criminal code are supported by evidence and principle.

I do not think our focus here is to deal with symbolic legislation that is broad and can expand Federal criminal jurisdiction beyond its historic role and where the facts do not support the need. In other words, more narrowly tailored legislation consistent with a constitutional right could very well be something this Congress would want to pass. To pass legislation so extremely broad again could give Federal jurisdiction for the first time in history to every rape that occurs in America. It ought to be looked at with great care and ought not to be stuck onto a defense bill and moved forward, in my opinion.

The Constitution endows Congress with limited and enumerated powers. There is no general police power in the Federal Government. So at this point, I wish to raise issues with the constitutionality of the hate crimes provision.

Congress's power is limited to what it can regulate under

the Commerce Clause. The proposed legislation is based upon

the idea that a discrete crime in a local community may have

an impact on interstate commerce. This is the same theory

that was rejected in both U.S. vs. Lopez and U.S. vs.

Morrison, where the Supreme Court essentially ruled that

intrastate violent conduct does not impact commerce normally.

Nat Hentoff, a well-respected noted civil rights and civil libertarian attorney and writer recently wrote about some constitutional concerns he has with the legislation. This is what he said:

In the definitive constitutional analysis of James B.

Jacobs and researcher Kimberly Potter, it is documented in

``Hate Crimes: Criminal Law and Identity Politics'' that in

``Grimm v. Churchill the arresting officer was permitted to

testify that the defendant had a history of making racial

remarks. Similarly, in People v. Lampkin, the prosecution

presented as evidence racist statements the defendant had

uttered six years before the crime for which he was on

trial,'' as specifically relating to the offense.

As for the 14th Amendment's essential requirement that no

person be denied ``the equal protection of the laws,'' there

is carved above the entrance to the Supreme Court the words

``Equal Justice Under Law.''

This legislation, certain to be passed by the Senate, now

it seems will come to the Supreme Court.

And I am quoting Mr. Nat Hentoff, the well-known and respected civil libertarian civil rights attorney. He says this:

When it comes before the Supreme Court, I hope the Justices

will look up at the carving as they go into the building.

They should also remember that the Fifth Amendment makes

clear: ``nor shall any person be subject for the same offence

to be twice put in jeopardy.''

But the House hate crime bill allows defendants found

innocent of that offense in a state court to be tried again

in federal court because of insufficiently diligent

prosecutors; or, as Attorney General Holder says, when state

prosecutors claim lack of evidence. It must be tried again in

federal court. Imagine Holder as the state prosecutor in the

long early stages of a Duke University lacrosse rape case.

What also appalls me, as the new federal bill races toward

a presidential signature, is that for many years, and now,

the American Civil Liberties Union approves ``hate crimes''

prosecutions. I have long depended on the ACLU's staff of

constitutional warriors to act persistently against

government abuses of our founding documents. And these

attorneys and analysts have been especially valuable in

opposing the results of executive branch lunges against the

separation of powers in the Bush-Cheney years, and still

under Obama.

Then he says this:

Is there no non-politically correct ACLU lawyer or other

staff worker or anyone in the ACLU affiliates around the

country or any dues-paying member outraged enough to demand

of the ACLU's ruling circle to at last disavow this

corruption of the Constitution?

That is Mr. Hentoff's view of it.

So this hate crimes amendment is a substantial overreach by Congress, I do believe. It is not carefully crafted or narrowly tailored. Unlike the historic civil rights statute, it seeks to federalize the violent, noneconomic conduct that is local in nature and has little or no Federal nexus.

The Supreme Court has held that violent conduct that does not target economic activity is among the types of crimes that have the least connection to Congress's commerce power. However, this is precisely the sort of violent, noneconomic conduct that this amendment would federalize.

If this approach were permissible, it would put Congress on a path to rely on the Commerce Clause and legislate any criminal law it wants. When it comes to criminal law, Congress would no longer be a body of limited and enumerated powers but would have plenary power to criminalize any and all conduct that is already criminalized by the States, a clear violation of our historical policy of not taking over State and local law enforcement.

There are still a lot of complaints over the drug laws aggressively prosecuted when I was a Federal prosecutor, and many think that was an overreach. When drugs come in, the vast majority from outside the country, they move as interstate commerce, and the courts have held that up.

But there is still intellectual criticism and concern about it. But in this case, you do not have the kind of dramatic nexus, and you also lack the evidence to suggest those cases are not being effectively prosecuted. So the sponsors have also tried to ease constitutional concerns by citing the 13th, 14th and 15th amendments.

The 13th amendment provides Congress with the limited authority to abolish ``all badges and incidents of slavery in the United States.'' I hope my colleagues are not seriously attempting to argue that assaulting someone because of their religious views or gender is tantamount to slavery.

The 14th and 15th amendments apply only to State actions, and since we have already established that States are vigorously prosecuting these actions and not ignoring them, I do not think this is a valid approach.

Finally, I would note that the legislation raises questions concerning the constitutional imperative that there be ``equal justice under law.'' Is there a legitimate, justifiable reason to punish one rape differently than another rape simply because someone decides the first rape was committed out of hate or actually because of the gender of the victim? I think the victims would say the same thing, the criminal should be punished to the fullest extent of the law.

This legislation would add a different element to certain crimes, and I know, as a former prosecutor, make it more difficult and more expensive to obtain a conviction, especially when you have to prove an individual's thought process as an underlying element to the offense.

This bill at bottom tries to distinguish between assaults by declaring if someone assaults and kills his girlfriend because she broke up with him it is not a Federal offense, but if he kills her because she claims she wanted to explore her sexual orientation and he became upset and killed her, that would be a Federal offense.

Senator Hatch offered a complete substitute on Thursday night. It was rejected. His proposal would require that a study be conducted so actual evidence can be obtained to see if there is a real serious problem with States not prosecuting these matters.

For some reason, even though Senator Hatch has been trying to get it passed for quite a number of years, the study has never been conducted, and all proposals for such a study have been rejected. I fear it is because perhaps Mr. Sullivan got it right. It is not so much about the failure of States to prosecute these crimes but about an underlying idea to pass a symbolic piece of legislation.

There is no good reason to pass such a broad piece of legislation. To pass it would be unwise. No one believes that individuals should be assaulted because of their beliefs, their gender or their sexual orientation. That type of behavior is unacceptable and should be prosecuted.

It has been prosecuted. I am sure State and local law enforcement officers will continue to do so. I believe

that if my colleagues would study the legislation and think about what they are doing, they would see that this is more unwise and the objections they have heard have far more weight than they had thought initially.

It seems like a good idea. Who would want to be against a crime that says it wants to punish hate? But there are serious matters and constitutional issues, as I noted from the Civil Rights Commission, from the civil rights attorneys such as Mr. Nat Hentoff.

I think, in truth, the Attorney General should have been more balanced in his testimony before the Judiciary Committee. He came pushing this legislation without listening or expressing any concern. But I do think he should have pointed out that it represents one of the largest expansions of Federal law enforcement in history. He should be the first to point out and express that concern. He should not allow politics to drive law in America.

I know most of my colleagues think this is the right thing to do. I wish I had been able to participate more in the debate before it was a done deal the other night. I was involved at the same time, of course, with the confirmation process.

Hopefully, we can watch this legislation come with some ideas that curtail its potential for abuse and make it better. But, in reality, I want my colleagues to know it is time for us in Congress to step back and question carefully any proposal to create new or further expand federal criminal jurisdiction that would encroach upon the historic powers of our State and local law enforcement to enforce the law in their jurisdiction.

I yield the floor.

Did we get an agreement on the time before we vote?

Madam President, I thank Senator Levin. It is always a pleasure to work with him and others who work with us to make sure that when we prosecute a hate crime that results in death, that it is possible to have the death penalty in Federal court. I think that is appropriate in those instances where it may be appropriate for the Federal Government to proceed with such a death penalty prosecution. It would be odd that it would not be possible and a crime could have resulted--easily in multiple murders--by one of the most vicious criminals one can imagine.

The next amendment I call the soldiers amendment. It is distinct from the hate crimes legislation we have been discussing. It expands the protections that the United States of America provides to its soldiers. Remember, we provide protections now to Federal officers, postmen--any Federal officer of the United States is protected, and so are soldiers in certain circumstances.

This amendment would create a new Federal crime which puts members of the U.S. military on equal footing with other protected classes. It makes it a crime to knowingly assault, batter a serviceman or immediate family member or knowingly destroy or injure

their property ``on account of the military service or status of that individual as a United States serviceman . . . ''

It is not a total expansion of Federal law, but it says if you are attacked or assaulted, battered, or your family members are simply because you are a member of the U.S. military serving your country, then the Federal Government would obviously have the ability to prosecute because it is a high duty, and no higher responsibility, for the U.S. Government to protect its soldiers from assaults arising from their service to our country.

Madam President, we have had problems with these assaults on our military officers. This will be a good step in correcting that situation.

I thank the Chair for the opportunity to speak. I hope my colleagues will support the amendment.

Madam President, I just want to say how much I appreciate the Senator's efforts. It is consistent with the retired law enforcement officers bill we passed, as I recall, not long ago that allowed them to carry their weapons in other States under certain circumstances. When people are traveling, they many times feel more vulnerable and they feel a greater need to protect themselves.

I think it is a sound and reasonable approach--limited but important--and I thank Senator Thune for offering that amendment.

Madam President, we have been busy in the Judiciary Committee with the Sotomayor hearing. I have not been able to participate in the debate over the hate crimes legislation. I want to follow up a little bit more on what I said earlier today. I have an obligation to assert a principle that I think is important in Federal criminal law.

I was a Federal prosecutor for 15 years and was very familiar with the jurisdiction issues that are involved in Federal criminal law. We need to do this right. I do not think we have done that right.

The bill has basically been made a part of this Defense bill already, so in one sense I guess the die is cast, but I will share a few thoughts.

To repeat briefly, I will quote from the letter from six, I believe, of the eight members of the U.S. Commission on Civil Rights that was received June 16, was sent to the President and members of the Judiciary Committee. They said:

We believe the MSHCPA--

That is the so-called hate crimes legislation, this is their opinion, six of the eight members--

will do little good and a great deal of harm. Provisions in

the bill ``are very much a violation of the spirit that drove

the framers of the Bill of Rights, who never dreamed that

federal criminal jurisdiction would be expanded to the point

where an astonishing proportion of crimes are now both state

and federal offenses. We regard the broad federalization of

crime as a menace to civil liberties. There is no better

place to draw the line on that process than with a bill that

purports to protect civil rights.

In other words, this is an official commission of the U.S. Government, appointed by Presidents, and that is what they sent to us.

Gail Heriot, who is a member of the commission, testified at our judiciary hearing a couple of weeks ago. She testified that:

The proposed hate crimes legislation, which is being touted

as a response to murders, should not have been treated as a

mere photo opportunity. It is real legislation with real

world consequences--and not all of them are good. A close

examination of its consequences, especially its consequences

for federalism and double jeopardy protections, is therefore

in order.

Given the many civil liberties issues that would raise,

including the routine potential for double jeopardy

prosecutions, this is a step that members of the Senate

should think twice before they take.

Bob Knight, a senior fellow--I guess I am going to show some members, liberal lawyers and conservative advocates, also sharing concern over this legislation. I hope my colleagues have not treated these concerns too lightly.

It is hard to vote against legislation that purports to fight hate. You do not want to be somebody defending hate crimes. I certainly do not. Neither do these good people who have expressed their concern.

Bob Knight, a senior fellow at the American Civil Rights Union, said this:

The proposed law, whatever its sponsors' good intentions,

is a grave threat to the constitutional guarantee of equal

protection under the law. America's legal heritage of judging

actions rather than thoughts or beliefs, and it will

politicize law enforcement by making some crime victims'

cases more important than others.

Beyond the obvious unfairness of excluding some groups from

enhanced protections, such as the elderly, homeless, veterans

and children--

They are not given enhanced protections of the hate crimes bill--

the proposed law advances an underlying ambitious agenda to

punish individuals and groups that hold traditional values.

This law:

. . . lays the groundwork for the concept of ``thought

crime,'' in which someone's views or beliefs are

criminalized. Violent acts are already illegal and punished

under criminal law. This law adds penalties based on thought.

In order to prove that the defendant holds particular beliefs

that motivated a criminal act, his or her speech, writing,

reading materials and organizational memberships would become

key evidence.

Brian Walsh, a senior fellow at the conservative Heritage Foundation, says this:

The criminal justice system is in great need of principled

reform . . . this reform should not be driven by some

partisan politics. Unfortunately, the HCPA fails to measure

up to this standard and would substantially undermine

constitutional federalism and the high regard in which the

American public should hold Federal criminal law.

The three main problems with this amendment are that:

. . . the Act's new ``hate crimes'' offenses are far broader

and more amorphous than any properly defined criminal offense

should be--

I agree with that, parenthetically. He goes on to say:

--and they thus invite prosecutorial abuse, politically

motivated prosecutions, and related injustices. The Act's

``hate crimes'' offenses violate constitutional federalism by

asserting Federal law-enforcement power to police truly local

conduct over which the Constitution has reserved sole

authority to the 50 states. The Act's ``hate crimes''

offenses would be counterproductive, for nearly all States

have--tough ``hate crimes'' laws

and the violent conduct underlying the Act's ``hate crimes''

offenses has always been criminalized in all 50 states.

Nat Hentoff is a famous civil rights and libertarian attorney, a writer well known in the country as being a passionate advocate for civil liberties from an objective, I would say, point of view. He has respect from both conservatives and liberals, but I guess his background has mostly been on a more liberal approach to law.

He starts off saying:

Why is the press remaining mostly silent about the so-

called ``hate crimes law'' that passed the House on April 29?

The Local Law Enforcement Hate Crime Prevention Act passed in

a 249-175 vote--17 Republicans joined with 231 Democrats.

These Democrats should have been tested on their knowledge of

the First Amendment, equal protection of the laws . . . and

the prohibition of double jeopardy. . . . No American can be

prosecuted twice for the same crime or offense. If they had

been, they would have known that this proposal, now headed

for a Senate vote-- violates all these constitutional

provisions.

This bill would make it a federal crime to willfully cause

bodily injury--or try to--because of the victim's actual or

perceived ``race, color, religion, national origin, gender,

sexual orientation, gender identity or disability''--as

explained on the White House Web Site, signaling the

president's approval. A defendant convicted on these grounds

would be charged with a ``hate crime'' in addition to the

original crime and would get extra prison time.

The extra punishment applies only to these ``protected

classes.''

He quotes a Denver, CO criminal defense lawyer:

As Denver criminal defense lawyer Robert J. Corry Jr. asked

. . . ``Isn't every criminal act that harms a person a hate

crime?'' Then, regarding a Colorado ``hate crime'' law, one

of 45 such state laws, Corry wrote:

``When a Colorado gang engaged in an initiation ritual

specifically seeking out a `white woman' to rape, the Boulder

prosecutor declined to pursue ``hate crime'' charges. She was

not enough of one of its protected classes.''

Corry adds that the State ``hate crime'' law--like the

newly expanded House of Representatives Federal bill--``does

not apply equally,'' as the 14th amendment requires,

essentially instead:

``Criminalizing only politically incorrect thoughts

directed against politically incorrect victim categories.''

Hentoff concluded:

Whether you're Republican or Democrat, think hard about

what Corry adds:

``A government powerful enough to pick and choose which

thoughts to prosecute is a government too powerful.''

David Rittgers of the CATO Institute, a libertarian group, said this:

The Federal hate crimes being considered in the Senate

undermines the rule of law and shows casual disregard, if not

outright hostility, for the principles of limited government

and equality under the law. The bill Federalizes violent acts

against victims by reason of their actual or perceived race,

color, religion, national origin, gender, sexual orientation,

gender identity or disability.

Never mind that these acts are already prosecuted by the

states--45 of which have their own hate crime laws--and that

violent crimes of this nature are universally perceived as an

affront to justice. Matthew Shepard, a gay man brutally

killed in Wyoming, has provided one of the rallying cries for

passage of this legislation. His killers both received two

consecutive life sentences from a state court. James Byrd,

Jr., the African-American man dragged to death behind a truck

in Texas, is cited as another reason to pass the law. His

killers received death sentences or life imprisonment.

The federal government would also be authorized to

prosecute whenever ``the verdict or sentence obtained

pursuant to State charges left demonstratively unvindicated

the Federal interest in eradicating bias-related violence.''

While this doesn't violate the letter of the Supreme Court's

double jeopardy jurisprudence--the federal and state

governments are considered separate sovereigns--it certainly

violates its spirit.

The National Religious Broadcasters write they are opposed to the concept as well as the current legislative permutations of the so- called ``hate crimes.'' This legislation takes any conduct that is viewed as a threat to homosexuals or bisexuals or a threat to persons who want to immunize their religion from public debate and turns that threat or perceived threat into a species of criminal felony. As a consequence, this legislation will inevitably stifle the free exercise of religion and freedom of speech, and brings with it the very real likelihood of abusive prosecutions. Federal ``hate crimes'' laws also ignore the fact that the underlying core offense, the causing of bodily injury to another, is already criminalized in all 50 states.

The Research Council says this:

Hate crimes laws force the courts to guess the thoughts and

beliefs which lie behind a crime, instead of looking at the

crime itself.

The Family Research Council believes that all crimes should be prosecuted to the fullest extent of the law, and that every violent crime has some form of hate behind it. All around the country, crimes are being prosecuted in the State justice systems. American justice is being done. There is simply no need for a Federal hate crimes law.

Violent attacks upon people or property are already illegal, regardless of the motive behind them. With hate crime laws, however, people are essentially given one penalty for the action they engage in and an additional penalty for the particular and highly selective attitudes and thoughts that motivated these actions.

Motive-based analysis and intent-based analysis are not the same thing. For example, with the crime of manslaughter, intent-based analysis looks at whether the perpetrator intended the result. Hate crime legislation takes into account what the offender thinks, feels, or believes about the victim regardless of whether the perpetrator intended the result. This is why hate crimes may be referred to as ``thought crimes.''

The Traditional Values Coalition says:

The so-called hate crimes bill will be used to lay the

legal foundation and framework to investigate and prosecute

and persecute pastors, business owners, Bible teachers,

Sunday School teachers, youth leaders, Christian counselors,

religious broadcasters, and anyone else whose actions are

based upon and reflect the truths found in the Bible, which

have been protected by the first amendment.

That is not accurate? Well, they are concerned about that. And they object to the legislation.

The Concerned Women for America note that:

The legislation would violate genuine constitutional rights

in an attempt to address a nonissue, create a caste system of

victims, violate the spirit of the Double Jeopardy Clause of

the Constitution, and unintentionally extend privileges to

individuals who engage in illegal sexual acts even against

children.

I would share those thoughts and say that this is why this legislation has been controversial. The predicate for this legislation is the interstate commerce tag that is very weak. The Supreme Court has already found several Federal statues do not have sufficient interstate nexus to justify prosecuting a crime in Federal court.

I would say if a few people walk out in the pasture and one finds a rock and murders a person, as a Federal prosecutor for 15 years I will tell you, there is no jurisdiction federally to try and prosecute that case. It is a criminal case in the State court only. And to make it a Federal case, you have to have some sort of peg to hang your hat on, so to speak.

In that case, I do not think there is any. But if you are on a railroad train and you are traveling and you are in interstate commerce, you murder someone, that can be a Federal crime. If you steal from an interstate shipment, that can be a Federal crime. If you murder a postman, that is a Federal crime--or a Federal civil servant, and so forth. Those are Federal crimes. But normal murder, rape, robbery, theft, that occur by the tens of thousands every day all over America are not Federal crimes. They are not prosecutable in Federal court.

The very small number of FBI agents, compared to the massive numbers of police and sheriffs, deputies, and State law enforcement officers is such that there is no way they can ever begin to prosecute or investigate these crimes. They have to focus on those crimes that are uniquely Federal, vindicate a uniquely Federal interest.

With regard to the Civil Rights Act that was passed in the 1960s, it has some similarities, although it is more tightly written.

I will conclude with these thoughts: There was a demonstrable record of failure to prosecute violations of civil rights against African Americans in the South, sad to say, and in other places in this country. It appeared that local law enforcement was ineffective, sometimes unwilling, to vindicate those rights, and so the Civil Rights Act said: If you are going to school or a legal activity at the city or county or Federal Government or voting and you are interfered with, that can be a Federal offense.

There was a clear record to justify the need for Federal involvement in those cases. And most of those cases, I think virtually all, have been upheld as being sufficiently tied to interstate commerce to be a legitimate Federal crime to prosecute.

We asked the Attorney General at a hearing recently, can he name any cases? He did not name a single one. But he said in his statement there were four. After the hearing we submitted questions to the Attorney General: Did he have any cases to show that these prosecutions are not being effectively prosecuted locally?

He stood by the four. That is all we ever got over a period, I think, of 5 years. At least that is what I asked him for. And the four cases were very insubstantial. In each one of the four cases prosecutions were initiated. I think in all but one convictions were obtained.

Some people were not happy with the results of the case, and they would have liked the Federal Government to take it over and prosecute it again. But as I said, there are tens of thousands of cases prosecuted every day, and many victims in those cases felt that the outcome of the case was not sufficient. They would like also for the Federal Government to prosecute it again. But they might not have been in these ``special classes'' that got this ``special benefit'' in this bill.

Do you see then what it is all about? It is basically saying that the Federal Government sits up and hovers above the criminal justice system, and it can decide whenever, based on the length of the chancellor's foot, I suppose, when a case has not effectively resulted in justice.

They said in their answer, they want to make sure that there is justice every time. That is a pretty high goal, I have got to tell you, especially when people might not agree. Juries make decisions. I hope we in this Congress will understand the huge responsibility we have to the historic concept that crimes of a local nature should be prosecuted locally, and that the Federal Government does not need to be involved in everything to try to ensure perfect justice.

Indeed, it is not involved in every case and it never has been. It should not be. I wanted to make these quotes a part of the Record, and call on the Members of the Senate as we go forward in the future to make sure that the legislation we pass is consistent with our heritage, which understands that the Federal Government does not have a general criminal power, has only narrow limited enumerated power to make crimes Federal, and we ought not overreach and create a situation in which, according to the U.S. Civil Rights Commission in their letter to us: Every single rape would be a Federal crime because the action would have been carried out as a result of the gender of the person being assaulted.

Ms. Heriot said she had talked with the Department of Justice in previous years about this, before she was on the Commission, and they refused to narrow the language because they wanted that broader language.

I think that is too broad. This bill is too amorphous and too broad and should not become law.

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

Mr. President, I ask unanimous consent that my legislative fellow, Navy LCDR Tim Long, be granted the privilege of the floor during consideration of S. 1390, the National Defense Authorization Act of 2010.

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

Mr. President, we just approved a 3-year extension of the Religious Workers Act, which has a good goal and a worthy motive. We need to do better with this program.

We did have, in this legislation that passed, a study of the program to see how well it is working. But in July of 2006, the Homeland Security Department conducted an evaluation of the program, and it was not a good report. Essentially, the situation is that a religious group would be entitled to ask for and petition for someone to be brought into the country to work in their religious entity. It is called a ``religious worker program.'' It is usually not a minister, but some sort of lay worker.

The assessment was done by the Homeland Security group. It was an assessment of 200-plus cases, without any indication that any of those were fraudulent. They just took them at random and checked the 220 cases. Field inquiries were conducted where necessary, and fraud was determined to be the willful misrepresentation or falsification of a material fact--that means something that would probably have meant they were not entitled to the benefit of the program.

Under this evaluation, it was found that out of 220 cases evaluated, 72 were fraudulent; that is, 33 percent--or 1 out of 3--of the religious workers entering the country under this program entered fraudulently. That is not a good record. In fact, it appears to be the highest fraudulent record of any immigrant program we have in the country.

They cited some of the examples of abuses. For example, a beneficiary was invited into the country by a petitioner to work at a religious institution, and when they checked, the institution didn't exist. And the petitioner had filed a number of other petitions bringing in other people.

Another one dealt with a paper church--a church that didn't exist-- and the addresses and all that were given were not legitimate.

Another one: Age 33, the beneficiary. The person who filed the petition to bring this foreign worker in couldn't be located, and there could be no connection between the person who petitioned and the group for which they claimed to be petitioning. So it appears that this individual petitioned for another individual to come and work at a school or a church, and the school or church they said they were going to work at didn't even know this was happening. Of course, when the person came in, they were therefore just able

to enter the country illegally and never worked at a church.

There are several more like that. Here is another one. The signer of the petition was no longer at the school, and the school board members interviewed said they didn't know who was invited to come through the petition and were not even aware a petition had been filed.

In another case, the petitioner had filed at least 82 petitions, with many fraudulent indicators, including the misrepresentation of the qualifications and duties of the beneficiary.

Another one dealt with a situation where the beneficiary couldn't be located, and the petitioner whose name was on the petition when found and interviewed said he didn't know anything about the filing. He didn't file it. So somebody just filed it and used his name and brought in somebody, supposedly to work at a religious institution, and it was all bogus.

So this is a program which has some real difficulties. I hope the study will help us figure out how to make it a more honest system that can meet the goals of our program without allowing for so much fraud and abuse.

Mr. President, I yield floor.

Mr. President, recently the Bureau of Labor Statistics reported that the unemployment rate in June of this year had jumped to 9.5 percent; 467,000 jobs were lost in June alone. This is the highest unemployment rate in 25 years.

The Congress passed, earlier this year, a stimulus bill. The purpose of it was to create jobs and reduce unemployment. We were told if we pass that bill, unemployment would top out at 8.4 percent. Well, it just hit 9.5 percent. A report released by the Heritage Foundation and the Center for Immigration studies has estimated that 15 percent of the construction jobs created by the Senate stimulus bill would go to illegal immigrants--about 300,000 jobs.

The question is, is there anything we can do about it? The answer is yes. We have an E-Verify system where employers voluntarily, all over the country, are using a computer verification system to determine whether the job applicant who appears before them is here legally and entitled to work. The Federal Government uses that same system for every employee it hires, but we did not require that for employers who get government contracts under the stimulus package. Contractors who get money under the stimulus package are not required to use E-Verify.

The system is pretty successful. It is not foolproof, but Secretary Napolitano of Homeland Security 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 deter the hiring of persons not authorized to

work in the United States.

That was a good statement from Homeland Security. But the reality is that President Bush's Executive order that was to take place in January, which would have required all government contractors to use E- Verify, has been pushed back four times. So that is why I offered this legislation.

It is perfectly appropriate for Congress to pass legislation to require this. I have been advised today, though, of some good news. Secretary Napolitano apparently will issue a statement later today saying that after three or four extensions and putting off the E-Verify mandate for government contractors she will issue that order. So that is good news.

What would my amendment do? No. 1, it would make that not just a Presidential policy subject to delay or implementation or withdrawal whenever they wanted; it would make it a permanent rule that people who have contracts with the government would have to use the E-Verify system. Instead of a 3-year extension of the E-Verify system, as provided for in this bill, it would go on and make it permanent. It is a cornerstone today of a system that will work to a considerable degree to reduce the number of illegal workers who are getting jobs--taking jobs from American workers at this particularly difficult time. I think it is a good step. I am glad the Secretary is moving forward finally on making that a reality.

I hope my colleagues will step forward now and let's make this a permanent system. It is certainly contemplated to be permanent. But for odd reasons, to me, there seems to be a reluctance to make it so. The system is up and running. It can handle millions more than the millions it is already handling today. It is designed for a much larger use. It will make a difference, and it will identify quite a number of people who are here illegally seeking to work. In fact, I think the system should be made to apply to all businesses in America. I believe we can do that and should move in that direction. But the first step, it seems to me, would be to say if we are going to create a stimulus package, if this government is going to give contracts to private contractors who do work for the government, they ought to at least ask them to verify whether the person is legally in the country.

Yes, there are some good things additionally that need to be done, such as a biometric identification system, which Senator Schumer referred to last night. I would heartily support that, but I believe this is the initial step that ought to be taken. The system should be made permanent and the requirement that contractors of the government should be a part of our law today.

I urge my colleagues to vote for it. I think it would be consistent with the stated policies of the Obama administration and consistent with what the Senate has been working on for some time. I am baffled that Members would not support it.

I yield the floor.

Mr. President, on behalf of several Senators, I object to the distinguished Senator's request. I respect him, but there is an objection on this side.

Mr. President, first, if I may respond to Senator Schumer, it is my understanding that Secretary Napolitano's executive order will be different than the Executive order the Bush administration had, finally, after some delay, approved in that it would say that a government contractor would not have to check the employment history of employees working for them through the E-Verify system--their validity--but only new hires they bring on, which is quite a different thing.

I am aware of a businessman in Alabama who has had highway-type work with good employees for many years--decades. He told me he is not now able to compete and is losing contract after contract because his competitor is using illegal labor. This is not an iddy-biddy matter; it is real. I hope I am incorrect about what I understand the Secretary's decision to be. If I am correct, I don't think the proposal is what it should be, and it will still be insufficient.

Reserving the right to object, I am not familiar with the amendment.

Mr. President, I have no objection to the second-degree amendment offered by the chairman of the Judiciary Committee.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Madam President, how much time is left?

Madam President, I express my appreciation to the Senator from Tennessee for his insightful comments. Indeed, it is a tangled web we create when we first start to regulate. It is a tangled web, too, when we start owning automobile companies which we know nothing about. Madam President, we are looking forward to next week and working as hard as we can to ensure that we have a very fine confirmation hearing in the Judiciary Committee for the judge nominated to be a Justice of the Supreme Court by President Obama, Judge Sotomayor. I will share a few thoughts about that and some matters that I think are important for my colleagues to think about as they study this issue and work to do the right thing about it.

The President's nominee is, of course, his nominee, and it is our responsibility--and the only opportunity the American people have to know anything about this process is the hearing in which the nominee has to answer questions and respond. Senators will make comments and ask questions.

When we elevate one of our citizens to a Federal judgeship, we give them an awesome responsibility, and particularly so when elevated to the Supreme Court. They are the final word on our Constitution, how the Constitution and our laws are to be interpreted. Some judges, I have to say, have not been faithful in their responsibilities. They have allowed personal views and values to impact them, in my view. We ask them as judges to take on a different role than they have in private practice. We ask them to shed their personal beliefs, their personal bias and, yes, their personal experiences. We ask them to take an oath to impartial justice.

Our wonderful judicial system--the greatest the world has ever seen-- rests upon this first principle. It is an adversarial system that is designed to produce, through cross-examination and other rules and procedures, truth--objective truth. The American legal system is founded on a belief in objective truth and its ascertainability. This is a key to justice.

But in this postmodern world, our law schools and some intellectuals tend to be of a view that words don't really have meaning; words are just matters some politically powerful group got passed one day, and they don't have concrete meanings and you don't have to try to ascertain what they meant. And, indeed, a good theory of law is to allow the judge to update it, change it, or adopt how they would like it to be.

I suggest this is not a healthy trend in America. It impacts this Nation across the board in so many ways. But I think it is particularly pernicious, when it comes to the law, if that kind of relativistic mentality takes over.

This notion of blind justice, objectivity, and impartiality has been in our legal system from the beginning, and it should not be eroded. Every judge takes this oath. I think it sums up so well the ideals of the fabulous system we have. A judge takes this oath:

I do solemnly swear that I will administer justice without

respect to persons, and do equal right to the poor and to the

rich, and that I will faithfully and impartially discharge

and perform all the duties incumbent upon me under the

Constitution and laws of the United States, so help me God.

Well, I guess the Court hasn't gotten around to striking their oath yet--at least that part that says ``so help me God.'' Those phrases have certainly been attacked around the country by Federal judges, in many instances. This oath--I have to say this--stands in contrast to the President's standard for judicial nominees.

I am concerned, based on her speeches and statements, that it may also be the judicial philosophy of Judge Sotomayor.

In 2005, then-Senator Obama explained that 5 percent of cases, he believes, are determined by ``one's deepest values and core concerns . . . and the depth and breadth of one's empathy.'' He means a judge's personal core concerns, values, and empathy.

Well, according to the President, in 5 percent of the cases where issues are close, that is acceptable. I think we must draw from his statement that it is acceptable for judges to not set aside their personal beliefs, not discard personal bias, not dispense with their personal experiences as they make rulings, as they decide cases, which is what judges do.

According to the President, in 5 percent of cases, Lady Justice should remove her blindfold, take a look at the litigants, and then reach out and place her thumb on the scales of justice on one side or the other. I think this is a dangerous departure from the most fundamental pillar of our judicial system--judicial impartiality. That is why judges are given lifetime appointments. They are supposed to be unbiased and impartial.

Whatever this new empathy standard is, it is not law. It is more akin to politics than law. Whenever a judge puts his or her thumb on the scale of justice in favor of one party or another, the judge necessarily disfavors the other party. For every litigant who benefits from this so-called empathy, there will be another litigant who loses not because of the law or the facts, but because the judge did not empathize or identify with them.

What is empathy? Is this your personal feeling that you had a tough childhood or some prejudice that you have--you are a Protestant or a Catholic or your ethnicity or your race or some bias you brought with you to life and to the court? Is that what empathy is? Well, it has no objective meaning, and that is why it is not a legal standard. The oath of ``impartiality'' to ``equal justice to the rich and the poor alike'' is violated when such things infect the decisionmaking process.

With this as his stated standard, the President nominated Judge Sonia Sotomayor for the Supreme Court of the United States. Thus far our review of her record suggests that she may well embrace the President's notion of empathy, and I will share a few thoughts on that.

On a number of occasions over the years, Judge Sotomayor delivered a speech entitled ``Women in the Judiciary.'' In it she emphasizes that she accepts the proposition that a judge's personal experiences affect judicial outcomes:

In short, I accept the proposition that a difference will

be made by the presence of women on the bench and that my

experiences will affect the facts that I choose to see as a

judge.

In fact, in one speech, she rejected another woman judge's view that a woman and a man should reach the same decision in a case. She explicitly rejected that concept. She reaffirms:

I simply do not know exactly what that difference will be

in my judging, but I accept there will be some [differences]

based on my gender and the experiences it has imposed on me.

I think this would tend to be a rejection of even the aspiration, the ideal, of impartiality that is fundamental to our legal system and our freedoms.

In a later speech, Judge Sotomayor takes a giant step, expressing a desire to draw upon her experiences in her judging. She states:

Personal experiences affect the facts judges choose to see.

My hope is that I will take the good from my experiences and

extrapolate them further into areas with which I am

unfamiliar. I simply do not know exactly what that difference

will be in my judging. But I accept that there will be some

based on my gender and my Latina heritage.

Well, are the days now gone when judges should see their taking office as a commitment to set aside their personal experiences, biases, and views when they put on the robe? Gone are the days when judges even aspire to be impartial.

In that same speech, which has been given a number of times, Judge Sotomayor goes a step further, saying:

I willingly accept that we who judge must not deny the

differences resulting from experience and heritage, but

attempt continuously to judge when those opinions, sympathies

and prejudices are appropriate.

She says a judge should attempt continuously to judge when those opinions, sympathies, and prejudices are appropriate. That means that a judge's prejudices are appropriate to use in the decisionmaking process.

I find this to be an extraordinary judicial philosophy. Some might say you

are making too much of it, that empathy sounds fine to me; I don't have any problem with that. Empathy is great, perhaps, if you are the beneficiary of it. The judge is empathetic with you, your side of the argument, but it is not good if you are on the wrong side of the argument, if you don't catch a judge's fancy or fail to appeal to a shared personal experience.

This approach to judging, as expressed in her speeches and writings, appears to have played an important part in the New Haven firefighters' case Senator McConnell mentioned earlier. These are the 17 firefighters who followed all the rules, studied for the test. It was publicly set out how the promotions would take place in that department. A number of people passed, but a number of people did not, and there were a number of minorities who did not pass. They wanted to change the test after it had been carried out, to change the rules of the game after it had been carried out because they did not like the results. This is a results- oriented question.

Bowing to political pressure, the city government looked only at the test results and the statistical data and changed the rules of the game. They threw out the test. This was challenged by the persons who passed. The district judge then agreed with the city in a 48-or-so-page opinion. It was appealed to Judge Sotomayor's court. In one paragraph only, she agreed with that decision, even though it raised fundamental, important constitutional questions, important questions.

She concluded that the complaining firefighters were not even entitled to a trial, that the pretrial motions were sufficient to deny them the remedy they sought and to affirm the city's opinion in one paragraph.

The U.S. Supreme Court disagreed. They wrote almost 100 pages in their opinion, and all nine Justices voted to reverse the opinion. It was not 5 to 4. Five of the Justices, the majority, ruled that based on the facts in evidence that had been presented prior to trial, the firefighters were entitled to total victory and be able to win their lawsuit. This is a pretty significant reversal, I have to say.

The question is: Did she allow her prior experiences and beliefs to impact her decision in that case? I point out that she was an active member of the Puerto Rican Legal Defense Fund, where she spent a number of years working on cases such as this and filing litigation and challenging promotion policies in cities around the country, which is a legitimate thing for a group to do. But they did take a very aggressive standard criticizing tests and the standardized process of testing.

Of course, her stated philosophy is that a judge should use life experiences in reaching decisions. We do know she believes a judge is empowered to utilize his or her personal ``opinions, sympathies, and prejudices'' in deciding cases. We do know her particular life experiences with the Legal Defense Fund were contrary to the claims brought by the New Haven firefighters. We know she was a leader and board member and chair of that organization's litigation committee. According to the New York Times, she ``met frequently with the legal staff of the organization to review the status of cases.'' According to the New York Times, ``she was involved and was an ardent supporter of their various legal efforts.'' She oversaw, as a board member and litigation chair, several cases involving the New York City Department of Sanitation, which challenged a promotion policy because Hispanics comprised 5.2 percent of the test takers but only 3.8 percent had passed the test. They declared that was an unfair result and challenged the test. Another involved the New York City Police Department on behalf of the Hispanic Police Society. Another one involved police officers in a discrimination case challenging the New York Police Department's lieutenants exam, claiming that exam was biased.

Under her leadership, the Puerto Rican Legal Defense Fund, before she became a judge, involved itself in a series of cases designed to attack promotion exams because the group concluded that after the fact, after the test, not enough minorities were being promoted. It sounds a lot like this firefighters case we talked a good bit about so far.

We are left to wonder what role did the judge's personal experiences play when she heard the case. Did her personal views, as she has stated, ``affect the facts she chose to see?''

Madam President, I ask unanimous consent for 1 additional minute.

Madam President, those are important questions, and we will ask about them and give her full and ample opportunity to respond. I did wish to raise these issues.

The firefighters were denied promotion, and under her stated philosophy, her prior background, they are left to wonder: Was perhaps the reason they lost in her court because she brought her background and her prejudices to bear on the case and did not give them a fair chance? Very few cases are taken by the Supreme Court, but the Supreme Court did take this one, to the benefit of the firefighters, and reversed this decision. All nine Justices concluded the decision was improperly done and should be reversed, and five of them rendered a verdict in favor of the firefighters on the record as existed then.

I yield the floor.

Madam President, I have an amendment at the desk, No. 1371, and would ask for its immediate consideration.

Madam President, I ask unanimous consent that the reading of the amendment be dispensed with.

This is an amendment to make permanent the E-Verify system that is supported by Secretary of Homeland Security Napolitano and would require that all governmental contractors who do work for the Federal Government use it before they hire people to ensure that the individuals they hire are Americans and not illegally in the country.

At a time when our unemployment rate is now 9.5 percent, this is more important now than ever.

I yield the floor.

Madam President, I offered an amendment to the Homeland Security legislation that is before us which would make that system permanent, and make its use mandatory for contractors that do business with the U.S. Government.

Essentially, employers all over America are accessing the E-Verify online system that allows them to have an instant check to determine whether the person who has applied for employment with them is legally in the country. They simply check their Social Security number and other data against the Social Security Administration and Department of Homeland Security databases. When the system determines a person is not here legally, employers don't hire them. Over 96 percent of the people are cleared automatically when a business checks. Of the remaining 3.9 percent of queries with an initial mismatch, only .37 percent of those were later determined to be work authorized. A certain percent of applicants are found to be here illegally, and they should not get a job or any taxpayers' money from a part of the stimulus package. Stimulus funds were set aside to help us reduce our unemployment rate in this country and to hire American workers. The prospect of jobs should not be a magnet to draw more illegal workers into the country.

The first thing you do, if you have an immigration problem, is stop rewarding those who break the law. One of the things you do not do is reward people who come illegally with jobs. You do not have to arrest them or do anything unkind. You simply do not hire them, especially with taxpayers' money that is designed to create American jobs.

This has been a matter we have talked about for some time. It is very important in this time of economic slowdown because the Bureau of Labor Statistics reported that the unemployment rate for June, just a week or so ago, had jumped to 9.5 percent, 467,000 jobs lost, the highest unemployment rate in 25 years. We have massive job losses. A lot of good people are out of work, they need work and are willing to work.

E-Verify is not a perfect system. People can find ways beat it, no doubt, but it actually works. One study by the Heritage Foundation concluded that as much as 13 percent of the jobs created under the stimulus plan would go to people illegally in the country the way we were operating. By utilizing the E-Verify system, I have no doubt we could drop that percentage dramatically. I am very concerned about it. I am a bit baffled by the difficulty we have had in moving forward with this amendment.

I will say that two bits of progress--small progress, I know--have occurred. The House Homeland Security appropriations bill for fiscal year 2010 has come over to the Senate, and it includes a 2-year extension of E-Verify. That is better than letting it expire. In addition, the Senate version of the bill includes a generous 3-year extension of this proven system. I have to say that is OK, but neither bill has any language that would make this system permanent. It leaves it on very shaky ground, making businesses that might voluntarily want to utilize it wonder if it really is the policy of our country to use it. Madam President, over 1,000 businesses a week are now voluntarily signing up to use the system.

Failing to make the system permanent also raises questions about the sincerity of our commitment. More significantly, neither one of the bills has any language that says that government contractors, people who are doing work for the U.S. Government, paid for by us, the taxpayers, must use this system. I ask, Why not? What possible, justifiable, rational reason can we give to pass legislation designed to help deal with this recession, to try to create American jobs and not make sure federal contractors only hire lawful workers? What basis could we utilize to say that those contractors should not at least take about 2 minutes--that is about all it takes to punch in a Social Security number into the system--to see whether a person applying for a job is legally in the country.

There is a long history on this amendment. For some reason, interest groups have been lobbying against permanent authorization and mandating use of E-Verify by federal contractors. Certain business groups oppose this amendment. It scares them. Why? I suggest there is only one logical conclusion: They like the idea of hiring illegal workers. But how can we as Members of the Senate representing the American taxpayers possibly justify using their money that is designed to create jobs for American citizens to hire people who are here illegally, creating an even greater magnet to attract more people to come into our country illegally?

I have offered this amendment to the appropriations bill to ensure this successful program be made permanent. And, of course, any time in the future if it ceases to be practical, we could end it. But this amendment would make it permanent, sending a signal--that is part of what we want to do--and it would also be mandatory for government contractors. If a Federal contractor gets a contract to do work, at

least they ought to determine whether a worker is legally in the country before they hire them. I don't think that is too much to ask, and I cannot imagine why anyone would oppose it. But I understand, once again, we are going to have objections.

It is working, and Department of Homeland Security Secretary Janet Napolitano recently said this in response to a question I asked:

The administration----

She is talking about the Obama administration--

strongly supports E-Verify as a cornerstone of work site

enforcement and will work to continue to improve the program

to ensure it is the best tool to prevent and deter the hiring

of persons who are not authorized to work in the United

States.

I think that is a pretty good affirmation of it. In fact, that has been a known reality for years. We have known this system has worked for years, but we have had people say: Oh, it is a bureaucratic nightmare. Why do businesses voluntarily sign up to use it, then? They say some people might be held up in employment. Under the bill, if something in the system raises questions about your employability, the person can still be hired while the problem is worked out. What we found is that 96 percent of the people are cleared immediately and only a very small number have turned out to have some sort of mistake in their situation. It is just not a practical objection, in my view.

I understand that some are claiming--my colleagues on the other side of the aisle--that it looks as if Secretary Napolitano will announce something with regard to federal contractors soon, maybe even tomorrow. That would be good. It would be a Presidential directive that could, in the short run, solve this problem. But we have heard that talk before.

President Bush finally, after being subjected to some criticism about this, issued Executive Order 12989 last June. That order mandated the use of the E-Verify system for Federal contractors and subcontractors and was supposed to take effect in January of this year. President Obama came in, as he has the power to do, and he delayed implementation of the order. Indeed, we have had four delays to date in implementing this Executive Order. The first was when President Obama said that the January 28 date was not appropriate. He put it off to February 20 and said that on February 20, businesses that get government contracts have to use the system. Then a few weeks later, the implementation was pushed back to May 21. Before May 21 got here, they pushed it back to June 30. A few weeks ago, we heard it would not be implemented until some time in September. And now we are hearing that they may implement it soon.

E-Verify is certainly one of the most effective tools we have, as the Secretary herself has stated. Why are we not moving forward with making it permanent, I ask. I ask Members of Congress in the House and in the Senate, why don't we play a role in this? Why leave it totally up to the President, who is subjected to all kinds of political and corporate lobbying to not do this program? Why don't we as a Senate just pass it, as we do so many other things, and make it law? If Secretary Napolitano plans to do this in the future, it wouldn't conflict with anything she planned to do. If they were not going to do it, it would be mandated and it would come into effect.

We have to be aware that we have had a lot of obstacles before with the implementation with this system and it has not gone forward in an effective way. I don't think we should wait any longer. Jobs are being lost every single day. They are being lost in significant numbers to people illegally in our country.

T.J. Bonner, the head of the Border Patrol Union, told us most passionately at a Judiciary Committee hearing a number of years ago that jobs are the magnet. If you can stop the magnet, the number of people they have to deal with at the border can be reduced. It sends a signal that the days of open borders and the ability to get a job even if you are illegally here are past. That is the way you do things and make it work. It is all part of a plan to send a message to the world that we are not open for illegality. Under E-Verify nobody is arrested, nobody is captured and taken to be deported. We just simply are taking a reasonable step to reduce the magnet of jobs from taxpayers' money, not private businesses, just government businesses and government contractors. The Federal Government uses it today in its hiring process.

I was surprised to hear one of my Democratic colleagues asking that we not support this amendment, saying that we should have a biometric employment identification database and that he cannot support E-Verify because it is not strong enough. That was a remarkable thing. Anyone who has studied the history of this program has good reason to wonder about the sincerity of people who object because E-Verify is not tough enough. The reason people are objecting is because it works. That is why the immigrant advocacy groups and the business crowd object to it. That is why. There may be better systems, but this one has been up and running for some time and been incredibly successful.

It was contended that I.D. thieves can defeat the system. I suspect that is so. But does that mean the system has to be perfect before we use it? That argument ignores the fact that this bill appropriates a significant amount of extra funds to assist the Department of Homeland Security's continuing effort to reinforce the system's antifraud protections. We have money in this legislation to try to eliminate the ability of people to defeat the system by fraud.

I don't think the argument can rationally be made that extending it would be ``a waste of taxpayers' money.'' We already have the system up and running. In reality, it is not going to cost any more money to have people use it. The system is up and working. I guess if people want to use that as an excuse to vote against the amendment, they can, but it makes little sense to me.

I would like to see an enhanced biometric system. It is absolutely something that can work. We need to do that. There are a lot of things we can do this very day, but you have to admit, if we cannot get the votes to just maintain the E-Verify system, it looks as if we may have even more difficulties with an advanced system.

I won't go on at length about this anymore. We have debated it before. Earlier this year on the stimulus bill, I offered an amendment to make E-Verify apply to the stimulus bill and the people who got government contracts would have to use it. The House put that in their bill. I kept getting objection from the Democratic leadership to my amendment. I couldn't understand why. And then I began to think about it, and it dawned on me what was happening. If my amendment were to pass and the language was in the House bill, unless real skullduggery were to occur, that language should be in the final bill. But if they could keep the language out of the Senate bill, even though the House had put the language in their bill by an overwhelming vote, they could take it out in conference when they meet in secret to deal with the conflicts between the House bill and the Senate bill. So I brought it up three or four times, and every time I tried to get a vote, it was blocked.

Then, finally, the bill passed without my amendment having passed. And do you know what happened? When they met in secret, in conference, the House leadership--the Speaker and her team--receded to the Senate bill, agreed to eliminate their language, and therefore the language wasn't in the bill. And what happened politically? All the House Members, Republicans and Democrats, could say: I voted for E-Verify. And the Senate Members, when hearing complaints, could say: Well, I would have voted for it if it had come up. It just never came up.

See, this was the plan all along. I just have to tell you what the truth is and how this happened and what is at work out there.

So I hope Secretary Napolitano will do what she can do and the President will do what he can do and order that this system be mandatory for government contractors and to permanently authorize it. But I don't see any reason in the world why we should wait on that. What we should do as a Congress, if we believe in what we say about our goal to eliminate the surge of illegal immigration and trying to protect American jobs at this time of economic recession, is we ought to vote for the amendment. What harm can there be?

So I urge my colleagues to do the right thing on this amendment and vote for it. I am baffled as to why there would be hesitation about it. I think if people look at it, it is very simple. The E-Verify system is up and running. The government employment offices use it before they hire anybody for the government. Thousands of businesses are using it every day. Over 130,000 employers are currently enrolled in the program, and about a thousand businesses a week are signing up to use it. It protects them, in a way. If somebody says: You knowingly hired illegal workers, they can say: I checked and they had a good I.D. and a good name, and I did my best. And that will protect them from complaints against them. Most employers want to do the right thing. They do not want to hire people who are not lawfully in the country. So that is why it is working even as a voluntary program. We are not hearing complaints about it. It is not violating people's civil rights. It is working in a healthy way.

All we need to do now is make this system permanent, not keep leaving it out here in limbo. And secondly, let's make sure it applies to people who not only go directly to work for the U.S. Government but for contractors who do work for the government, people who are getting money under the stimulus bill, which was designed to create jobs for American citizens.

I thank the Chair, and I yield the floor.

Madam President, I suggest the absence of a quorum.

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

Madam President, the nomination of a new Justice to the Supreme Court has somewhat unexpectedly brought to our mind a core question both for the Senate and the American people, and that is: What, if any, is the appropriate role for foreign law to play in the interpretation of our Constitution--meaning, should judges look at what other countries say when they are determining what are our constitutional rights.

This is not an academic question; it is a question that has the potential to impact our fundamental rights guaranteed to us by the U.S. Constitution.

Until recent years, the answer has always been understood to be no, apart from a few rare circumstances, certainly, and certainly never in the interpretation of the meaning of our precious constitutional rights.

This traditional understanding has served to protect our constitutional right by ensuring that judges remain true to the will of the American people, not the will of foreign judges or courts.

Our system has a critical component: moral authority. That moral authority

comes from the basic concept that our law is a product of the will of the people through the people they chose to represent them. The Constitution begins ``We the People do ordain and establish this Constitution.'' Our laws are enacted by a Congress, a body subject to the will of the people, composed of people elected by the people. We are accountable to the American citizens.

The novel idea that foreign law has a place in the interpretation of American law creates numerous dangers. A number of academics, and even Federal judges, I would say, are seduced by this idea.

Judge Sotomayor clearly shares in that idea. I am somewhat surprised, but it is true, as I will discuss. Her vision seems to be that we should change our laws, or listen to other laws and judges, and sort of merge them with this foreign law. That is the overt opinion of Mr. Koh, who was just nominated and confirmed to the chief counsel of the U.S. State Department. Mr. Koh is quite open about it--shockingly so, really.

But I suggest that if we become transnational, we suffer two monumental blows to our legal system. First, the laws we are subject to would not be laws made by us. This should remind us of the Boston tea party. The colonies objected to paying taxes, but not just any taxes; they objected because the taxes were being imposed on them by the British Parliament, and they didn't have a voice in it. The complaint was ``taxation without representation.'' Thus, the moral power of the American law to compel obedience arises from the people's choice to enact it in the first place. That moral authority is undermined when we allow foreign law, which we had nothing to do with, to impact our law. That is a pernicious thing, I suggest.

Second, it is not ever going to work in a good way. Most countries don't have laws, truth be known. They have politics masquerading as laws. Trying to merge our system, based on truth, the law, and the evidence, with these political legal systems will only result in our being shortchanged. We can reach agreements affecting mutual interests with foreign nations and adhere to them as long as we agree to do so-- treaties and other kinds of agreements--but to submit ourselves to their political policies while pretending we are merging our law with theirs is foolishness.

It also creates confusion on a matter of utmost importance. The question is, who does the judge serve, the people of the United States or the people of the world or some individual country with whom they agree or the amorphous ``world community,'' which has been referred to?

Furthermore, reliance on foreign law places our constitutional rights in jeopardy. There are great differences between American and foreign law on cherished rights protected by our Constitution. The Constitution's protection of free speech is probably unparalleled anywhere in the world. Other nations punish sometimes spirited debate on controversial matters. They call it sometimes ``hate speech'' and take action against speech and other things that we would allow without a single thought, but it is criminalized in other countries.

The Constitution clearly protects the right to keep and bear arms. Other nations ban private gun ownership entirely. The Constitution allows for the death penalty. Other nations reject the use of the death penalty, even for violent killers, while some other nations have the death penalty and they impose it without due process being carried out. Yet this troubling potential for infringements on constitutional rights, I suggest, is only the tip of the iceberg.

First and foremost, reliance on foreign law creates opportunities for judges to indulge their policy preferences. In a speech that was given to the Puerto Rico chapter of the American Civil Liberties Union on April 28 of this year, 2009, 1 day after having been contacted by the White House about the possibility of a Supreme Court vacancy, Judge Sotomayor placed herself firmly on what I believe is the wrong side of this debate, stating in this speech:

To suggest to anyone that you can outlaw the use of foreign

or international law is a sentiment that is based on a

fundamental misunderstanding. What you would be asking

American judges to do is close their minds to good ideas.

Well, the ideas our judges are supposed to reflect are the ideas that the Congress sought to be good, the ones we enacted into law--not what was enacted in France, Saudi Arabia, China, or any other place. This is a matter of real importance. This whole concept of foreign law has been a matter of real controversy for several years. It is a timely subject, for sure. I thought it was pretty roundly condemned, although one judge on the Supreme Court defends it. In her speech, Judge Sotomayor explains:

The nature of the criticism comes from . . . a

misunderstanding of the American use of that concept of using

foreign law, and that misunderstanding is unfortunately

endorsed by some of our own Supreme Court justices. Both

Justice Scalia and Justice Thomas have written extensively

criticizing the use of foreign and international law in

Supreme Court decisions.

So she criticized Justice Scalia and Justice Thomas, who have expressed opposition to this. Let me be blunt. I believe it is Judge Sotomayor, not Justices Scalia and Thomas, who is wrong.

Under her approach, a judge has free rein to survey the world to find what they might consider to be good ideas and then impose these views on the American people, calling it law. However, this is not the American system. Our system requires judges to adhere to this Constitution, to the statutes, and to the legal precedent, to the end that judges follow the will of the people of our country as expressed in our law.

The Constitution says ``We . . . do ordain and establish this Constitution for the United States of America,'' not some other. Judges are not free to amend it by citing some other foreign constitution. I think this is a big deal.

Judges are not free to indulge their own personal opinions about what good policy is. Judges do not set policy and search for support for that in foreign law. Despite Judge Sotomayor's claim at a Duke Law School panel discussion that ``courts of appeals is where policy is made,'' judges are not policymakers. They are servants of the law, if they are fulfilling their role properly--the law as it is, not the way they might wish it to be.

Second, reliance on foreign law causes confusion rather than clarification as to the state of American law. Judge Sotomayor claims that foreign law ``can add to the story [sic] of knowledge relevant to the solution of . . . [a] question [sic],'' paraphrasing Supreme Court Justice Ruth Bader Ginsburg, who pioneered this concept. She made those statements. Judge Ginsburg's citation of it in cases and her defense of it in speeches has really led to this controversy to which Justices Scalia and Thomas have responded.

On the contrary, reliance on foreign law creates confusion. Consider Judge Sotomayor's dissenting opinion in Croll v. Croll in the interpretation of a treaty--one of the few instances in which reliance on foreign law may be perfectly permissible. Judge Sotomayor repeatedly criticized the majority judges on the panel as ``parochial'' for consulting American dictionaries to understand the meaning of custody as determined by the Hague Convention on International Child Abduction, and then she relies on foreign interpretations of those words instead. Yet the majority rightly rebuked Judge Sotomayor for relying on the scattered and divergent foreign legal cases on this subject. The majority even cites a Supreme Court precedent that warns against relying on foreign law where it is in a state of confusion.

Third, the reliance on foreign law is also based on a misconception that judges, rather than elected officials in the political branches of government, play a role in advancing our Nation's foreign policy.

Judge Sotomayor states this:

I share more the ideas of Justice Ginsburg in thinking . .

. that unless American courts are more open to discussing the

ideas raised by foreign cases, and by international cases,

that we are going to lose influence in the world.

But judges are not diplomats. It is the job of diplomats to protect our standing in the world, and they have to explain to the world why we rule the way we rule on our cases. That is their responsibility.

Fourth, reliance on foreign law blurs the distinction between domestic and

foreign law, undermining our ability to make democratic choices. The examples of the Supreme Court reliance on foreign law, cited approvingly by Judge Sotomayor, involved the interpretation of the Constitution dealing with purely domestic legal issues that do not and should not touch on any matter of international concern. For example, she approvingly cites the case of Roper v. Simmons in which five Justices of the Supreme Court recently rendered a decision based in part on their review of foreign law and concluded that our Constitution declares that we cannot execute a violent criminal if that criminal is 1 day under 18 years of age when he killed someone or a group of people. There is nothing in the Constitution that says that. They found some foreign law to make an argument about what the Constitution says about what age a State can set for the death penalty. I know we can disagree on what the age should be, but it is a legislative matter.

The Court in that case said it was looking to ``evolving standards of decency that mark the progress of a maturing society.'' What kind of standard is that for law? Where do you find what a maturing society now believes? Do you check with China? Do you check with Iran? Or maybe France? Where do we do this? How do they divine what this all is?

The Court concluded that the death penalty violated the eighth amendment which prohibits cruel and unusual punishment. There are at least six or more references in the Constitution itself to capital crimes, to taking a life without due process. It has always been contemplated in the Constitution that the death penalty is not cruel and unusual. That was for drawing-and-quartering and such matters as that.

If basic constitutional rights are subject to redefinition by considering foreign law, our Constitution ceases to be the bulwark for our liberty it has always been. The Constitution will be weakened. Its authority and power will be diminished. Yet this is precisely the view of foreign law advocated by Judge Sotomayor, who says that these courts that do this ``were just using foreign law to help us understand what the concept meant to other countries, and to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking.'' I am not sure, did the judge conduct worldwide polls of human thinking? How does a judge find out what the mainstream of human thinking is? In truth, many of the critics of this idea have hit the nail on the head. They say that all it does is allow a judge to look around the world to find somebody who agrees with them and use that as authority to do what they wanted to do all along.

Judge Sotomayor not only advocates for reliance on foreign law, but she also goes a step further than Justice Ginsburg, advocating for adoption of the techniques of foreign judges, even ones that serve to conceal the individual judge's reasoning process from public scrutiny.

In her forward to the book ``The International Judge,'' which she was chosen to do, Judge Sotomayor states:

[T]he question of how much we have to learn from foreign

law and the international community when interpreting our

Constitution is not the only one worth posing. As ``The

International Judge'' makes clear, we should also question

how much we have to learn from international courts and from

their male and female judges about the process of judging and

the factors outside the law that influence our decisions.

In her speech in 1999, Judge Sotomayor expressed admiration for the French tradition of judicial panels of judges issuing single decisions, commenting:

With a single decision, there is less pressure on

individual judges and less fear of reprisal for unpopular

decisions.

According to law professor William D. Popkin, French legal opinions are anonymous, unanimous, and laconic, the legal ``equivalent of flashing a policeman's badge,'' and ``[t]he irony about French judicial opinion writing is that minimal reason-giving allows French judges to conceal a bold judicial lawmaking role, perhaps even bolder than in the case of U.S. and English judges because of the lack of any formal notion of precedent.''

That is different from the American heritage of law. Judges sign opinions. But we have seen at least three very significant opinions in recent years and months from Judge Sotomayor that were per curiam. No one judge assumed responsibility for the decision, and they were very short--so in a way, maybe she is following that--really surprisingly short in the case involving firearms, in the case involving the firefighters in Connecticut. They were very short opinions and not a lot of discussion and per curiam.

The problems with this tradition are clear. The approach makes it easier for judges to conceal the grounds of their decisions, making it more difficult to assess whether their legal reasoning was justified. Only then can one see if proper principles are being followed. Indeed, Judge Sotomayor may already be following that, as I noted with some of the per curiam opinions we have seen.

I have to say the judge wants more international law, not less. Ominously, Judge Sotomayor states:

International law and foreign law will be very important in

the discussion of how we think about the unsettled issues in

our legal system. It is my hope that judges everywhere will

continue to do this because . . . within the American legal

system, we're commanded to interpret our law in the best way

we can, and that means looking to what other, anyone has said

to see if it has persuasive value.

The judge makes an audacious claim that the American legal system commands judges to look at foreign law and highlights the role of making decisions on unsettled cases. There have been and will be many differences between domestic and foreign law on matters that are fundamental. This is normal and understandable because different nations have different cultures, values, and legal systems. The United States should be independent to pursue its own individual choices expressed through the American people through their elected officials to reach the fullest and richest expression of our exceptionalism as a nation.

The American ideal of law is objectivity in deciding the case before the court, that case being sufficient for the day. This is unusual. Most countries are not so restrained. To a much greater degree, foreign judges see themselves as policymakers. In Afghanistan and Pakistan recently, the chief judge was setting all kinds of policy in Afghanistan. I thought it was most unusual. Surely nothing like that would happen here because we have a different heritage.

I suggest that for an ambitious, strong-willed American judge, such freedom to search around the world to identify arguments that might be helpful in allowing them to reach a result they might like to reach would be a great temptation. It is a siren call that ought not to be followed, and great judges do not do so. They analyze the American statutes, the American Constitution in a fair and objective way. They apply it to the evidence fairly and honestly found and render a decision without any regard to the parties before them, to the rich and poor alike, as their oath says. That is why we give them independence as a judge to show they will be more willing to render those kinds of opinions.

I am troubled by this, I have to say. I did not expect to see a nominee who would be one of the leading advocates for the adoption of foreign law in the American legal system. I think it is wrong. I don't think that is a good idea. The American people need to be talking about that issue as they think about the confirmation that will be coming up.

Our nominee, Judge Sotomayor, is delightful to talk to. She has a record and a practice as a private practitioner, as a prosecutor, as a district judge, and an appellate judge. All of those are good. She has many good qualities. But some of the issues I am raising today and have raised previously do cause me concern.

I thank the Chair, and I yield the floor.