Floor Statements

I object.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I want to make a few comments on the vote we had earlier tonight, 80 to 19, on a bill on border fencing along our southern border, where 1.1 million people were apprehended last year crossing that border. We have had a few comments, pro and con today, but there hasn't been a lot of debate. It represents the fourth time we voted on this issue. So we know pretty much what the debate is. I saw no reason to delay our departure tonight. Other matters are being settled as I speak now. I think it is appropriate to take a few moments to comment on it.

No. 1, of course, the fence is not the answer. There is no one answer to reestablishing a legal system of immigration in America, but that must be our goal. If we aspire to be a great nation, a lawful nation, it is absolutely critical that we have a legal system of immigration. We should not reward those

who come illegally, but we should be generous to those who choose to come legally and comply with our rules.

We are a Nation of immigrants. We will remain a Nation of immigrants. We will continue to allow people to come to our country.

I want to say that no one thinks that building barriers at the border is going to solve, by itself, our immigration problem. But it is an important step. If we have to take 10 steps to cross the goal line, this is probably two of the steps necessary to get there. There is no need to delay. We need to get started. It takes some time to accomplish it. Fences multiply the ability of our Border Patrol agents to be successful. We have seen that on the San Diego border. We have seen just how well it has helped bring down crime, how well the property values have surged on both sides of the border--an area that was lawless, crime ridden, and drug infested is moving forward with commercial development in a healthy way. That is just the way it is. There is not anything wrong, hateful, or mean-spirited to say that we integrated a lawful border system in America. The American people understand that.

Indeed, I say to my colleagues that the American people have understood fundamentally and correctly the immigration question for 40 years. They have asked Congress and they have repeatedly asked Presidents to make sure we have a legal system of immigration. But that has not been accomplished. We have not responded to those requests.

Now we have reached an extraordinary point in our history where we have over a million people apprehended annually coming in illegally, and probably, according to many experts, just as many getting by who are not apprehended. So it is time for us to confront and fix this problem.

Another critical step in enforcement--absolutely critical--and it is one that we can accomplish with far more ease than a lot of people think, is to create a lawful system at the workplace. It is not difficult, once we set up the effective rules, to send a message to all American businesses that they need a certain kind of identification to hire someone who has come into our country. If they don't have this legal document, they are not entitled to be hired. This will work. Most businesses will comply immediately when they are told precisely what is expected of them. But that has not been the case. They have not been told what is expected of them. They, in fact, have been told if they ask too many questions of job applicants, they can be in violation of the applicant's civil rights. So lawyers tell them don't ask too many questions.

Then you complain that they have hired illegals, and they say: They gave me this document, and I didn't feel like I could inquire behind it.

So it can work. If we tell our business community what is reasonably expected of them, they will comply with it. That will represent a major leap forward in enforcement. Then we have to ask ourselves what do we do about people who only want to come here to work, and we need their labor? I believe we can do as Canada and many other developed nations have done--create a genuine temporary worker program, a genuine program.

The Senate bill passed in this body that had a section called temporary guestworker. But there was nothing temporary about them. They could come for 3 years and bring their families and their minor children, bring their wives, stay for 3 years, and then extend for 3 years, and then do it again. After 6 years or 7 years, I believe, they could apply for permanent resident status, apply for a green card. Then a few years after that, they become a citizen. How temporary is that?

What Canada says is you can come and work for 8 months. A television show interviewed some people in Canada, and they said: I may stay 4 months or 6 months. They may come and go in the interim many times because they have an identifying card that allows them to come and go for a specified period of time. That could allow us to have the surge in seasonal labor that we need in agriculture and in some other areas. But the agricultural community and other areas that say they need temporary labor have to understand that they do not get to unilaterally set the Nation's immigration policy just so they can have the immigration level, the work level, they need. They don't have that right. They are not speaking for the national interest.

This Senate speaks for the national interest. We must set the policy. Yes, we have a large number of people who are here illegally. How many of those would want to stay permanently? I don't know. I know a number of them would. So I think we will reach the point--hopefully, we can do this next year--where we confront as a Congress that dilemma.

I say to my colleagues as a person who was a Federal prosecutor for many years, do not ever think that you can just grant amnesty to someone who violated the law and that will not have a corrosive effect on respect for law in our country. Granting an amnesty is a very serious thing. It is not something you can just do because you just feel like it, or you feel that is the right thing to do. We must think that through.

My personal view is that for people who have been here a long time and had a good record and have done well but came illegally, we ought to be able to figure out a way that they can stay here and live here. They should not be given every single benefit that we give American citizens, or people who come here legally; otherwise, what is the difference whether you came legally or illegally? Do you see the moral point here. You simply cannot do that and think it has no consequences on the rule of law. So we can reach an agreement on that. It is within our grasp, I suggest, to deal with that most difficult problem of how to deal with people who come to our country illegally.

Finally, the Nation's fundamental approach to immigration is fatally flawed. It makes no sense. It has been wrong for many years. Today, only 20 percent of the people who come into our country come in on any merit-based program. Most come in on relationships with someone already here. Many have come illegally and they obtained amnesty in the past. They look to do that again.

There are many other ways that people come here. But a very small percentage of the people who come to our country today come here as a result of having met certain qualifications that relate to education or job skills. That is not the right approach.

I have looked and met with the top Canadian officials. I met with and talked with top officials of the Australian Government to talk about their program. Both of those programs, and also New Zealand and the United Kingdom, to a lesser degree, France, and other countries are moving to what they call a point system. This is a system by which applicants are evaluated on what they bring to the nation. It is founded on a simple concept that those nations have decided is important to them.

The concept is this: Immigration should serve the national interest. How simple is that? In my committee of Health, Education, Labor, and Pensions, and in my Committee on the Judiciary, we have had a few hearings on this at my request in both cases. Very few Senators attended, frankly.

Repeatedly the witnesses would say: The first question you people in the United States, you policymakers need to decide is: Is the immigration policy you wish to establish one that furthers the national interest? If you want to further the national interest, then I can give you good advice. If your goal is to help poor people all over the world and to take the national welfare approach, then we can tell you how to do that. You have to decide what your best goals are. If your goal is simply to allow everyone who is a part of a family, even distant relatives, to come, if that is your No. 1 goal, we can create a system that does that. But fundamentally they tell us, when pressed, that an immigration system should serve the national interest.

Professor Borjas at Harvard wrote a book, probably the most authoritative book on immigration that has been written. The name of it is ``Heaven's Door.'' He testified at our committee hearing. He made reference to the fact that we have within our immigration system a lottery. This lottery lets 50,000 people apply to come to our country from various countries all over the world. We draw 50,000 names out, and they get to come into the country,

not on merit but just pure random choice.

It makes sense under the idea when it was originally created, which was we needed more diversity, we needed people from different countries, and this would give people from different countries a chance to apply.

Professor Borjas at the Kennedy School at Harvard, himself a Cuban refugee, came here at age 12, said 5 million people apply to be in that lot from which we would choose 50,000--5 million. So if we have 5 million applicants, I ask my colleagues, and we are attempting to serve the national interest, how would we choose from that 5 million if we could only select and allow in 50,000? How would we choose if we are serving the national interest?

I submit we would do what Canada does. We would say: Do you already speak English? How well? Do you have education? How much? Do you have job skills? Are they skills that we need in Canada? How old are you? Canada--I think Australia also--believes that the national interest is served by having younger people come because they will work longer and they will pay more taxes before they go on to the Medicare and health care systems in their older age.

Are those evil concepts? Isn't it true that we would want to have people come into our country who have the best chance to succeed? Or do we believe the purpose of immigration is simply to allow certain businesses that use a lot of low-skilled labor to have all the low- skilled labor they choose to have? A willing employer and a willing worker.

Professor Borjas says there are millions and millions of people all over the world who would be delighted to come here for $7 an hour, would love to and would come immediately if they could.

I was in South America recently. They had a poll in Nicaragua that said 60 percent of the people in Nicaragua said they would come to the United States if they could. I heard there was one in Peru where 70 percent of the people said they would come here if they could. What about all the other countries, many of them poorer? Many of them would have an even greater economic advantage to come to America than those people coming from Peru.

Obviously, more people desire to come than can come.

They would ask: I am sure you guys have talked about this as you dealt with comprehensive immigration reform; what did you all decide?

My colleagues, we never discuss this issue. We simply expand the existing program that this Government has that has failed and only 20 percent are given preference. We did add a program to give a certain number of higher educated people the right to come, but our calculations indicate that still only about 20 percent of the people who will be coming under the bill we passed will come on under a merit- based system. Canada has over 60 percent come based on merit. New Zealand I think is even higher than that.

What we want to do, of course, is select people who have a chance to be productive, who are going to be successful, who can benefit from the American dream. It is so within our grasp. I actually have come to believe and am excited about the concept that we actually could do comprehensive reform. We can fix our borders. We absolutely can. We have already made progress. We are reaching a point where we could create a lawful system at our borders.

In addition to that, we can confront the very tough choices about how to deal with people who are here illegally. And finally, we need to develop a system for the future flow of immigrants into America.

I believe the columnist Charles Krauthammer said we should do like the National Football League does. We ought to look around the world at the millions of people who would like to come to the United States and pick the very best draft choices we can pick, pick the ones who will help America be a winning team. It will allow people to come into this country who are most likely to be successful, who speak our language, who want to be a part of this Nation and contribute to it, who have proven capabilities that means they can take jobs and be successful at them and can assimilate themselves easily into the structure of our Government.

It is exciting to think that possibility is out there. Yes, we have been talking about the fence and, yes, the fence can be seen as sort of a grim enforcement question, but it is one part of the overall effort that we are participating in at this point to create a new system of immigration, comprehensively different than we have ever had before, one that serves our national interest, one that selects the people who want to come here based on their ability to succeed in our country and be successful and be harmonious and be able to take advantage of the great opportunities this Nation provides.

It is so exciting to me, but we are going to have to let go of the bill that got through this Senate and that the House of Representatives would not even look at. The bill was nothing more than a rehash of current law, plus amnesty. It was a very, very, very bad piece of legislation. A lot of people voted against it, but it passed in this body. The House would not talk about it.

If we would take our blinders off and if we would go back and think clearly about how our Nation should do immigration and talk to one another, I believe we can make more progress than people realize, and the American people could be proud of our system.

I asked the people in Canada, and I asked the people in Australia: How do people feel about this? Are they happy with it? Yes, they are proud of it.

I said: What do you think about us talking about your program?

They said: We are proud you are looking at our program. We think it works. It is a compliment to us that you think there may be some value in it.

I don't know why we never talked about that. We never had a single hearing in which the Canadians or Australians were asked to testify. These are countries that believe in the rule of law. Both of them say they have a high degree of enforcement. Yes, there are people who abuse the law, but they have a legal system and it works.

Canada has workers who come and work for 8 months, and they go back home to their families. They can work 6 months; they can work 4 months. That is a temporary guest worker program. Then they have an asylum program where they take a certain number of people, like we have always done, who have been persecuted and oppressed. We will continue to do that. That is not a merit-based system. That is a system where we do it for humanitarian reasons.

Fundamentally, the principle of our Nation, as we develop a new immigration policy, should be to serve our national interests. I believe we have that within our grasp.

This step of building border barriers is important for two reasons: One, it is critical to creating a lawful system. No. 2, it is critical to establishing credibility with the American people because they rightly doubt our commitment, based on history, to do the right thing about immigration. They doubt that we are committed to doing the right thing. This is a good step to show them that we are, and then I think as we talk about some of these more difficult issues, we can have some credibility with our people when we ask them to make some tough decisions about how to handle immigration in the future.

Mr. President, I thank you for the opportunity to share these thoughts.

Mr. President, I rise to compliment the distinguished chairman and ranking member of the Armed Services Committee for their work in bringing forth the National Defense Authorization Act for fiscal year 2007 through conference. This Act supports our Armed Forces during this critical period in our Nation's history.

In particular, I would like to note the House and Senate conferees full support for the administration's missile defense activities. The conference report before us fully funds the President's request for missile defense activities--reflecting strong confidence in and support for the current program.

The recommendations of the conferees with respect to missile defense follow very closely the actions taken in the national Defense authorization bill for fiscal year 2007--as passed by the full Senate earlier this year.

Notably, the conference report reflects the consensus view of the Senate and House that the Department of Defense must accord a priority to those near-term missile defense capabilities that are now beginning to provide a measure of protection for the American people, our deployed forces, and our friends and allies.

The need to emphasize near-term missile defense capabilities was brought home to many of us by the fourth of July ballistic missile launches by North Korea, where six missiles of short-, medium-, and long-range were tested.

Similarly, I just returned from the Ballistic Defense Annual Conference in London where over 900 delegates from over 20 nations discussed near and long term missile requirements in Asia and Europe. Among the key issues was the 3rd site requirement in Europe--a site designed to protect the United States and our NATO allies; a site which will provide an additional mix of options, both military and diplomatic to us and our NATO partners as the specter of missile blackmail increases.

On Independence Day, for the first time ever, Americans witnessed their country activate a missile defense system to protect our homeland against long-range ballistic missiles. This was certainly an epiphany for some and a wake up call for friends and foes alike.

Missile defense has thus become part of the diplomatic and military tool set available to our President and other senior policymakers.

Some critics of missile defense questioned whether the ground-based midcourse defense system would be able to intercept a long-range ballistic missile fired by North Korea.

Lieutenant General Obering, Director of the Missile Defense Agency, expressed confidence that the ground-based midcourse defense, GMD, system would be able to address a limited threat posed by North Korea.

He said that while the entire system had not undergone the full comprehensive testing regime he has planned, General Obering flatly stated he believed the system would, if need be, work to knock down a North Korean missile.

The successful intercept test of a long-range ballistic missile on September 1 confirms General Obering's assessment that the current GMD system has the capability, though not fully developed and tested, to defend America.

Both of these recent tests--the North Korean launches of July and our GMD test earlier this month--confirm, more broadly, the wisdom of the decision by President Bush in 2002 to begin deployment of an initial set of missile defense capabilities.

In less than 2 years, we have laid the infrastructure in Fort Greely, Alaska, and elsewhere so that this country at last is ready to defend itself against long-range ballistic missiles fired against our homeland.

The successful intercept of a long-range ballistic missile target on September 1 was the most operationally realistic test for the ground- based midcourse defense system conducted to date.

It included an operationally configured interceptor, an operational radar, and operational crews.

Critics continue to highlight reports of earlier unsuccessful missile defense testing, but the truth is that since 2001, we have had 23 successful hit-to-kill intercepts against all ranges of ballistic missiles, from the shortrange to the longrange.

In the past 90 days alone, we have conducted four successful engagements of short-, medium-, and long-range ballistic missile targets--using Aegis BMD, THAAD, PAC-3, and GMD. I will submit for the Record a letter from the Under Secretary of Defense for Acquisition, Technology and Logistics Kenneth J. Kreig to Congressman Ike Skelton on September 19, 2006, which discusses ground-based midcourse defense system testing. I think the letter is illustrative of the points I made here regarding our efforts to bring a robust missile defense system on line.

While more testing is necessary and planned to ensure confidence in the effectiveness of the defenses we field, we should take comfort in the knowledge that we have demonstrated fully that we can engage ballistic missile targets of all ranges.

Some editorial writers also like to remind us that the budget request for missile defense is close to $10 billion per year. While this is indeed a significant sum, we should bear in mind that this funding figure reflects research, development and fielding not for a single missile defense system, but for a number of missile defense capabilities based on land, on ships, on aircraft, and in space.

These include Patriot PAC-3, terminal high altitude area defense system, THAAD, ship-based Aegis BMD, the ground-based midcourse defense system, the airborne laser, the kinetic energy interceptor, and a host of sensors and the command and control links necessary to tie all these elements together.

In conclusion, I thank the conferees for fully supporting the administration's missile defense program and note the consensus within Congress to get on with the fielding of missile defense capabilities that are now demonstrating testing success and providing a measure of protection for our homeland and deployed forces.

This is a consensus that stretches back at least as far as the National Missile Defense Act of 1999, when Congress stated that:

it is the policy of the U.S. to deploy as soon as is

technologically possible an effective National Missile

Defense system capable of defending the territory of the

United States against limited ballistic missile attack. . . .

Those of us who supported this legislation--indeed all of us in Congress--should be gratified to see how far we come in such a short time.

Mr. President, I ask unanimous consent that the letter to which I referred be printed in the Record.

Madam President, I will be pleased to do so.

Madam President, if the chairman would approve, I would ask for 3 minutes.

Madam President, habeas corpus--the right to have your complaints heard while in custody--is a part of our Constitution. But we have to remember habeas corpus did not mean everything in the whole world when it was adopted. So what did ``habeas'' mean? What does it mean today and at the time it was adopted? It was never, ever, ever, ever intended or imagined that during the War of 1812, if British soldiers were captured burning the Capitol of the United States--as they did--that they would have been given habeas corpus rights. It was never thought to be. Habeas corpus was applied to citizens, really, at that time. I believe that is so plain as to be without dispute.

So to say: Habeas corpus, what does it mean? What did those words mean when the people ratified it? They did not intend to provide it to those who were attacking the United States of America. We provide special protections for prisoners of war who lawfully conduct a war that might be against the United States. We give them great protections. But unlawful combatants, the kind we are dealing with today, have never been given the full protections of the Geneva Conventions.

Second, my time is limited, and I have been so impressed with the debate that has gone on with Senators Kyl and Cornyn and Graham, and I associate myself generally with those remarks, but I want to recall that in a spate of an effort to appease critics and those who had ``vague concerns,'' not too many years ago, this Congress passed legislation that said that CIA-gathered information could not be shared with the FBI. We passed a law in this Congress to appease the left in America, the critics of our efforts against communism, primarily. And we have put a wall between the CIA and FBI.

So that was politically good. Everybody must have been happy about that. I was not in the Senate then. Then they complained that the CIA was out talking with people who had criminal records who may have been involved in violence, and this was somehow making our CIA complicitous in dealing with dangerous people, and we banned that. We passed a statute that eliminated that. And everybody felt real good that we had done something special.

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

After 9/11, we realized both of those were errors of the heart perhaps, but of the brain. And so what happened? We reversed both of them. We reversed them both. And we need to be sure that the legislation we are dealing with today does not create a long-term battle with the courts over everybody who is being detained. That is a function of the military and the executive branch to conduct a war.

Madam President, I yield the floor.

Mr. FEINGOLD addressed the Chair.

Mr. President, I would like to make a few comments about section 7 of the bill that is before us today. This section makes a number of improvements to the Detainee Treatment Act, which was passed by the Congress and signed into law on December 30 of last year. First, section 7 will fulfill one of the original objectives of the DTA: to get the lawyers out of Guantanamo Bay. As my colleague Senator Graham has noted, these lawyers have even bragged about the fact that their presence and activities at Guantanamo have made it harder for the military to do its job. Mr. Michael Ratner, the director of the Center for Constitutional Rights, which coordinated much of the detainee habeas litigation, had this to say about his activities to a magazine:

The litigation is brutal for [the United States.] It's

huge. We have over one hundred lawyers now from big and small

firms working to represent the detainees. Every time an

attorney goes down there, it makes it that much harder [for

the U.S. military] to do what they're doing. You can't run an

interrogation . . . with attorneys. What are they going to do

now that we're getting court orders to get more lawyers down

there?

This is what Congress thought that it was putting an end to when it enacted the DTA in 2005. That act provided that ``no court, justice, or judge shall have jurisdiction to hear or consider'' claims filed by Guantanamo detainees, except under the review standards created by that Act. The DTA was made effective immediately upon the date of its enactment. And as Justice Scalia noted in his Hamdan v. Rumsfeld dissenting opinion, the DTA's jurisdictional removal made no exception for lawsuits that were pending when the statute was enacted. Justice Scalia also pointed out that ``[a]n ancient and unbroken line of authority attests that statutes ousting jurisdiction unambiguously apply to cases pending at their effective date.'' He also noted that up until the Hamdan decision, ``one cannot cite a single case in the history of Anglo-American law . . . in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation.''

The Hamdan majority, on the other hand, found that the Supreme Court's

precedents governing jurisdictional statutes were trumped in that case by a legislative intent to preserve the pending lawsuits. This congressional intent, the majority concluded, was manifested in minor changes that had been made to the language of the bill and, most expressly, in statements made by Senators regarding the intended effect of the bill. As Senator Graham has explained in detail in remarks in the Congressional Record on August 3, at 152 Cong. Rec. S8779, it appears that the Supreme Court was misled about the legislative history of the DTA by the lawyers for Hamdan. Those lawyers misrepresented the nature of the statements made in the Senate and caused the court to believe that Congress had an intent other than that reflected in the text of the statute. It certainly was not my intent, when I voted for the DTA, to exempt all of the pending Guantanamo lawsuits from the provisions of that act.

Section 7 of the Military Commissions Act fixes this feature of the DTA and ensures that there is no possibility of confusion in the future. Subsection (b) provides that the bill's revised litigation bar ``shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.'' I don't see how there could be any confusion as to the effect of this act on the pending Guantanamo litigation. The MCA's jurisdictional bar applies to that litigation ``without exception.''

The new bill also bars all litigation by anyone found to have been properly detained as an enemy combatant, regardless of whether the detainee has been through the DC Circuit under the DTA or has been through a Combatant Status Review Tribunal hearing. The previous version of this bar, in the DTA, allowed detainees to bring conditions- of-confinement lawsuits after their release if their detention was not reviewed by the DC Circuit. Obviously, the Government could not force the detainee to appeal, and there are some who were released before CSRT hearings were instituted. The new bill states that as long as the military decides that it was appropriate to take the individual into custody as an enemy combatant, as a security risk in relation to a war, that person cannot turn around and sue our military after he is released. It should not be held against our soldiers that they take someone into custody, believing in good faith that he appears to be connected to hostilities against the United States, and then determine that the individual is not an enemy combatant and release the person. The fact of release should not be an invitation to litigation, so long as the military finds that it was appropriate to take the individual into custody in the first place.

The biggest change that the MCA makes to section 2241(e) is that the new law applies globally, rather than just to Guantanamo detainees. We are legislating through this law for future generations, creating a system that will operate not only throughout this war, but for future wars in which our Nation fights. In the future, we may again find ourselves involved in an armed conflict in which we capture large numbers of enemy soldiers. It is not unlikely that the safest and most secure place to hold those soldiers will be inside the United States. The fact that we hold those enemy soldiers in this country should not be an invitation for each of them to sue our Government. We held very large numbers of enemy soldiers in this country during World War II. They did not sue our Government seeking release. The Rasul decision would seem to have required that enemy combatants held in this country during wartime can sue. If that court allowed enemy combatants held in Cuba to sue, it is inevitable that those held inside this country would have been allowed to sue as well. That is simply not acceptable. It would make it very difficult to fight a major war in the future if every enemy war prisoner detained inside this country could sue our military. Through section 7 of the MCA, we not only solve our current problems with Guantanamo, but we plan for future conflicts as well. We ensure that, if need be, we can again hold enemy soldiers in prison camps inside our country if we need to, without becoming embroiled in a tempest of litigation.

I imagine that, now that Congress has clearly shut off access to habeas lawsuits, the lawyers suing on behalf of the detainees will shift their efforts toward arguing for an expansive interpretation of the judicial review allowed under the DTA. Paragraphs 2 and 3 of section 1005(e) of the DTA allow the DC Circuit to review a CSRT enemy combatant determination. The Government has provided a CSRT hearing to every detainee held at Guantanamo, with the likely exception of those transferred there this month, so all of those detainees will now be allowed to seek DTA review in the DC Circuit. Paragraphs 2 and 3 allow the DC Circuit to ask whether the military applied its own standards and procedures for CSRTs to the detainee, and they allow the court to ask whether those standards are constitutional and are consistent with nontreaty Federal law. I think that those standards speak for themselves, that they clearly allow only a very limited review. In particular, they do not allow the courts to second-guess the military's evidentiary findings. The courts simply are not in a position, they do not have the expertise, to judge whether particular evidence suggests that an individual is an enemy combatant.

I would like to note here that this is the consensus view of the DTA at this time, at least for now. I have no doubt that in the future, lawyers will argue that these standards invite the court to reweigh the evidence, to take in evidence outside of the CSRT record, and to decide if the military was right about its factual judgment. At this time, however, both proponents and opponents of section 7 of the MCA seem to agree on what kind of review it will allow. Earlier today, for example, I heard Senator Specter, who opposes section 7, criticize the paragraph 2 and 3 review standards on the Senate floor. He said, ``the statute provides that the Combatant Status Review Tribunal may be reviewed by the Court of Appeals for the District of Columbia only to the extent that it was--the ruling was consistent with the standards and procedures specified by the Secretary of Defense. Now, to comply with the standards and procedures determined by the Secretary of Defense does not mean--excludes on its face--a factual determination as to what happens to the detainees.''

I have also come into possession of a so-called fact sheet on the DTA review standards that is being distributed on Capitol Hill by Human Rights First, a group that is lobbying Senators to oppose the MCA and to support the Specter amendment that was defeated earlier today. This fact sheet is titled, ``The Limited Review Allowed Under the DTA is No Substitute for Habeas.'' Here is what the Human Rights First fact sheet says:

The DTA restricts the court to determining whether the

prior CSRTs followed their own procedures.

* * * * *

It has been suggested that the court of appeals, in

reviewing the CSRT decisions, can fix the problem simply by

choosing to review the evidence itself. But that is simply

not the way the statute reads. The government has taken the

firm position in Bismullah that no review even of

``significant exculpatory evidence'' is permitted under the

DTA. If Congress believes that the courts should be allowed

to review the evidence--and they clearly should be--then it

should change the statute to say so. It is no solution to

hope that the courts will ignore the actual statutory

language and rewrite the statute to correct the deficiency.

There you have it. Senators have been told in floor debate by the chairman of the Judiciary Committee that the DTA ``excludes on its face'' any factual determination with regard to the Guantanamo detainees. The groups lobbying Senators with regard to the MCA have pointed out that having courts make their own factual determinations, to judge the sufficiency of the evidence behind the military's findings, ``is simply not the way the statute reads.'' We are informed that the Justice Department has taken the ``firm position'' that no evidentiary review is permitted under the DTA. And we are told that if we disagree with this system, if we think that ``the courts should be allowed to review the evidence,'' then we ``should change the statute to say so.'' The Senate is clearly on notice as to how the DTA review

will work, what the statute says on its face, how the Justice Department has construed that statute. By rejecting the Specter amendment earlier today, and by passing the MCA later today, the Senate makes clear that it does not disagree with the Justice Department and does not want to change this system.

I will close my remarks by quoting at length from the testimony of U.S. Attorney General William Barr, who spoke on the matters addressed by this legislation before the Judiciary Committee on June 15, 2005. Mr. Barr's testimony informs our understanding of the history, law, and practical reality underlying the DTA and the MCA. I would commend his statement to anyone seeking to understand these statutes and the complex relationship between the President's war-making power and the judiciary. This relationship is superficially similar to, but is fundamentally different from, the judiciary's oversight of the civilian criminal justice system. I particularly found to be true Mr. Barr's emphasis that the proper role of the courts in this area is not accurately described as ``deference'' to military decisions because deference implies that the ultimate decisions still lie with the courts. As Mr. Barr notes, ``the point here is that the ultimate substantive decision rests with the President and that the courts have no authority to substitute their judgments for that of the President.''

Here is an extended excerpt from Attorney General Barr's testimony regarding the detention of alien enemy combatants:

The determination that a particular foreign person seized

on the battlefield is an enemy combatant has always been

recognized as a matter committed to the sound judgment of the

Commander in Chief and his military forces. There has never

been a requirement that our military engage in evidentiary

proceedings to establish that each individual captured is, in

fact, an enemy combatant. Nevertheless, in the case of the

detainees at Guantanamo, the Deputy Secretary of Defense and

the Secretary of the Navy have established Combatant Status

Review Tribunals (``CSRTs'') to permit each detainee a fact-

based review of whether they are properly classified as enemy

combatants and an opportunity to contest such designation.

As to the detention of enemy combatants, World War II

provides a dramatic example. During that war, we held

hundreds of thousands of German and Italian prisoners in

detention camps within the United States. These foreign

prisoners were not charged with anything; they were not

entitled to lawyers; they were not given access to U.S.

courts; and the American military was not required to

engage in evidentiary proceedings to establish that each

was a combatant. They were held until victory was

achieved, at which time they were repatriated. The

detainees at Guantanamo are being held under the same

principles, except, unlike the Germans and Italians, they

are actually being afforded an opportunity to contest

their designation as enemy combatants.

Second, once hostile forces are captured, the subsidiary

question arises whether they belonged to an armed force

covered by the protections of the Geneva Convention and hence

entitled to POW status? If the answer is yes, then the

captives are held as prisoners of war entitled to be treated

in accord with the various requirements of the Convention. If

the answer is no, then the captives are held under humane

conditions according to the common law of war, though not

covered by the various requirements of the Convention. The

threshold determination in deciding whether the Convention

applies is a ``group'' decision, not an individualized

decision. The question is whether the military formation to

which the detainee belonged was covered by the Convention.

This requires that the military force be that of a signatory

power and that it also comply with the basic requirements of

Article 4 of the Treaty, e.g., the militia must wear

distinguishing uniforms, retain a military command structure,

and so forth. Here, the President determined that neither al-

Qaeda nor Taliban forces qualified under the Treaty.

The third kind of action we are taking goes beyond simply

holding an individual as an enemy combatant. It applies so

far only to a subset of the detainees and is punitive in

nature. In some cases, we are taking the further step of

charging an individual with violations of the laws of war.

This involves individualized findings of guilt. Throughout

our history we have used military tribunals to try enemy

forces accused of engaging in war crimes. Shortly after the

attacks of 9/11, the President established military

commissions to address war crimes committed by members of al-

Qaeda and their Taliban supporters.

Again, our experience in World War II provides a useful

analog. While the vast majority of Axis prisoners were simply

held as enemy combatants, military commissions were convened

at various times during the war, and in its immediate

aftermath, to try particular Axis prisoners for war crimes.

One notorious example was the massacre of American troops at

Malmedy during the Battle of the Bulge. The German troops

responsible for these violations were tried before military

commissions.

Let me turn to address some of the challenges being made to

the way we are proceeding with these al-Qaeda and Taliban

detainees.

I. The Determination That Foreign Persons Are Enemy Combatants

The Guantanamo detainees' status as enemy combatants has

been reviewed and re-reviewed within the Executive Branch and

the military command structure. Nevertheless, the argument is

being advanced that foreign persons captured by American

forces on the battlefield have a Due Process right under the

Fifth Amendment to an evidentiary hearing to fully litigate

whether they are, in fact, enemy combatants. In over 225

years of American military history, there is simply no

precedent for this claim.

The easy and short answer to this claim is that it has

been, as a practical matter, mooted by the military's

voluntary use of the CSRT process, which gives each detainee

the opportunity to contest his status as an enemy combatant.

As discussed below, those procedures are clearly not required

by the Constitution. Rather they were adopted by the military

as a prudential matter.

Nonetheless, those procedures would plainly satisfy any

conceivable due process standard that could be found to

apply. In its recent Hamdi decision, the Supreme Court set

forth the due process standards that would apply to the

detention of an American citizen as an enemy combatant. The

CSRT process was modeled after the Hamdi provisions and thus

provides at least the same level of protection to foreign

detainees as the Supreme Court said would be sufficient to

detain an American citizen as an enemy combatant. Obviously,

if these procedures are sufficient for American citizens,

they are more than enough for foreign detainees who have no

colorable claim to due process rights.

Moreover, most of the guarantees embodied in the CSRT

parallel and even surpass the rights guaranteed to American

citizens who wish to challenge their classification as enemy

combatants. The Supreme Court has indicated that hearings

conducted to determine a detainee's prisoner-of-war status,

pursuant to the Geneva Convention, could satisfy the core

procedural guarantees owed to an American citizen. In certain

respects, the protocols established in the CSRTs closely

resemble a status hearing, as both allow all detainees to

attend open proceedings, to use an interpreter, to call and

question witnesses, and to testify or not testify before the

panel. Furthermore, the United States has voluntarily given

all detainees rights that are not found in any prisoner-of-

war status hearing, including procedures to ensure the

independence of panel members and the right to a personal

representative to help the detainee prepare his case.

Nevertheless, there appear to be courts and critics who

continue to claim that the Due Process Clause applies and

that the CSRT process does not go far enough. I believe these

assertions are frivolous.

I am aware of no legal precedent that supports the

proposition that foreign persons confronted by U.S. troops in

the zone of battle have Fifth Amendment rights that they can

assert against the American troops. On the contrary, there

are at least three reasons why the Fifth Amendment has no

applicability to such a situation. First, as the Supreme

Court has consistently held, the Fifth Amendment does not

have extra-territorial application to foreign persons outside

the United States. As Justice Kennedy has observed, ``[T]he

Constitution does not create, nor do general principles of

law create, any juridical relation between our country and

some undefined, limitless class of non-citizens who are

beyond our territory.'' Moreover, as far as I am aware, prior

to their capture, none of the detainees had taken any

voluntary act to place themselves under the protection of our

laws; their only connection with the United States is that

they confronted U.S. troops on the battlefield. And finally,

the nature of the power being used against these individuals

is not the domestic law enforcement power--we are not seeking

to subject these individuals to the obligations and sanctions

of our domestic laws--rather, we are waging war against them

as foreign enemies, a context in which the concept of Due

Process is inapposite.

In society today, we see a tendency to impose the judicial

model on virtually every field of decision-making. The notion

is that the propriety of any decision can be judged by

determining whether it satisfies some objective standard of

proof and that such a judgment must be made by a ``neutral''

arbiter based on an adversarial evidentiary hearing. What we

are seeing today is an extreme manifestation of this--an

effort to take the judicial rules and standard applicable in

the domestic law enforcement context and extend them to the

fighting of wars. In my view, nothing could be more farcical,

or more dangerous.

These efforts flow from a fundamental error--confusion

between two very distinct constitutional realms. In the

domestic realm of law enforcement, the government's role is

disciplinary--sanctioning an errant member of society for

transgressing the internal

rules of the body politic. The Framers recognized that in the

name of maintaining domestic tranquility an overzealous

government could oppress the very body politic it is meant to

protect. The government itself could become an oppressor of

``the people.''

Thus our Constitution makes the fundamental decision to

sacrifice efficiency in the realm of law enforcement by

guaranteeing that no punishment can be meted out in the

absence of virtual certainty of individual guilt. Both the

original Constitution and the Bill of Rights contain a number

of specific constraints on the Executive's law enforcement

powers, many of which expressly provide for a judicial role

as a neutral arbiter or ``check'' on executive power. In this

realm, the Executive's subjective judgments are irrelevant;

it must gather and present objective evidence of guilt

satisfying specific constitutional standards at each stage

of a criminal proceeding. The underlying premise in this

realm is that it is better for society to suffer the cost

of the guilty going free than mistakenly to deprive an

innocent person of life or liberty. The situation is

entirely different in armed conflict where the entire

nation faces an external threat. In armed conflict, the

body politic is not using its domestic disciplinary powers

to sanction an errant member, rather it is exercising its

national defense powers to neutralize the external threat

and preserve the very foundation of all our civil

liberties. Here the Constitution is not concerned with

handicapping the government to preserve other values.

Rather it is designed to maximize the government's

efficiency to achieve victory--even at the cost of

``collateral damage'' that would be unacceptable in the

domestic realm.

It seems to me that the kinds of military decisions at

issue here--namely, what and who poses a threat to our

military operations--are quintessentially Executive in

nature. They are not amenable to the type of process we

employ in the domestic law enforcement arena. They cannot be

reduced to neat legal formulas, purely objective tests and

evidentiary standards. They necessarily require the exercise

of prudential judgment and the weighing of risks. This is one

of the reasons why the Constitution vests ultimate military

decision-making in the President as Commander-in-Chief. If

the concept of Commander-in-Chief means anything, it must

mean that the office holds the final authority to direct how,

and against whom, military power is to be applied to achieve

the military and political objectives of the campaign.

I am not speaking here of ``deference'' to Presidential

decisions. In some contexts, courts are fond of saying that

they ``owe deference'' to some Executive decisions. But this

suggests that the court has the ultimate decision-making

authority and is only giving weight to the judgment of the

Executive. This is not a question of deference--the point

here is that the ultimate substantive decision rests with the

President and that courts have no authority to substitute

their judgments for that of the President.

The Constitution's grant of ``Commander-in-Chief'' power

must, at its core, mean the plenary authority to direct

military force against persons the Commander judges as a

threat to the safety of our forces, the safety of our

homeland, or the ultimate military and political objectives

of the conflict. At the heart of these kinds of military

decisions is the judgment of what constitutes a threat or

potential threat and what level of coercive force should be

employed to deal with these dangers. These decisions cannot

be reduced to tidy evidentiary standards, some predicate

threshold, that must be satisfied as a condition of the

President ordering the use of military force against a

particular individual. What would that standard be?

Reasonable suspicion, probable cause, substantial evidence,

preponderance of the evidence, or beyond a reasonable doubt?

Does anyone really believe that the Constitution prohibits

the President from using coercive military force against a

foreign person--detaining him--unless he can satisfy a

particular objective standard of evidentiary proof?

Let me posit a battlefield scenario. American troops are

pinned down by sniper fire from a village. As the troops

advance, they see two men running from a building from which

the troops believe they had received sniper fire. The troops

believe they are probably a sniper team. Is it really being

suggested that the Constitution vests these men with due

process rights as against the American soldiers? When do

these rights arise? If the troops shoot and kill them--i.e.,

deprive them of life--could it be a violation of due process?

Suppose they are wounded and it turns out they were not enemy

forces. Does this give rise to Bivens' Constitutional tort

actions for violation of due process? Alternatively, suppose

the fleeing men are captured and held as enemy combatants.

Does the due process clause really mean that they have to be

released unless the military can prove they were enemy

combatants? Does the Due Process Clause mean that the

American military must divert its energies and resources from

fighting the war and dedicate them to investigating the

claims of innocence of these two men?

This illustrates why military decisions are not susceptible

to judicial administration and supervision. There are simply

no judicially-manageable standards to either govern or

evaluate military operational judgments. Such decisions

inevitably involve the weighing of risks. One can easily

imagine situations in which there is an appreciable risk that

someone is an enemy combatant, but significant uncertainty

and not a preponderance of evidence. Nevertheless, the

circumstances may be such that the President makes a judgment

that prudence dictates treating such a person as hostile in

order to avoid an unacceptable risk to our military

operations. By their nature, these military judgments must

rest upon a broad range of information, opinion, prediction,

and even surmise. The President's assessment may include

reports from his military and diplomatic advisors, field

commanders, intelligence sources, or sometimes just the

opinion of frontline troops. He must decide what weight to

give each of these sources. He must evaluate risks in light

of the present state of the conflict and the overall military

and political objectives of the campaign.

Furthermore, extension of due process concepts from the

domestic prosecutive arena as a basis for judicial

supervision of our military operations in time of war would

not only be wholly unprecedented, but it would be

fundamentally incompatible with the power to wage war itself,

so altering and degrading that capacity as to negate the

Constitution's grant of that power to the President.

First, the imposition of such procedures would

fundamentally alter the character and mission of our combat

troops. To the extent that the decisions to detain persons

as enemy combatants are based in part on the circumstances

of the initial encounter on the battlefield, our frontline

troops will have to concern themselves with developing and

preserving evidence as to each individual they capture, at

the same time as they confront enemy forces in the field.

They would be diverted from their primary mission--the

rapid destruction of the enemy by all means at their

disposal--to taking notes on the conduct of particular

individuals in the field of battle. Like policeman, they

would also face the prospect of removal from the

battlefield to give evidence at post-hoc proceedings.

Nor would the harm stop there. Under this due process

theory, the military would have to take on the further burden

of detailed investigation of detainees' factual claims once

they are taken to the rear. Again, this would radically

change the nature of the military enterprise. To establish

the capacity to conduct individualized investigations and

adversarial hearings as to every detained combatant would

make the conduct of war--especially irregular warfare--vastly

more cumbersome and expensive. For every platoon of combat

troops, the United States would have to field three platoons

of lawyers, investigators, and paralegals. Such a result

would inject legal uncertainty into our military operations,

divert resources from winning the war into demonstrating the

individual ``fault'' of persons confronted in the field of

battle, and thereby uniquely disadvantage our military vis-a-

vis every other fighting force in the world.

Second, the introduction of an ultimate decision maker

outside of the normal chain of command, or altogether outside

the Executive Branch, would disrupt the unitary chain of

command and undermine the confidence of frontline troops in

their superior officers. The impartial tribunals could

literally overrule command decisions regarding battlefield

tactics and set free prisoners of war whom American soldiers

have risked or given their lives to capture. The effect of

such a prospect on military discipline and morale is

impossible to predict.

The Supreme Court's decision in Rasul v. Bush does not

undercut these long-standing principles. In Rasul, the

Supreme Court addressed a far narrower question--whether the

habeas statute applies extraterritorially--and expressly

refrained from addressing these settled constitutional

questions. The Court, in concluding that the habeas statute

reached aliens held at Guantanamo Bay, relied on the peculiar

language of the statute and the `` `extraordinary territorial

ambit' of the writ at common law.'' Of course, the

idiosyncrasies of the habeas statute do not have any impact

on judicial interpretation of the reach of the Fifth

Amendment or other substantive constitutional provisions.

Moreover, the Court's recognition in Rasul that the United

States exercises control, but ``not ultimate sovereignty''

over the leased Guantanamo Bay territory confirms the

inapplicability of the Fifth Amendment to aliens held there.

Nevertheless, even if Guantanamo Bay is somehow deemed

sovereign United States territory, the Fifth Amendment is

still inapplicable. The Supreme Court, in addition to the

requisite detention on sovereign United States territory,

demands that the aliens only ``receive constitutional

protections'' when they have also ``developed substantial

connections with this country.'' Thus, under the Court's

formulation, ``lawful but involuntary'' presence in the

United States ``is not of the sort to indicate any

substantial connection with our country'' sufficient to

trigger constitutional protections. The ``voluntary

connection'' necessary to trigger the Fifth Amendment's due

process guarantee is sorely lacking with respect to enemy

combatants.

Whatever else may be said, there can be no dispute that

these individuals did not arrive at Guantanamo Bay by free

choice. Captured enemy combatants that have been transported

to Guantanamo Bay for detention thus are not entitled to

Fifth Amendment due process rights. It should also be noted

that the Supreme Court's decision in Rasul was a statutory

ruling, not a constitutional

one. In other words, the Court concluded only that the

federal habeas statute confers jurisdiction on federal

district courts to hear claims brought by aliens detained at

Guantanamo Bay. The Court nowhere suggested that the

Constitution grants such aliens a right of access to American

courts.

An important consequence follows: Congress remains free to

restrict or even to eliminate entirely the ability of enemy

aliens at Guantanamo Bay to file habeas petitions. Congress

could consider enacting legislation that does so--either by

creating special procedural rules for enemy alien detainees,

by requiring any such habeas petitions to be filed in a

particular court, or by prohibiting enemy aliens from haling

military officials into court altogether.''

Mr. President, with the Military Commissions Act, the Senate today enacts Mr. Barr's third suggestion. We create a system that is consistent with our treaty obligations but that also is consistent with military tradition and the needs of our fighting forces in a time of war. It is a system that will serve this Nation well. I look forward to the act's passage and enactment.

Mr. President, we know that fencing works. It is a proven approach. The San Diego fence has been incredibly successful. The illegal entries have fallen from 500,000 to 100,000. Crime in San Diego County, the whole county, dropped 56 percent. It is an absolutely successful experiment and demonstration of this working.

The chief of Border Patrol told one of the House hearings that it multiplies the capacity of their agents to be effective. There is no way individual agents can run up and down the border without some barriers in these high-traffic areas.

Secretary Chertoff asked us explicitly for 800 miles of barriers and fencing. He asked for that. We voted for it in May. We voted 83 to 16 in favor of the fence, and in August we voted 93 to 3 in favor of funding. But we haven't gotten there yet.

This bill is the kind of bill which can allow us to go forward and complete what the American people would like to see, and maybe then we can have some credibility with the public and we can begin to deal with the very important, sensitive issues of comprehensive immigration reform which I favor. But I believe the present bill that came through the Senate did not meet the required standard. We can do much better.

We have voted for this. We voted for it at least three times to make it a reality. And then we will have some credibility with the American people after we do that and then begin to talk comprehensively about how to fix an absolutely broken immigration system.

I urge support of cloture.

Mr. President, I thank Senator Enzi, our chairman, for his great leadership and persuasive remarks earlier on this important issue.

My good friend, Dr. Coburn, has personally treated people with AIDS and has dealt with women who have had babies with AIDS. It is a matter deeply important to him.

Senator Burr is a force in our committee. He works extremely hard. His remarks go to the core of what we are all about here. He explained it in great detail. I am so appreciative of that.

I will just say a few things that I believe are important.

Senator Dayton, I must tell you that my good friend Senator Enzi is a very fair man. If the chairman were asked, Chairman Enzi, why should New York give up anything? Why shouldn't they insist on keeping the special position they have?

Let me ask this question: How did New York get that special position? How did it happen? They came to the Congress a number of years ago. They said: We have an extraordinary problem in New York. Our problem is great. We have this growing problem with AIDS, and we need extra money.

The Nation said: We believe you are hurting, New York. We believe you have a special problem, and we will give you special money, extra money. You will get more than the rest of the country because it appears that the disease is more centered there and is spreading most rapidly there.

That was a good and decent thing for the country to do. It made sense that this bill passed. I am not disputing that. But I am telling you right now, as a representative of the people of the State of Alabama, having talked to the leadership that deals with AIDS in my State, they are really upset. They cannot imagine how it is possible that now my State and the entire Southern region is showing a faster increase in AIDS than any other region of the country--the South has the highest rate of increase of any region in the

country. I will show this chart. It is actually beginning to surge here. It is a crisis in our State. Even this new bill, as Chairman Enzi said, still provides more money per patient for a big-city State than we would get in Alabama, even though our AIDS rate increase is higher by far than the Northeast or other areas.

How can that be justified? I know the people of New York say that New York City deserves more money to protect itself from terrorists because terrorists are more likely to attack New York. They complain about this. But the truth is, they get a lot more money in New York for that protection than the rest of the country gets. I think current legislation will give them even more for it. Why? Because the terrorist threat is more real. Well, the AIDS threat is real here; more real in Alabama. And it is falling on poor people and it is falling on the African-American community and it is falling hardest on African- American women.

Senator Burr said that, and that is an absolute fact. The numbers bear it out without any doubt whatsoever. I believe a fair proposal is on the floor of the Senate. I believe if we had any pretense of passing legislation that deals fairly and objectively with the deadly disease of AIDS, we need to pass this legislation. It is absolutely not right to continue this disproportionate shifting of revenue from States all over America to big cities that are getting almost twice as much in some instances as the poorer States and the rural States. It is not right to continue that. We need to fix that.

The chairman didn't overreact. Maybe next time, if we can't get this bill passed, we ought to pass a bill that makes it completely level across the board and not leave some of these States with a continued advantage. They have had an advantage for years and years now. I suggest that we need to work on that and work on it hard.

Let me point out again the yellow line which represents the increase in the South--far higher than the Northeast and the West. That is where the big cities are that are getting the biggest amount of money per patient, not just more money total but more money per patient.

We have all read reports of abuses of those moneys and some of the worst things they are doing in some of those centers. Senator Coburn mentioned the great conferences they go to where they have rock concerts and spend this money that they claim they do not have, I guess, to treat people who are sick.

Let's look at the next chart just to make one more point about what this legislation that Chairman Enzi and the committee hammered out is trying to do. There are 1.185 million Americans living with HIV/AIDS, and 250,000 of them do not know they are infected. One of the greatest things we can do is to make sure that people who are infected with HIV/ AIDS know it as soon as possible. Treatment will commence immediately. It can mean years of extra life, years of extra healthy ability to live a normal life if we diagnose them early.

This bill provides new moves toward early diagnosis, early detection, and early testing. It absolutely is the right thing to do.

I was in my home State talking to some of our AIDS people who work on a daily basis. They told me about a lady who came in pregnant, and they did a test on her. She was 7 months pregnant. She was positive for HIV. That was a tragedy, of course. But that child, given the right treatment, is almost certain to be born without AIDS because she was diagnosed as having it before the child was born. Had she not been diagnosed, there would have been a 50-50 chance that the child would have been born with AIDS. What a tragedy which was averted in that instance. They began to talk to her. They ended up talking to her boyfriend. He agreed to be tested. They found out that he was positive. He didn't know that. Had he known that, he would never have infected the lady. I am convinced of it. Most people are going to protect themselves and their partners if they know they have AIDS.

There are a lot of reasons for early detection. One is that it will help reduce the spread of AIDS because most people would not want their partners to be infected. And it would allow them to get on medication at the earliest possible time. So we made some real progress in that area. It can save lives and money in the long run.

I salute the chairman. How the Senator has time to work all the bills he is leading members on in the HELP committee, I do not know. It is a tremendous challenge and the Senator does it with good humor and consistent efforts to do right thing.

The Senator is exactly right on this important issue. I thank the Senator for his leadership. We must pass this reform. We must have equity in distribution of the money. It absolutely needs to show a shift of resources to the most threatened area of our country--that is the South, our poor, our African American community, and particularly, African American women.

I yield the floor.

Mr. President, the House and Senate have a piece of legislation more commonly known as the Fence bill, but it is really a bill to establish operational control of our borders through fencing and other means. It includes authorization for 700 specific miles fencing along the Mexican border and a study of the situation on the northern border. It is designed to help multiply the capacity of American Border Patrol agents to be effective in creating a lawful border instead of the unlawful border we have.

It passed the House with a strong bipartisan vote. They have had five formal hearings on the matter and have considered information from previous hearings. They had a number of field hearings in August and they actually talked to people in the region to find out what is going on.

The House has sent the Senate a bill they have worked on for some time and to which they have given a great deal of thought. It is very similar to the bill we passed in the Senate which authorized 870 total miles of physical infrastructure at the border.

Let me take a moment to discussion the history of the legislation in this Senate dealing with barriers at the border. I will discuss why the barriers are an important component--not all of what we need to do, but an essential component of what we need to do--to create a lawful system of immigration. But first let us talk about the votes we have had in the Senate.

On May 17, I offered an amendment that mandated the construction of 370 miles of fencing and 500 miles of vehicle barriers along the southwest border of the United States. That is a total of 870 miles of physical barriers. This is not a lot different from what the House is sending the Senate, some 700 or so miles of fencing. When we voted on my amendment, we discussed it at some length.

I did not know how we would vote. I didn't know how the vote would turn out. A number of Members said they were for fencing; a number of Members said they were against fencing. I argued that good fences make good neighbors. It clarifies where property lines are, what your rights are, and neighbors can get along pretty well. Leave them ambiguous, and people get in fusses.

At any rate, when we voted, the vote was 83 to 16 to approve my amendment mandating construction of this fence. That was part of the overall immigration bill. That immigration bill was fatally flawed. The truth is, it is not going to become law. We can all be thankful for that.

This amendment, though, was voted on 83 to 16. A lot of our colleagues say, I voted for an amendment to build a fence; I voted as one of the 83. But, we all are grownups, we know that legislation containing that amendment is not going to become law. So, now it is time to either put up or shut up about enforcement. It is time to either be honest with our constituents and say, I am not going to vote for a stand alone fence bill, or, yes, I believe a fence is an important component of border security and I will vote for this bill because it takes the first step.

So where did the Senate go after the first vote of 83 to 13? I suggest that strong vote indicated border fencing and barriers are a high priority of this Senate. This was a strong bipartisan vote, if people were voting with integrity, to build a fence.

We had a second vote. One of the things that is unusual about the Senate, to people who are not used to it, is

a vote to authorize a matter--a subject, a fence--is not the end of it. Before that construction can take place, the Congress has to vote again to appropriate the money to build it. It takes two votes. One vote can be a signal, but it does not have any reality until a second vote is a fact.

When the Department of Homeland Security appropriations bill hit the Senate, we were more than a little disappointed that even though the original vote was 83 to 16, when we come along with the Department of Homeland appropriations bill, what did we see? Thirty-nine miles of vehicle barriers only. This was most discouraging.

I urged my colleagues, if they were serious about the previous vote, we ought to have a vote to actually fund it. I offered an amendment that would actually have funded this fence at $1.8 billion which we think if we get someone to run it as it ought to be run and build it in a cost-effective way, it would be enough to meet that standard. I offered that amendment on July 13. It would have reduced a percent or two of funding for other appropriations in the bill, an across-the- board reduction, and we voted on it. Unfortunately, only 29 Senators voted to actually appropriate the money to do what they had already voted to do.

That was very discouraging to me. I talked about it, particularly the fact that if there is one area where the American people are most cynical about Congress, it is about their protestations they are doing everything they can do to create a lawful system of immigration when they are actually not. They are very cynical about that. They have every right to be. The American people have understood this issue for 30 years. No President, no Congress, has listened to them and done what actually needs to be done and could be done to create a lawful system of immigration. This was most troubling.

So we continued to study what could be done to get fencing built. On August 2 the Defense bill was in the Senate. The National Guard had been deployed to the border and was making some progress, assisting those at the border--not as much as some would like and would hope, but it has made a positive step. They have the capability of building some fencing and actually were already working on some fencing projects. Again, I offered an amendment on the floor to actually fund the fencing, this time through the Defense Department, through the National Guard. The amendment would have let them either build the fencing themselves, or manage private contractors who would build a fence.

When we voted on that amendment, perhaps after my colleagues had spent some time talking to their constituents, the vote to authorize $1.8 billion for funding passed 93 to 3. So we got 93 to 3. Now we are cooking. We have money, we have actually put up money to follow through on the fencing idea. I was very happy about that.

In the course of the conference on the Defense appropriations legislation that we won the amendment vote on, I was informed they were moving $1.8 billion from the Department of Defense bill over to Homeland Security bill which was also in their conference because that was the more appropriate vehicle to put funding to build a fence for Homeland Security. So, I was told that the Homeland Security Appropriators would handle it.

Now we are hearing that less money for the fence is going to be included in the conference report, that was included in my amendment. There was an article in the paper today, one of the Web sites of the AP, saying they agreed to $1.2 billion instead of $1.8 billion. That is a 30-percent reduction. We voted to fund a $1.8 billion one-time expenditure to build miles of fence and barriers. It is something that ought to be done at one time and it will save money in great amounts over the long term.

I am worried about that reduction in funding. Some have said the numbers may even be worse than that because those in charge of the process feel an obligation to fund other things related to Homeland Security and they may not even appropriate the full $1.2 billion for fencing construction. I hope that is not so. I think that would be unacceptable. That would be inconsistent with the votes we have had and would not make Congress look good. It would not be the kind of action worthy of a Senate that is attempting to gain the respect of the American people on the subject of immigration, a subject about which they have lost the respect of the American people and deserve to get back.

So the House passed a bill. They passed an authorization bill that mandates the fencing, very similar to what the Senate voted for, and is now before the Senate. A filibuster was suggested, indicated by the several procedural votes we have had to have on this bill. The majority leader had to file for cloture on the motion to proceed. That gives 30 hours of debate. Then 30 hours later, we voted on the motion to proceed and we did not see the filibuster continue. The vote was 94 to 0 to proceed to the Secure Fence Act. It took a lot of time, not much debate. I was one of the few Members who spoke. The 30 hours slowed down everything we were doing.

The people are saying, I am for a vote, I voted for cloture. Why did we have to have cloture? Why couldn't we move straight to the bill as we do time and time again in this Senate--although less and less, as time has gone by. We are in a slowdown mode. We are moving along now. We will have a vote, I thought today, on cloture on the bill. However, it looks as though that may be tomorrow. Then we will have another 30 hours of debate. Then we will have an opportunity or complaints about how many amendments can be offered or fall. Who knows where this will go?

There are some Members who like to claim they support barriers at the border, but when the chips are down, through legerdemain in this body, manage to create logjams and headaches so it will never become law if it appears that is their wish. I suspect we will have people who say they want to add amendments on comprehensive reform, on amnesty, on agriculture jobs or other issues that would kill this amendment if adopted. They want to try to offer those amendments. Or they are complaining that virtual fencing, some sort of a satellite, unmanned aerial vehicle, can do the same thing as a fence. That is not so. It can be an asset, but it cannot replace individual people apprehending people coming across the border illegally--not a virtual fence. How silly is that? They will say they do not favor the locations where the fencing is or they will say they favor fencing, but they really favor comprehensive reform and if we pass anything such as fencing, even though the American people want it, then the American people will not pass their version of amnesty or whatever they want to see in the form of comprehensive reform.

They are afraid the American people will get what they want, and if the American people get what they want in terms of increased enforcement, they may not be so interested in their ideas about how to reach final settlement on amnesty.

We will have two real votes on fencing this week: cloture on the underlying bill and final passage. We should be able to achieve cloture and final passage. It takes 60 votes, but we have had 80, 90 votes on this before. Without this authorization language, there will be no mandate that the fencing act will be constructed or in what manner it will be constructed.

So these votes are the real test this week--not the final test, but very critical steps in the process. The American people will want to watch and see if they agree with their Senators in how they vote. I note we will also have to have some more votes somewhere along the line that are also critical that deal with actual funding of the border barriers.

I see my colleague from Oklahoma is in the Chamber, my distinguished colleague on the Armed Services Committee, who chairs the Environment and Public Works Committee. I ask my colleague, do you have a time agreement to speak? What is your schedule?

All right. I will wrap up and be pleased to yield to the Senator. The Senator is going to ask unanimous consent to be recognized after I finish?

Mr. President, I will continue a couple more minutes.

Fencing works. We have a major problem. Last year, our Border Patrol

agents apprehended 1.12 million people along our border coming into our country unlawfully. Can you imagine that? Where we did build fencing along the San Diego border--only 14 miles, but it was one of the worst areas--that area was tremendously improved. Crime went down, drug dealing went down, violence went down, illegal immigration plummeted and property values went up.

But we have 1,800 miles along the border. This bill would not provide funding and authorization but for fencing about one-third of that distance.

I will share with my colleagues some of the debate in the House of Representatives recently, as they passed the very bill that is before us. Chairman Royce--he is from California--who chairs the International Terrorism and Nonproliferation Subcommittee talked about the difficulties they have had with a breach, a gap in the border fencing. He said this: It is called ``smugglers' gulch,'' a fence that runs from the foothills to the ocean through that small 3-mile breach. It has taken 8\1/2\ years to get the California Coastal Commission to go along with closing that fence in consultation--8\1/2\ years to get it done.

He talked about the problem of that gap. And he talked about the field hearings he had participated in. He said: We heard from witnesses, and we heard them express that border fencing was very effective. He quoted Darryl Griffen, who is the chief agent in San Diego for the Border Patrol--the chief agent. Mr. Griffen, referring to the fencing, said this: It is a great force multiplier. It expands our enforcement capacity. It allows us the discretion to redeploy agents to areas of vulnerability or risk. It is one component that certainly has been integral to everything we have accomplished here raising the level of security.

That is what the chief of the Border Patrol for San Diego said. So people will tell you fencing makes no difference, it is not important, it does not help. It is not so. Listen to the professionals. I know President Bush has been reluctant to support fencing, but this man works for President Bush. He testified, as has Secretary Chertoff, about the subject. Secretary of Homeland Security Chertoff supports the fence, the bill that we passed in the Senate. Indeed, it was passed on his recommendation, the details of it were.

Then Chairman Royce, in the House, who chairs the International Terrorism Subcommittee, said this about the dangerous people who are coming across the border: So we see people coming over the border illegally from Afghanistan, Angola, Jordan, Qatar, Pakistan, Yemen. And I will give you one example. Mohammed Karani is the brother of a commander of Hezbollah in south Lebanon. He came over the border in my State in the trunk of a car. He paid a coyote to get him across the border. He was later arrested in Dearborn, Michigan. He is serving 4\1/ 2\ years. He is a member of Hezbollah. He was in the process of securing funds and resources for Hezbollah in the United States.

He then goes on to say: Two border Governors have declared states of emergency over illegal immigration. Then one of the agents told him a personal story of stopping a man who had been trained in an Afghan training camp originally from Uzbekistan. This man injured the Border Patrol agent, actually bit his arm as he was trying to take him down. This agent told Chairman Royce one of his concerns was this was the second time the man had tried to come into the country after 9/11.

So I would say we are dealing with an important issue. I am glad to see from previous votes that the Senate is coming around to a uniform position on it. It is time for us now, as we wind up this session, to fulfill our obligation for actually making a law, legislation to authorize the building of the fence, and then, in the few days we have left, to come forward with legislation that will actually fund this requirement we authorize. Otherwise, we risk going home and even further arousing cynicism and irritation among the voters who have sent us here.

I believe we can get it done. I think we are moving in the right direction. I am optimistic. But there will be some around here who would like to see it fail in the last minute. Let's don't let that happen. Let's follow through, and let's be consistent with the wishes of the American people and the security of the United States.

Mr. President, I yield the floor.

Mr. President, if the Senator will yield, I think the Senator has provided great leadership on security on a number of issues. You may be talking about other issues as we go forward right now, but I know the Senator would agree that our borders do represent vulnerabilities, and fixing our borders is also an aspect of national security, as I read of Hezbollah people coming across and others who have dangerous reputations.

I also thank the Senator for his steadfast leadership and his clear thinking in regard to the fundamental issue that barriers do represent a critical part of what we need to do to have a lawful border.

Mr. President, I would like to make some remarks today about Alabama's 2006-2007 Teacher of the Year, Ms. Cameron McKinley. Ms. McKinley has been a technology specialist for the Hoover City School System since she left her successful career as a businesswoman in the marketing field over 10 years ago to pursue her dream of teaching. Within the Hoover City School System, Ms. McKinley has taught computer education, instructional technology, and summer technology camps.

Ms. McKinley, a magna cum laude graduate of the University of Alabama with a bachelor's degree in corporate finance/investment management and marketing, is a national board certified teacher.

I would like to commend Ms. McKinley's efforts on behalf of her students, and sincerely congratulate her for this very high honor. I appreciate her dedication to educate our children, as we know that an investment in our children is one of the most important investments that we can make as a nation.

Ms. McKinley's decision to change careers to give her life to our children is a wonderful act and it is made all the more remarkable for being selected as Teacher of the Year. This is, indeed, a heartwarming story. With Ms. McKinley's help, and the aid of other teachers like her, we will continue to raise up quality leaders that will serve our country and our children in the years to come.

Mr. President, I would like to make some comments on this legislation and ask that I be notified after 8 minutes.

Mr. President, we are indeed a nation of immigrants. We will always have immigrants coming to our country, and they have enriched our Nation in so many different ways. It is time for us, however, to recognize that the policies we have adopted as a Nation are not working; that the law that we as Americans respect so greatly is being made a mockery of; the system is in shambles, and the American people are very concerned about it--as they rightly should be. I believe public officials are coming to understand the gravity of the problem after the American people have led them at last to that event.

For the last 30 or 40 years, the American people have been right on this subject. They have asked for a lawful system of immigration. They have asked for a system of immigration that serves the interests of the United States of America. And they have expressed continual concern about the illegality that is ongoing. Frankly, the politicians and Government officials have not been worthy of the good and decent instincts and desires of the American people.

Finally, I think those voices are being heard today.

We want to talk about the House bill that is on the floor of the Senate today. We are asking that this legislation be considered by the Senate. The majority leader has had to file for cloture because apparently some in this body do not even want to consider this legislation. They do not want to talk about it, push it away through surreptitious legerdemain. They want to figure out a way to undermine whatever legislation has been passed and make sure nothing ever gets done. That has been the problem. I hate to say it. We have gone again and again, and we have promised we are going to do something and we tell the American people we are going to do this and we are going to do that. But they are not ignorant, they know we have not done anything, except for the last few months we began to take a few steps that had some significance. But for the last 40 years we have basically had a system driven by illegality that is not worthy of the American people, not worthy of our heritage of law, and it must end.

Let me tell you what happened in the Senate about the fencing issue. Five months ago, May 17, my colleagues, by a vote of 83 to 16, after talking to their constituents, I submit, approved my amendment to mandate the construction of at least 370 miles of fencing and 500 miles of vehicle barriers along the southwest border. That totals 870 miles of physical barriers, either a fence or a vehicle barrier. Admittedly, that was a strong vote in this body, indicating that fencing on the southern border is and should be a part of our plan to recapture a legal system of immigration in America. It remains one of our important priorities.

On August 2, my colleagues, this time, by a vote of 93 to 3, voted to fund the construction of those miles of fencing and barriers on the DOD appropriations bill as part of the National Guard effort at the border. Today we will vote again. I expect and hope that the Senate will have the votes for cloture so we can move forward with this bill and not have it obstructed from even being debated in the Senate. The miles of fencing contained in this bill are not that different from what the Senate had already voted for, 93 to 3 to fund this year.

The Senate has already voted to fund them, and we are moving forward. This bill simply requires--the House bill that has been passed by the other body--that more of those miles be fencing in designated areas.

I will make this point: We are not there yet. Just because we have had these votes, just because the House has voted for fencing, just because the Senate, by an overwhelming vote, has authorized fencing, we have not begun to construct that yet. We have to get the money, and we have to get a final bill. The amendment I offered--that passed 83 to 16--was part of the comprehensive immigration bill. That bill is not going to become law. That whole bill is not going to become law. So if we are going to commence now to build a barrier on the border, we need to pass this legislation that actually authorizes it. So don't go back home and say I voted for it, but I didn't vote for this bill. This bill is going to determine whether we actually do something and we authorize it and direct how it is to be done, not your previous vote.

That is what has been happening. We have always said we have had these votes, but when the dust settled we never made it law and never made it reality. I urge my colleagues to understand that. Without this legislation we are not going to get there in the way you previously voted, and everybody needs to understand that.

Let me tell you a little bit about what is in the legislation. The majority leader summed it up correctly. I appreciate his leadership and his strong support from the beginning for sufficient border barriers. Majority Leader Frist is committed to a good and just solution of the immigration problem in America, but he has come to understand that we have to take steps and do some things, and one of them is fencing.

This is what this bill will do. It will establish operational control of the border. Most people think we ought to have that now but we do not. We do not have operational control of the border. So not less than 18 months after the enactment of this bill, the Department of Homeland Security must take all actions necessary and appropriate to achieve and maintain operational control of the border. Isn't that what we want? Isn't that what we have been asking for, for 30 years?

Within 1 year of enactment, and annually thereafter, the Secretary must report to Congress and to the American people on the progress made toward achieving operational control of the border. We are not going to just pass a bill this time and forget it. We are going to have some reports and some analysis so we can monitor whether we are being successful.

Operational control under the legislation includes systematic surveillance

of the international land and maritime borders through the use of personnel and technology such as unmanned aerial vehicles, ground-based sensors, satellites, radar, and cameras. Those are all going to be part of any effective system. We know that. We are not opposed to that. But don't let anybody tell you only those things will make the system work. They will not.

Thank you, Mr. President.

Physical infrastructure enhancements to prevent illegal entry of aliens and to facilitate access to international land and maritime borders by the Customs and Border Protection Agency are important. The bill further defines operational control as the prevention of unlawful entry into the United States, including entry by terrorists, unlawful aliens, instruments of terrorism, narcotics, and contraband. Second, the bill extends the current requirement for border fencing in San Diego, requiring that fencing be installed by 2008 through several urban areas. It mentions those. All the fencing in the bill is focused on the heavily trafficked areas on the southwest border. None of the fencing extends further than 15 miles outside high trafficking areas.

Let me just say this: The system that we have today is failing so badly that last year we apprehended 1.1 million people entering into this country illegally. Tell me that is a functional system.

By sending in the National Guard, by building these barriers, by adding to the number of agents, each one of those steps will help send a message throughout the world that we are not wide open, that our borders are going to be enforced. You should not come illegally. You should wait in line and come legally.

Those are facts that I think all of us need to consider as we evaluate this legislation.

Mr. President, I see the Democratic leader here, Senator Reid. I know his day is busy. I will be pleased to yield the floor and reserve the remainder of my time.

Mr. President, I thank the Democrat leader and his citing of that report. I look forward to reading it.

The reason that is important, this so-called comprehensive reform bill that actually passed the Senate, with a substantial number of no votes, is nothing more than an extension of the current failed system. It is not a comprehensive reform of immigration at all.

We had a hearing last week at my request. We had some of the best minds in America on immigration. They said our present system is completely ineffectual. I think that is fair way to summarize what they said.

They all spoke favorably of the Canadian plan, the Australian plan, and other plans being developed by developing nations around the world. It makes every sense that we do that. I am looking forward to analyzing that report. I am confident it will be further evidence that business as usual in immigration must end.

Next year we need to come forward--and I will commit to working with my colleagues--and have a real dialog on what immigration should be for America. The seminal expert in America, Professor George Borjas, himself an immigrant, at the John F. Kennedy School at Harvard, has written the most authoritative and best-known book on immigration, ``Heaven's Door.'' He just testified at our hearing last week. He has said in his book and in his testimony, fundamentally, America needs to ask this question: Are you crafting an immigration policy that serves your national interests?

If that is what we are doing, then he has some ideas that help us do that. But that is not what we have been doing. We have never had a discussion of the Canadian plan that gives preference to people with education. We have never discussed the Canadian plan that gives preference to people who already speak English. We have not discussed the system in Canada that gives preferences to people who bring business investment or have skills that are important in the workplace.

Isn't that what a rational nation would do? This bill that passed the Senate is fatally flawed. We need to start over completely. I believe, that report will validate the things I just mentioned.

Of course, let me say to all of our colleagues, no one suggests that building a fence is the end to the problem. Mr. T.J. Bonner, head of the Border Patrol Agents Association, testified at our committee. He said there are two things we need to do: We need to strengthen the border and eliminate the magnet of the workplace by cracking down on illegal hiring in the workplace.

The Senator from Nevada, the Democratic leader, is correct. We have seen some reduction in the numbers being apprehended. I hope that indicates we are seeing a reduction in those attempting to enter the country. I believe it does.

What should that tell us? That should tell us that if we continue to take strong steps, we can end this worldwide perception that our border is wide open, that anyone can come through our country legally or illegally and end that whole perception and shift toward that magic tipping point where people realize they are not going to be successful getting in our country illegally, and they are not going to be able to get a job once they get here. We can do both of those.

The American people need to know, our Members of Congress need to know, if we continue the course we are on and actually follow through on the things we have discussed, we can create a lawful border. It is not impossible. Don't have anyone say that is impossible. It is part of the steps. To say we should not do border fencing because that is just one step and that is not the whole thing is silly. If we have to take 20 steps to get to the goal, why say it is worthless to take 2 of those steps? Certainly we ought to take the steps we know we can do right now.

The American people are a bit cynical about what we are doing. The leader asks, Why do we want to bring it up now? We are about to finish the session, and we still haven't gotten it done. I don't want to go home without having done some things to improve the legal system of our border. I don't think most Members do. We have to get it done. We should have already had it done. I agree with that.

I was sharing some thoughts before the minority leader, the Democratic leader arrived, about what is in this bill, how it actually is effective and will actually work and will actually reduce the immigration in our country from illegal sources by a significant amount.

I was able to travel with Senator Specter, chairman of the Judiciary Committee, to South America recently. We were in a number of countries. We saw a report on polling data in Nicaragua that said 60 percent of the people of Nicaragua would come to the United States if they could. I mentioned that to the State Department personnel in Peru. They told me that 70 percent of the people in Peru would come to the United States if they could, according to a recently published poll. This is a wonderful place. America is a great country. All over the world, millions and millions and millions would like to come here. We cannot accept everyone that would like to come. I wish we could, but it is just not possible.

We need to set standards and appropriate behaviors to create a system that is lawful, No. 1; also, a system that lets people come in on the basis of merit and what is in the best interests of our country.

The House bill we are now considering has some important and valuable things in it. It calls for interlocking surveillance camera systems that must be installed by May of next year. They are going to keep waiting. How much longer can this go on? We need Homeland Security to get moving. It says all of the fencing must be installed by May of 2008. That is a good step. That says we are going to get serious and we are going to do something.

Laredo-Brownsville would be given until December of 2008. The bill provides the Secretary of Homeland Security the flexibility to substitute fencing with other surveillance and barrier tools if the topography of a specific area has an elevation or hillside of greater than 10 percent.

I ask what the balance is on both sides.

Mr. President, the bill that is before us today requires the Secretary, not later than 30 days after passage, to evaluate the authority of our Customs and Border Protection agents to stop vehicles that enter the United States illegally and that refuse to stop when ordered to stop. Compare that authority with the authority given to the Coast Guard to stop vessels on the high seas that don't stop

when they are ordered to stop, and to make an assessment about whether the Border Patrol authority needs to be expanded. We have a real problem with people just riding by and placing people at risk by not stopping. That situation needs to end.

We need to give our agents authority sufficient for their own personal safety and the protection of the laws of this country.

The Secretary would be required to report his decision within 60 days.

The bill further calls for a northern border study to assess the feasibility of a state-of-the-art infrastructure security system. The report will assess the necessity for such a system, the feasibility of implementing a system, and the economic impact of the system.

We need to look at the northern border. We are not arresting 1 million people-plus a year on the northern border. It does not have anything like the impact of the movement of people illegally such as we have on the southern border, but we need to watch that, too.

Fencing is proven. In San Diego, where they built a fence a number of years ago, crime has fallen dramatically. According to the FBI Crime Index, crime in San Diego County--the whole county--dropped 56 percent between 1989 and 2000. Can you imagine that? Just by ending the open border that existed, vehicle drive-throughs where they do not stop--and the reason they have fallen from between 6 and 10 a day before the construction of the fence, to only 4 drive-throughs in 2004, the whole year.

This is a mockery of law when 6 to 10 people are just driving through the border ignoring the Border Patrol officers who are there. What kind of mockery of law is that?

Fencing has reduced illegal entries in San Diego.

According to the numbers we have, apprehensions decreased from 531,000 in 1993 to 111,000 in 2003. That is by four-fifths. That is only one-fifth the number being arrested today as there were 10 years ago as a direct result of serious enforcement bolstered by physical barriers.

Fencing has also reduced drug traffic in San Diego. In 1993, authorities apprehended over 58,000 pounds of marijuana coming across the border. In 2003, only 36,000 pounds were apprehended. In addition, cocaine smuggling decreased from 1,200 pounds to 150 pounds.

I am glad to hear that the majority leader--and the Democratic leader--indicated he would move to have this bill come forward on the Senate floor. If there is some tweaking which needs to be done, that will give us an opportunity to do that.

I think the bill is fundamentally sound in all respects. I urge my colleagues to look at it. I think they will feel comfortable that it is consistent with their previous votes in this body for a fencing measure.

But the Members of our body need to understand that our first vote on fencing, which we authorized on the immigration bill, is not going to be effective because that bill is not going to pass. It was an amendment to that bill. If we are going to do anything before we leave this year--and the American people should be watching us carefully-- this is what we need to do. We have an opportunity now to stand up and make real what we have talked about and what we voted for. If we don't do it, we will not make that reality come into effect, and we will not be faithful to the promises we made to our constituents. And, once again, we will see this kind of cynicism and disrespect for Congress because of our inconsistency in what we say and what we do.

Too often I have observed in this body when we come up with an idea about immigration that does not work, it will pass. If you come up with something that actually does work, for some reason or another, even if it is voted and passed in one body or other, it never seems to really become law. This time we need to make our legal system work.

I thank the Chair.

I reserve the remainder of my time.

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

Mr. President, I am convinced that physical barriers at our borders--fencing in particular--are an important and central cost- effective solution to border security.

My colleague, the Democratic leader, has used a figure of $7 billion. We think that is greatly exaggerated. We believe it can be done for much less than that, although that money has been floated. A private contractor has indicated he could do it for about $1.8 billion, and that is the money we put into the bill. And with the help of the National Guard, I think we ought to be able to build fencing at a rate far less than that.

I note that this is a one-time expenditure. This expenditure is going to reduce the 1 million apprehensions a year dramatically. A barrier like this will enhance the ability of each and every single Border Patrol officer to do his or her job. It will enable them to be far more effective. It is going to enable us to not have to hire nearly as many people. It will send a signal to the world that our border is not open. That means we will need fewer bed spaces.

We are going to be moving toward reaching that tipping point where the border is perceived as being closed, where the legal system is being honored in America again, and where we can make a difference in this whole system. Manpower alone cannot work.

Are they going to have to stand every 500 yards on the border and try to catch people? When you apprehend somebody, you have to pay to take them to a facility and then take them back across the border; or if there is some distant country, pay for a plane ticket and send them back home and put them in a detention place until that occurs. We think we need a catch-and-release program. But even if we do this, it is still very costly.

A fence is going to save us billions of dollars over the years. It is going to allow us to be effective, with fewer Border Patrol agents. It is going to help us reach that tipping point where we will need far fewer bed spaces and far fewer planes to charter to take people back home. We will have far fewer efforts to move people back across the border, at a great savings to this country. This is a cost-savings bill. It is a statement bill, I submit. When you count the costs of salaries and the time and insurance for our Border Patrol, the risk at which they are placed, a fence is going to be a tremendous asset to them. We will have a roadway so they can move down in their vehicles along the border to pick up people who have entered. The word is going to get out that it is not easy to do that anymore.

There are a lot of other things we need to do. We need to clarify the current law as it exists.

Along with my staff person, Cindy Hayden, a lawyer on the Judiciary Committee, my chief counsel, we wrote a Law Review article for the Stanford Law Review. We talked about the authority of the local law enforcement officers. They have authority in most instances, but it is blurred and confused, and as a result most State and local law enforcement officers are afraid to do anything. We need legislation that will fix that. We need the workplace enforcement.

All of these are steps that need to be taken so that people can't come into the workplace fraudulently and get a job as they are today. Those things can be done, but a critical part of this entire process is securing the border first. The American people expect us to do that.

This legislation gives us that capacity. We can make that difference, and the result will be that we are going to see further improvements in the number of apprehensions.

Then, next year we need a good dialog. As Senator Harry Reid said, we need to take Professor Borjas's book, ``Heaven's Door,'' and take other testimony that we have seen and reviewed and build on that and develop a comprehensive program that we can be proud of, that will allow talented immigrants to come here, people whom we know scientifically from studies and analyses will be successful in America, who will pay more in taxes than they take out. And the numbers are really scary.

Large numbers of people coming in today are high school dropouts, do not have a high school diploma. According to the National Academy of Sciences, a person coming into our country without a high school diploma, over a lifetime, will cost the U.S. Treasury almost $90,000. Think about that. They

will have a low-wage job. They will not be paying income tax. They will be receiving other benefits. That does not include extra schools and highways that will have to be built. It only includes what they will be getting in terms of earned-income tax credit or Food Stamps and other benefits such as medical and the like.

We are moving now. The American people's voices are beginning to be heard. But I think we are going to have to study this issue. If the American people will stay in tune, if they will insist on the highest and best values, including law and decency and generosity and a positive view of immigration, we will have all those values at play in our decisionmaking process. We can come up with legislation next year that actually could do more good than most people realize.

I can't tell you how exited I am about it. But it is absolutely essential that we take steps today to gain credit with the American people; to have them understand that we are listening, that we are going to make the legal system work. And then we can enter into a dialog with them next year to develop, as Professor Borjas's book says, policies that serve the legitimate interests of our Nation.

Why shouldn't we do that? Other countries are doing that. Are we saying that Canada is not an advanced and humane nation? Are we saying that the policies that New Zealand adopted are not humane and decent and effective? Look at it. We will find that they are. In fact, they allow quite a number of people to come into their country every year, but they try to allow those to come who have the best chance of being the most successful.

It has exciting possibilities for us. It is important that the misguided legislation that has come through this Senate has now ground to a halt, that the House has flatly rejected it, and that we in our own body are reevaluating it--I think rightly--and we will be at a point where we can start over, start afresh and develop a comprehensive plan.

Let's get credibility with the American people.

Let's make this border a lawful border again, and we will see a reduction in crime. We will see increasing economic and commercial development in the areas where enforcement becomes a reality. We can tell the world that you have an opportunity to come to our country, but you are going to have to meet standards. You will have to apply, and you will be objectively and fairly evaluated. And if you meet those criteria, you will rise up in the list. If you do not, you may not be able to get in. We are sorry, because everybody cannot come in here. We wish it were different, but it is just so. We cannot accept more and more and more. We have to decide what the right number is, what skills and assets they bring that we want for our country, and make a selection process on that basis. It is really exciting, that possibility.

In our situation today--I say to my colleagues, I would like to share this one thought with you--and I am sure the report that Senator Reid mentioned probably has some discussion of it because it is a defining event--only 20 percent of the green cards--that is the card that gives one permanent residence in the United States--only 20 percent of those are given out based on the skills of the applicant. Think about that. How can that be in our national interest? The experts we have heard say it is not in our national interest. Canada and other nations have analyzed this. They have decided that is not where they want to go. So they are trying to get to 60, to 70 percent based on skills.

Yes, we will always have those subject to persecution around the world, humanitarian cases, who we will allow in our country. But the number and the way we are doing it now is not a sensible way to proceed.

Mr. President, I yield the floor and reserve the remainder of my time.

Mr. President, I notice that none of my colleagues are here. Senator Reid, I am pleased to say, indicates he will be supporting moving forward to the bill and cloture. I will take time, as we are heading up to the hour to vote, to share a few additional thoughts.

The only way we are going to get an authorization of the fencing is to pass this amendment. The authorization for border barriers I offered as an amendment, which was adopted as part of the comprehensive so- called immigration bill, will not become law because that bill will not become law. This is the way we have now to do it.

The House has passed a bill that is thoughtful, that makes sure we are not playing a shell game with the American voters but that we actually create a mechanism to ensure that the fencing gets built on a timetable. It includes a number of other things, such as technology and sensors and the like.

The second aspect of the legislation is very, very important. We voted in this body 93 to 3--and the majority leader and the Democratic leader both made reference to it--to fund it at $1.8 billion. That was a commitment we made. We said we were for that. This budget that we passed has $20 billion set aside for emergency funding as part of our budgetary expectations for this year. How much of that will go to homeland security? We have to be careful to watch. And even though we authorized these barriers at the border, which are going to make a huge, huge difference in reducing illegal entry into America--it is going to be so positive--but if we do not fund it so we can actually build it, it cannot be built. That requires an appropriations.

So I am getting worried about that. I am hearing some things--that the $1.8 billion we passed with such an overwhelming vote may not be funded. So isn't that the shell game we are talking about now? Isn't that the deal? We thought we had done it on the Defense bill. It would be built through the National Guard who is already on the border. And the money would go to them to supervise, to contract out, or utilize their own personnel to construct this fencing.

That is what we thought we had done. But as often happens around here, subtle things happen. You think you have something in your hand and like a will-o'-the-wisp it just disappears. I hate to use the words ``shell game'' because it is not always planned out that way, but the effect can be the same. First you think you have it, and then it disappears. You think it is under that shell, you think you have it, and it is not there.

So I am going to have to tell our leadership on both sides of the aisle I am pleased to see we have a commitment to building the fences. We voted twice now, and the House has overwhelmingly voted for this. But we need to make sure we don't play a shell game where we don't have the money at the end to build it because somebody wants to spend it on a pet project they have.

This is a matter of national interest. It is a matter of national security. It is a matter we cannot fumble the ball on. It is a matter we are committed to by our previous votes. So let's make sure we do it. And setting priorities is what we do. That is what we are paid to do. We cannot do everything. So we will have a bit of a test as the session winds down to see if the appropriations process--the actual appropriating of the money to do the things that are needed to be done--is carried out and the funding is there and the barriers are built.

Again, I repeat, this would be a one-time expenditure. I believe the numbers we are hearing are too high. We felt like $1.7 billion, $1.8 billion would do the 370 miles of fencing, including 500 miles of vehicle barriers. There is enough money to fund that. But if we are going to have to have that, we can't have no funding, a third of the funding, or a half of the funding or we are not going to be able to do this job. And if it turns out we are wrong and the cost is higher than we expected, we are not going to come close to doing what we are telling the American people we intend to do. So we will have to watch that.

I will just share, in conclusion, my thoughts about the nature of the American Republic of which we are a part. It is a good and decent nation. We have a positive view of immigration. We have been a nation of immigrants from our founding. We believe in immigration. But we are also a nation of laws.

I was a Federal prosecutor for 15 years, and it breaks my heart to see the Federal United States law be made a mockery along the border of our country, that without fencing people are driving by, and not even stopping when the Border Patrol attempts to detain them.

We had a hearing yesterday on crime in America. We had the Director of the Bureau of Prisons. He told us that in the Federal prison penitentiaries 27 percent of the people detained are not American citizens. Can you imagine that--27 percent?

Now, I am absolutely convinced that overwhelmingly the people who come to our country are law-abiding; even if they come to our country illegally, they are law-abiding, other than their entry. But I have to tell you, if I were in big trouble somewhere in some foreign country, and they were trying to arrest me in my hometown, and the chief of police knows my name, and I am facing a big, serious crime, why would I not want to scoot across the border and go to the United States where nobody would know me?

I think we are picking up an excessive number of people who may even be fleeing prosecution in their towns or people who have come here to set up drug distribution networks and things of that nature. So somehow we are picking up a larger number of the criminal element than we ever have. When I asked Mr. Lappin about the prison system and the fact that he said 27 percent of the people in the Federal penitentiaries are noncitizens, I asked him: Does that include those we detain at the border who are being held waiting to be deported? He said, No, it does not even include those.

So this Nation, in our own interest, has every right--indeed, we have a duty to our people--to make sure our borders are not wide open, terrorists do not come here, drug dealers do not come here, people in trouble for sexual offenses and child pornography and those kinds of things, and child abuse, who flee their own countries, do not run across the border to safety in the United States, where they are never apprehended and live here.

So this is all part of it. If we are coming through with the right funding, we will be successful in taking the historic step to creating a lawfulness in this country.

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

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

Mr. President, what is the pending business? Is there pending business, might I inquire?

All right. Does the Senator know how long he might speak?

Well, Mr. President, I want to talk on a slightly different issue, so I would accept that and withdraw any objection.

I thank the Chair.

Mr. President, I say to the Senator from California, I attempted to follow the Senator from Colorado, and Senator Leahy wanted to speak next.

I am thinking about 20 minutes.

Mr. President, with regard to the question of fencing along our southern border, I wish to make a couple of points.

Over 1 million people were apprehended last year along that border. One million people coming in illegally were apprehended. Probably another half million got through without being apprehended. Good fences make good neighbors. It is time for us to bring lawfulness to that border. I think the American people want that.

If somebody would like to know the differences between our parties and the differences of how we approach the question of having a lawful immigration system in America, I suggest that my colleague--I enjoy working with him a great deal on the Judiciary Committee.

My colleague referred to the legislation that we voted to move forward to consider--legislation that passed this Senate 94 to 3 to fund the fence on the border and passed 83 to 16 to authorize the fence to be constructed--as ``hasty, ill-considered, and mean-spirited.'' He then went on to suggest Secretary Chertoff is conducting a war on immigrants.

How much of a difference can we have here? How big a gulf? Do the American people want us to just say nothing can be done one more time and just give up, or do they want us to take rational steps that would bring lawfulness to the border? I think they want us to do the latter. They have been asking us to do that for some time, and the votes in this Senate and the House of Representatives have been overwhelming in favor of that approach.

My colleague says that we had hearings in the Senate and we had a Senate bill on the floor, and he implied--I thought he said that fencing was a part of that bill, but it wasn't really. It was my amendment on the floor that moved that bill forward in a significant way. At any rate, we did discuss it, and there has been broad support both in the committee and on the floor to proceed to that matter.

I just want to say, yes, we want comprehensive reform. No, we don't want to end all immigration. The wall the Communists built in East Germany was to keep their citizens in East Germany, to keep them from fleeing their country so they could have freedom. That is quite different from an attempt to maintain a legal flow of people into the country because we just can't accept everybody. This country cannot accept everybody who would like to come.

A recent poll in Nicaragua said 60 percent would come to the United States in they could. A poll in Peru said as many as 70 percent would come if they could. The whole world has millions and millions of people who would like to come to this country. So we ought to set up a rational system, one that serves our national interest, one

that is fair, and then enforce it, set up a system that works. As long as we have a wide-open border, without control and law, we are not doing our duty. I don't think those of us in this Congress, in this Senate, want to go back home after we recess and say we didn't follow through on what probably most of us have been saying--that we do believe barriers are necessary.

The House has sent us a bill, not unlike the Senate bill that we passed 83 to 16 and we voted to fund 94 to 3. The bill I offered had 370 miles of fencing and 500 miles of barriers. The House bill has about 700 miles, I believe, of fencing and barriers and electronics. There is not a lot of difference fundamentally between the two.

We now will have an opportunity to offer amendments to discuss details. Fundamentally, we need to take action. We need to do something. We don't need to go home again and wait until next year without any action.

Then when it comes to comprehensive reform, we need to bury the proposal we have that the Senate has considered and voted on, move that aside, and come back next year with a fresh approach and create a comprehensive plan for immigration that serves our national interest, that is consistent with what our allies, such as Canada and Australia, do, and consider what they do. If we do, we will come up with some good ideas, and we will have something the American people can support.

If we gain some credibility with the American people by, first, taking action toward enforcement, we will be able to do something good, but it will have to be next year. There is no way this Senate should accept a rushed-through package before this election or after this election in some lame-duck Congress that does not have a fresh look at our policy. I will resist that with every fiber of my being, but I will not resist comprehensive reform because I think we need it.

I wanted to share those thoughts, Mr. President. I am pleased that we just had a unanimous vote to move forward to the fence bill the House has passed. We will talk about it today and tomorrow.

I also serve on the Judiciary Committee and the Armed Services Committee. We have had quite a lot of discussions on those two committees and now in Armed Services, in particular, about how to deal with the effect of the Hamdan decision and how to make sure we are in compliance with the Supreme Court opinion. I want to make a couple of points.

The President thought and believed and his top lawyers advised him-- his top lawyers advised him--that the detainee interrogation program that was being conducted, that they wanted to conduct, was producing substantial results for America, obtaining information that has thwarted attacks on America and saved lives, has provided information to identify that some of the people involved in 9/11--these are some of the people who have admitted and we have evidence against to prove were actually complicitous in 9/11, coconspirators. The President has moved those prisoners down to Guantanamo.

The interrogation process for those have been exhausted. They believe they have obtained all the information they can expect to obtain. They need to be tried for the crimes they have committed in a war they are conducting against the United States of America. They will be tried in the forum in which they should be tried, in a forum provided for in the U.S. Constitution, in a military commission.

This is not a trial in the Southern District of New York for an American citizen for bank fraud or drug dealing. This is a military commission adjudication of whether these people are involved in a war against the United States that has resulted in the deaths of 3,000 American citizens on 9/11 and other deaths since then. So he had a legal opinion on that. They briefed it to him. And do you remember the President looking us in the eye right after 9/11, and he said just the other night, Monday night a week ago, I guess, on television, he looked the American people in the eye and said: I am going to use every lawful power I have to defend the people of this country. That is my responsibility, in effect, he was telling us, that is my duty, to protect this country, and I am going to use every lawful power I have. And we cheered. And we said: Yes, sir. And we said: Mr. President, catch those guys. Put your people out there and catch these terrorists who have attacked our country and killed our innocent people and crashed into the Trade Towers and run airplanes into them. Go get them. Do you remember that? Boy, I am telling you, people felt strongly about it.

So now what do we have? Oh, we have the complainers and the second- guessers. I just want to say this: I believe the President's program was legal from the beginning. I have researched the law. I have been involved in this. I was a Federal prosecutor. I don't know everything, but I have some understanding of it through both of the committees in which I have been involved, and I know they researched the law and they believed they were operating lawfully.

I remember the Ex parte Quirin case during World War II when President Roosevelt was President. They caught a group of saboteurs who were let loose on the American homeland from a submarine, I believe it was, and they came in and they planned sabotage against the American people. Do you know what they did? And the Supreme Court approved this in the famous case Ex parte Quirin. They took them, they caught them, they set up a commission, they tried them, and they executed most of them in short order because this was not like some normal trial. These were people coming into our country for the purpose of sabotaging this country, people whose motives and desires were to kill innocent men, women, and children, contrary to the laws of war--contrary to the laws of war, which do not allow for that. That is the big deal.

So the people who have been apprehended, the people who were being detained and incarcerated and interrogated were not prisoners of war. This is crystal clear. You can't execute prisoners of war the way we executed the Nazi saboteurs. Prisoners of war are entitled to all of the protections of the Geneva Accords, and they have to be provided great protections and great advantages, really, and we adhere to that, we adhere to that today, and we always have. It was been taught to every soldier in America.

But these are unlawful combatants. They sneak around. They don't wear uniforms. They don't carry their weapons openly. And their goal and tactic is to utilize terror and slaughter innocent men, women, and children to promote their agenda. That is not a soldier. A soldier can drop a bomb on a military target, but a soldier can't shoot because it may unfortunately result in someone being killed. But a soldier can't deliberately have his policy to kill women and children and noncombatants. Otherwise, they are an unlawful combatant, not a lawful combatant, and they have been considered not to have been covered by the Geneva Accords.

But the Supreme Court, in my opinion fundamentally reversing the Quirin case, which the President relied on, came along and said that in Hamdan, Common article 3 of the Geneva Conventions applies to these terrorists and that we need some more rules and regulations with regard to how to try them to create a just trial.

OK. So what did the President do? Did he act unilaterally and say: I am not going to do it, I am not going to comply with the Supreme Court. Yes, he previously said he thought what he was doing was proper. No. What did the President say? He said: Congress, let's review Hamdan. We are sending you some proposals which will clarify what we can do with interrogations, which will fix the concerns about trying these unlawful combatants, and I want you to act on that, and we need to do it quickly because we need to continue to interrogate terrorists and we need to try those people who are responsible for the deaths of American citizens on 9/11. That is not a seizing of power--some dictator. That is not someone who comes along and says: It has to be my way or the highway.

So we have a group of Senators now on the Armed Services Committee who say: Well, they have their own plan and they have researched the law and they don't want to do what the President says. They want to do it their way. OK. This is what Congress is all about.

I agree with the President. From what I understand of the situation,

Mr. President, I think Alice Fisher is a fine person. My colleague and those on the other side are never happy with whatever the President does to try to protect this country.

He looked the American people in the eye--after he was elected, we had 9/11--and he said: I am going to use every power I have to prosecute, investigate, and stop those who threaten the safety of the American people. That is my responsibility as Commander in Chief. I took an oath to do that, and I intend to do that.

And he appointed some good people. Now all we have had is second- guessing, second-guessing, second-guessing, complaint, complaint, complaint, hold up nominees; never happy.

Somebody has to do something. I remember right after 9/11. What happened? We had a national epiphany. We found out in a spasm of political activity years ago, just like in many ways today, the Congress, to placate critics and liberals and activists, prohibited the FBI from talking to the CIA. They prohibited CIA agents because they heard some of them had made a mistake somewhere--there were allegations of that--that they couldn't talk, when they were out doing undercover operations trying to obtain human intelligence in dangerous areas of the world, with people who had criminal records and might have done something wrong.

What happened after 9/11? We said: Why didn't we have any human intelligence? What are the problems here? What we concluded was that both of those proposals, for example, were wrong, and we promptly reversed them. We changed the law.

That is all I am saying about this flap--and I have been involved with it on the Armed Services Committee, and I have been involved with it on the Judiciary Committee. We have had 30 or more hearings investigating the people of this country who are trying to preserve, protect, and defend this Nation. That is who we investigate and complain about. Do we ever hear about how to better catch the terrorists? It is time we start thinking about defending and protecting this country rather than to prosecute and block and obstruct those who have been giving their every waking moment to make us safer.

My good colleague from Michigan is such an able Senator. I am sorry this

didn't all work out to his satisfaction. The Department of Justice, the administration offered this, he didn't like that. They offered that, he didn't like that. Maybe sometimes one gets to thinking there has been a little strategy around here--and I have seen it in case after case that began with Miguel Estrada--for the Members on the other side to demand records, statements, internal conversations, internal memoranda to which they are not entitled. They don't want people coming in and demanding everything they said to everybody who came into their office. So they come up with this, and they ask for all these items. Then when they don't get them, they say: Obstruction, obstruction; we can't vote for the nominee. Now they have created an excuse to vote against a very fine nominee, when the person is doing an excellent job and ought to be confirmed so they can continue to be even more effective in the war against terror.

I have seen it time and again. With regard to the Sixth Circuit Court of Appeals, one of our Senators down here complaining had a whole host of those nominees held up for years. The court ended up deciding the University of Michigan higher education, affirmative action case with far less judges than should have been on that panel. There has been some real concern expressed about that.

Obstructing, holding up, and delaying nominees is not the right thing to do. We have important governmental actions to do here.

Let me tell my colleagues about Alice Fisher. She has proven herself in the Criminal Division. Under her leadership, the division has made a number of great strides. The Criminal Division has been responsible for the national coordination of all national security prosecutions, of all the criminal cases in Federal court, including domestic and international terrorism and counterintelligence matters.

Alice Fisher has also worked closely with the intelligence community. That is her responsibility. We had too much of a wall of separation. Sure, she is to be engaged in these issues to assess potential threat information to our national security and disrupt potential attacks against this country.

Alice Fisher provides advice to U.S. attorneys. I was a U.S. attorney for 12 years. There are 93 of them around this country covering the whole country. She provides them advice on terrorism matters, including such areas as terrorist acts in the United States and abroad, weapons of mass destruction, principles of extraterritorial jurisdiction, and use of classified evidence and intelligence information in prosecutions. Alice Fisher also established the Office of Justice for Victims of Overseas Terrorism.

During her tenure, the division's counterterrorism section, which Fisher also had previously organized and supervised as Deputy Assistant Attorney General, has prosecuted numerous ``material support'' terrorism cases, cases against people who have given material support to terrorists to further their ability to attack and kill innocent people in this country and abroad. Those prosecutions have been located throughout the country and include alleged planners supporting terrorism in Georgia, Ohio, Florida, New York, Virginia, and California; defendants facing extradition from the United Kingdom and other foreign countries; international terrorist organizations, such as al-Qaida, Hezbollah, FARC--the Revolutionary Armed Forces of Colombia-- and domestic terrorists.

Under the direction of the Attorney General, the Justice Department is placing increased emphasis on targeting gangs. Fisher was chosen by the Attorney General to head that effort. Under her guidance, the Criminal Division has created the National Gang Targeting, Enforcement and Coordination Center, a multiagency initiative led by the Criminal Division, with participation from the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Bureau of Prisons, the Drug Enforcement Administration, the Federal Bureau of Investigation, U.S. Immigration and Customs Enforcement, and the U.S. Marshals Service. Those are agencies she coordinates.

The gang initiative will create law enforcement strategies and facilitate operations across agency lines aimed at dismantling national and transnational violent gangs. Fisher also established a new gang squad of experienced gang prosecutors who coordinate nationwide prosecutions and make them more effective.

Under her leadership, in partnership with various U.S. Attorney's Offices and the Drug Enforcement Administration, more than 130 defendants were recently indicted and hundreds of thousands of dollars seized as part of an international operation targeting the trafficking of black tar heroin in the United States. The multistate investigation, called Operation Black Gold Rush, included arrests in 15 U.S. cities and 10 indictments in eight Federal judicial districts, along with State charges. More than 17 kilograms of black tar heroin, a potent form of heroin that is dark and sticky in appearance, were seized during this operation.

As Assistant Attorney General, she also has been involved now, and earlier when she was the Deputy Assistant Attorney General, with the Enron task force. We remember when everybody talked about Enron that something had to be done about it. Many people doubted anything would be done about it. President Bush announced that we were going to have integrity in big business, and big business people who cheat and harm their employees and others in this country will be vigorously prosecuted. She was involved in that effort.

She supervised the Enron task force. It has investigated that entire scheme created by the executives of Enron to deceive the investing public, the Securities and Exchange Commission, and others. The case has resulted in convictions of top Enron executives. Many said that wouldn't happen, but they have been indicted, convicted, assets seized, and those include Ken Lay and Jeffrey Skilling, the two top people.

As a member of the corporate fraud task force--and we need to be aggressive in prosecuting corporate fraud in America--Fisher coordinates with other agencies on corporate fraud policies and investigations.

She has supervised recent corporate fraud prosecutions involving defendants from AIG, BP, and Qwest. She is not afraid to take on the big boys. She has done so effectively and courageously.

She is cochair of the Law Enforcement Subcommittee of the President's Identity Theft Task Force. That is an important issue in our country. I have a staff person, and someone stole her identity and used it. She spent years trying to clear her record and get the situation straightened out.

Under her direction, this subcommittee is focusing on enhancing coordination among law enforcement agencies, the Federal Trade Commission, and others to maximize the Government's capabilities to curb the international problem of identity fraud.

Mr. President, I know you served so ably in Florida as a mayor and then later as a member of the President's Cabinet. Florida and other areas received terrific losses during Hurricane Katrina. We will probably spend over $100 billion on trying to help that whole region recover and a whole city, New Orleans, that was flooded. Having been a prosecutor in Mobile on the gulf coast after hurricanes, I can tell you that fraud does occur. You want to get money out to people who are hurting in a hurry. You can't ask for the same amount of time and evidence that you would normally ask. People need help right now. They have no place else to go. But people take advantage of that. The scum of the Earth take advantage of the generosity of the American people by often slipping in as contractors or claimed beneficiaries, lying about losses, to get money that is supposed to go to people who are hurting.

Well, just days after Hurricane Katrina hit the Nation, Attorney General Gonzales established the Katrina Fraud Task Force. This task force would send a message right off the bat that fraud would be investigated and prosecuted, and it was to focus on fraud and corruption resulting from the hurricanes. He named Fisher the Katrina Fraud Task Force chairman. As chairman, Alice Fisher quickly set up a forward-looking strategic plan and resource allocation for this interagency task force, among all the other things she was doing, to investigate and prosecute fraud arising from Hurricane Katrina and related disasters. Under her guidance, the task force has made great strides to combat fraud.

As of July 25, the task force had charged 371 defendants in 29 separate Federal districts. A majority of the cases charged to date have involved emergency benefits fraud against both FEMA and the American Red Cross--charitable donation fraud. People have gone out and claimed they are raising money to help people, and they just steal it. What kind of sorry person is that, who would ask people to sacrifice and give help to someone else, and then steal the money? We have that, and she is working against it.

Other cases have involved Government contract fraud. We have people taking advantage of the contracting process and cheating when they are supposed to follow through and do certain amounts of work for the Government. They have certified they have done it, they get paid, and then we find out they didn't do it. Some of them need to go to jail.

The task force has therefore been taking a number of proactive measures to identify, investigate and prosecute these kinds of cases.

Alice Fisher created the Katrina Fraud Task Force Joint Command Center in Baton Rouge where analysts, agents, and inspectors from the Inspector General and Federal law enforcement communities co-locate-- these are all of the agencies, State and local--they get together to focus on procurement fraud and public corruption which could result from the over $100 billion reconstruction money flowing into the affected region. As of July 25, 2006, the Command Center has received and referred 6,424 complaints to various Federal agencies.

The task force has provided training for the Inspector General community. Each one of these agencies have their own Inspector General, and many of those Inspector Generals are not familiar with hurricane work. They train all of them so that the Commerce Department, the Agriculture Department, the Coast Guard, and other agencies involved with this relief effort can have watchdogs within their agencies trained to prevent fraud.

I am going to tell my colleagues, we have had a problem in this Nation, and we still do, of public corruption. There are public officials, whether in hurricane areas or not, who are taking money, extorting bribes and that sort of thing. Unfortunately, that is true. For the most part, we are a Nation of high integrity, but there are those who don't meet those standards and need to be prosecuted. I would say, in many cases, the Federal investigators are the ones who really have the best opportunity, the independence, the distance, from the situation to handle these cases, and they just have to do it. They have been rightfully praised over the years for their leadership in that area.

Under Fisher's leadership, the Public Integrity Section has prosecuted major public corruption cases, including the ongoing Jack Abramoff investigation, which has to date resulted in five pleas of guilty and in a conviction after trial of David Safavian, the former chief of staff of the General Services Administration--the GSA, a big Government agency here in Washington, their chief of staff. In addition, Fisher supervised the successful prosecution of former Alabama Governor Don Siegelman and former HealthSouth CEO Richard Scrushy for conspiracy and public corruption offenses.

Fisher was recently named by the Deputy Attorney General to establish a national procurement fraud initiative. Now, we have a lot of money that is paid out as a result of Government procurement by our military and other agencies, and there is a good bit of fraud there, so she is forming a national initiative on that.

Since Fisher's tenure began, the Department of Justice has made headway in aggressively prosecuting crimes against children. A lot of people say the Department of Justice shouldn't be involved in those kinds of things; that it is not important, and we need to focus on other big issues. But I submit the Department of Justice's leadership and work in these cases can make quite a difference.

For example, the Criminal Division is currently coordinating 18 national child pornography operations targeting hundreds and, in some cases, thousands of customers or participants in mass child pornography distribution schemes. In addition, as of July 26, 2006, the Innocence Lost Initiative targeting children victimized through prostitution has resulted in 228 open investigations, 543 arrests, 86 complaints, 121 informations or indictments, and 94 convictions in both the Federal and State systems.

Fisher is working on the implementation of the Adam Walsh Act. We all know John Walsh, what a tragic story he has lived through and, as a result of it, has become a national leader, well-known throughout this country for his work in the protection of children. So she is working now to create the mechanism to fully implement the Adam Walsh Act, which was passed by Congress just recently to combat child exploitation, and the Department's new initiative targeted at protecting children from predators, Project Safe Childhood, another time-consuming and challenging activity.

Fisher serves as a key member of the Department of Justice Intellectual Property Task Force and oversees the Computer Crimes and Intellectual Property Section of the Criminal Division. Under Fisher's leadership, the Department has increased its prosecution of these cases and enhanced international partnerships in this area. It is important that we do operate internationally.

As Assistant Attorney General in charge of the Justice Department's Criminal Division, Fisher developed and implemented a strategic plan to focus and prioritize the mission of the Division's approximately 750 employees. This management plan has organized the Division around the following priorities and goals: Supporting the national security mission. Supporting the national security mission--that wasn't the No. 1 goal of the Department of Justice Criminal Division when I was a prosecutor. This is as a result of the leadership of the President and the Attorney General and Alice Fisher.

So the top goals are supporting the national security mission, protecting this country from attack, ensuring Government integrity, prosecuting fraud and corruption, ensuring market integrity. That is-- in the free market, the banks, financial communities, businesses, securities, making sure that there is integrity in that. They have a record of achievement. Combating violent crime is still a part of the duties, particularly gangs and drug trafficking and protecting against crimes on the Internet and crimes against children.

So this is a very fine, hard-working public servant who gives her every waking hour to trying to promote justice and protecting this country from attack. What she can say and what she can't say in response to probing and fishing expeditions from Members of Congress about meetings and conversations and top-secret security activities that she may be involved in is not her decision; it is really the Executive Branch deciding how much of these actions should be made public. So it is not her fault.

I submit to my colleagues that she wasn't involved in any of these issues that people are so hot about. She didn't set the policies. She didn't write the memos. She was lower down in the chain of command at that time. That wasn't her responsibility. She is being drawn into this now so that we can continue to have complaints about the efforts of this President and his team to aggressively find, identify, prosecute, and convict those who would threaten the people of this United States.

So I am impressed with Alice Fisher. She was a young, aggressive woman when I met her. She didn't have a whole lot of experience. I questioned her about that. But I could sense that she had the drive to be successful, to serve our country, and she has utilized every opportunity she could to further the interests of law enforcement and justice in America. I think she is a good nominee. In a different time, she would go through just like that; it would not be a problem. But here we are with an election coming up, and the theme here is that this administration is abusing prisoners and being mean to unlawful combatants and terrorists, and they are trying to maintain that theme and drag her into it. They shouldn't do that.

She needs to be confirmed. She needs to have the full authority of the office of chief of the Criminal Division of the Department of Justice. She will be

more effective if she has been confirmed and holds the office permanently. She will do a great job, I believe. Her record has proven that. I urge my colleagues to support this nominee.

Mr. President, I thank the chair and yield the floor, and I note the absence of a quorum.

Mr. President, what we are having now is a rehash of people's complaints about the war, and they are focusing it on the Secretary of Defense in a political season. We all know we will soon have an election. So, everything anybody wants to complain about with regards to the war on terror, that they are unhappy about regarding the difficulties we now face in Iraq, is now dropped on the head of the Secretary of Defense.

The President of the United States took his case to the American people in the last election. We heard these same complaints from these same people, and they made them all over the country, and the President of the United States, George Bush, won that election. He won it with a majority of the votes of the American people. For the first time in over a decade, a President has won the majority of the votes in this country.

Now unfortunately, that is not enough.

I would just say a couple of things I think are important. This Senate, after months and weeks of debate and discussion and hearings-- open hearings, secret hearings, briefings from the intelligence officers at lower rank, briefings from the CIA Director, from Defense intelligence--we came into this body and we had to do our duty. Our duty was to vote our conscience on whether to authorize military force in Iraq. That was a solemn duty. I do not think anyone here misunderstood the seriousness of that event. If they did, they are not very grown up because it was a grownup decision we were asked to make: whether we were going to commit our soldiers to military action against the Saddam Hussein regime, which had violated 16 U.N. resolutions. This regime had fired at our airplanes on a regular basis--we cannot forget that. And we were dropping bombs on him weekly and he was shooting missiles at our airplanes weekly. That had been going on for years. He was violating the resolutions, he was violating the weapons of mass destruction discovery and openness requirement that he had committed to, to the U.N.--all those things.

The situation was such that we, with many of our allies, gave him one last chance. He didn't take that chance, that one last chance to clear himself and demonstrate he had no weapons of mass destruction, and that is when we voted. There was no mystery about that.

The Secretary worked with GEN Tommy Franks, and GEN Tommy Franks approved and designed a military campaign that he believed would be successful. He moved with lightning speed and tremendous effectiveness, and it was a tremendously effective destruction of Saddam Hussein's regime in a time period far less than I would ever have thought possible and with a loss of life far less than I would have thought possible. It was a brilliant deal, and the Secretary of Defense, if you read GEN Tommy Franks' book, followed GEN Tommy Franks' decision, supported that decision and was praised by GEN Tommy Franks, the man who led this effort against Saddam Hussein and removed him from office.

Now what has happened? Many of the things that were predicted to happen didn't happen. We didn't have a humanitarian disaster. We didn't have to lose thousands or tens of thousands of soldiers in house-to- house fighting. We didn't have oil well fires. We didn't have a lot of things people projected. The people did welcome our soldiers, and they were happy to see the statue fall. You remember those scenes.

But look, we have difficulties now. There has been a persistent measure of violence in Iraq driven by a whole lot of forces. They are determined and striving every day to not allow a good and decent government to be formed and be sustained in Iraq. We have invested a lot of time and effort in that. It is tough.

I have a nephew there and the son of a good friend there in the Marines, in tough areas right now. My nephew is in the Marines. I have a sense for the effort and courage of our soldiers. It is a tough duty, and we are in a very tough struggle.

The struggle moved to Baghdad. An effort has been made to destabilize Baghdad and the Government there. We moved to counter that. That is the way, American people, it is always going to be when you deal with an enemy who has an ability to think. When you move in one direction, they will counter. When they move in another direction, you have to counter that. That is the way it will be. It is not a failure when an enemy moves in one direction for you to counter that and alter your tactics. In fact, I expect any good military commander would be altering tactics on a regular basis to stay one step ahead of the enemy. That is what we are in, and it is a tough battle.

I, therefore, ask, first and foremost, does the resolution suggest--I say the

resolution. It hasn't been offered because it is not appropriate, as I understand it, and it would not be appropriate to be offered. But any resolution to change the Secretary of Defense, is that going to help our soldiers in Iraq? Is that going to help them be successful? Is it going to make their lives better? Will it help us win this war, which we must do? We need to ask ourselves that.

It is ironic, I have to say, that some of the people who complain about Secretary Rumsfeld not having enough troops voted consistently for the reduction of the number of troops we had by 40 percent when President Clinton was in office.

I see Senator McCain here. He has been a strong supporter of defense. He has been concerned about the number of troops and said so consistently. But there are many in the Chamber today who are saying we do not have enough troops and at the same time saying they must be withdrawn ahead of time; we ought to pull the number of troops down. How ironic is that.

They say Secretary Rumsfeld doesn't listen to the generals. I say he has listened to the generals.

I will be pleased.

Unfortunately, I think the Senator's suggestion is correct. We are on the eve of an election. We have a motion here, a suggestion and an attack on the Secretary of Defense who is leading a war effort.

Let me ask the Senator from Arizona, who served in the military courageously and who has been actively engaged in trying to help us be successful in this war, is he troubled that the resolution and remarks that are made, even recognizing we are in an election cycle, could be such that they would add to the risk and difficulties our soldiers face?

I couldn't agree more. I think the Senator from Arizona has made a tremendously important point. This President is committed to a successful outcome in Iraq. He has chosen his Secretary of Defense, and his Secretary of Defense is his person in whom he has confidence, and he does not believe changing that Cabinet Member at this point in time would help him be successful in that effort. I agree. But regardless of whether you and I might agree, it is his call. He was elected after a full debate over the wisdom and the conduct of the war in Iraq. He was reelected. I think the American people, therefore, affirmed him and expect him to choose the type people he believes will be successful.

I think the Senator makes a good point.

I would just share a couple of thoughts before my time is up. To repeat, we made a decision in this body. A majority of the Democratic side and a large majority if not all the Republicans voted to authorize this military action. Many things went far better than we could have expected. But we are now facing very difficult, persistent violence that places at risk our soldiers, places at risk the new Iraqi Government, and it is something that should not be minimized. This is a very tough time. But we have to be successful.

I know my colleagues have filed a motion and had quite a number of votes on one or more resolutions to set a date and just withdraw, regardless of what is going on in the country--to just withdraw.

Just a few weeks ago, just before we recessed on August 3, we had an Armed Services Committee hearing on Iraq. Testifying before that committee was General Abizaid. General Abizaid followed Tommy Franks as CENTCOM Commander. That region of the world is under his control. We had just voted overwhelmingly to reject a pullout of the troops in Iraq without regard to the status of the military situation in Iraq. I asked him a question at that hearing.

I see the Senator from Alaska is here. I know he has had experience in these issues. He served our country in combat.

This is the question I asked General Abizaid:

What kind of reaction, what kind of impact would there be

with regard to the Islamic extremists in the Middle East? And

you are a student, General Abizaid of that region. You spent

time in that region as a young person. You speak Arabic and

you have been with us, conducting this Iraq war, virtually

from the beginning. What kind of impact would result if we

were to precipitously withdraw? Would it mollify the

extremists? Would it make them say, well, the United States

is a nicer place now? We don't have to be so aggressive now?

Or would they likely be emboldened, empowered, and more

aggressive?

And just like that, General Abizaid said:

Emboldened, empowered, more aggressive.

I said:

In your opinion, would a failure in Iraq embolden and

empower these radical extremists?

Yes, it would.

I asked again:

And, in your opinion, would setting a fixed date,

regardless of the situation in Iraq, for a withdrawal,

embolden or empower the extremist forces?

Embolden.

Then I asked General Pace, Chairman of the Joint Chiefs of Staff, Marine Corps general:

General Pace, this is a matter we've discussed.

Unfortunately, it's had very little support in the Senate but

there is a political election coming up and people float this

idea that we should just pull out. You've heard General

Abizaid's comments. He's been in the region for years and

been leading this effort. Would you agree with his comments?

General Pace, Marine Corps general, Chairman of the Joint Chiefs of Staff, said:

Sir, I agree with each of General Abizaid's responses to

each of your questions.

I would, briefly.

I won't be speaking but just 3 or 4 minutes.

Then he basically volunteered, he said:

Senator Sessions, sir, what I'd like to say is that the

troops that serve in the region are not afraid of what's

happening there. They would be afraid of what would happen if

we just precipitously left.

I would carry it a little bit further because I was talking to some soldiers. Basically, what they told me was they were worried the politicians wouldn't have the gumption to stay the course and be successful after we have committed so much of our resources and lives, when we have a new government

that has been up less than 6 months, trying to get itself established, and then we send signals with this kind of debate that we might just up and leave.

Fortunately, when we have had the votes, they have not been there. It is not helpful, in my view, to have this kind of debate. We have had it before. We have had our votes. The American people have elected the President again when he stated exactly what he intends to do to protect this country from the regimes and the terrorists that are gathering in Iraq.

We have an outstanding Secretary of Defense, a man who has the confidence of the President, a man who has listened to the generals.

I was on an airplane, a C-130, flying into Baghdad with General Abizaid. We could hardly hear anyone talk on the planes. Just the two of us were sitting on one side of the aircraft. He explained to me why he thought we should not send more troops there 2 years ago. He testified recently at the hearing that he does not believe we need to send more troops.

Is Secretary Rumsfeld dictating this policy or is he listening to the general? That is what they have advised him; that is what he is doing. He is following the advice of one of the most brilliant generals in the Army, General Abizaid, the commander in that region.

If we will continue to follow that advice, if we will show strength and courage, if we continue to alter our tactics to meet the changing tactics of the enemy, this mindless violence can be defeated and a good and decent government in Iraq can be established. We have invested so much in that effort.

We voted as a Congress to undertake this action. We need to see it through successfully. We can do that. We just do not need to lose our nerve. We must win this war.

I yield the floor.

Mr. President, I wish to express my appreciation to the Senator from Oregon for his thoughtful and careful analysis of the tip credit issue. I have heard a lot of things said about it recently, and a lot of them are quite off base, and it is good that we hear the matter carefully discussed and explained.

Amendment No. 4844

Mr. President, I call up amendment No. 4844.

That would be fine.

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

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

Mr. President, I offer this amendment to restore the military funding request of $77 million under research and development for the Conventional Trident Modification Program. The Quadrennial Defense Review--that is, the 4-year review of the military's world strategic plan--made this finding:

We need to make greater progress in fielding prompt,

accurate, nonnuclear global strike capabilities, and that we

also make further modest reductions in a strategic nuclear

force.

So they have looked at that nuclear posture review and as a result have concluded, as General Cartwright and Admiral Giambastiani, as vice chairman of the Joint Chiefs of Staff, in a letter to Senator Inouye, that these capabilities as requested in this request for the Conventional Trident Modification fulfill the military's need for a prompt strike weapon. So this is what they requested. The Conventional Trident Modification Program is designed

to demonstrate the feasibility of using existing Trident super submarine-launched ballistic missiles with nonnuclear warheads to provide the President an important strategic capability for countering serious threats to the United States and to do so in time-urgent situations. It will use an inert warhead--someone said it could even be concrete--and a warhead traveling at the speed that this missile travels would have sufficient impact with an inert warhead of nonexplosive capability to meet the needs of the military.

So while the Senate-passed National Defense Authorization Act for fiscal year 2007 fully funds this effort, the Senate Defense appropriation bill that is now before us would eliminate all funding for this critical program. According to the report accompanying the appropriations bill, the Defense Committee:

Believes that fundamental issues about the use of this

weapon must be addressed prior to investing in this effort.

The committee also believes that other potentially less provocative alternatives have yet to be considered, it says.

I will try to address specifically these two concerns, but first allow me to remind my colleagues that this issue was thoroughly considered and debated by the Armed Services Committee prior to and during its markup of the Defense authorization bill. The Strategic Forces Subcommittee, of which I am the chairman, held a hearing on this specific issue--the global strike capabilities--during which we discussed it in depth. During our markup, moreover, the Armed Services Committee adopted an amendment proposed by the Democratic members of the committee that would limit spending on the CTM beyond $32 million of research and development pending the submission by the Defense Department of a report by the Secretary of Defense and the Secretary of State addressing the military, political, and international issues associated with the conventional Trident missile modification.

But I would argue that this capability is just too important for our Nation to allow another year to slip by without proceeding at least with research and development. To accommodate the concerns of some of my colleagues, the amendment before you would restore only the research and development funds associated with the CTM Program. Not included is the $50 million requested by the Department of Defense for acquisition activities related to the CTM Program. I believe this was a reasonable compromise, an effort to gain broad support for this new system. I believe further that to provide R&D funds to demonstrate the concept, while withholding procurement funding until Congress has an opportunity to review the required report, meets and goes beyond, really, the needs and concerns that our colleagues have raised.

To speak directly to the matter, why do we need a submarine-launched ballistic missile that can strike virtually anywhere on the face of the globe with precision, with a conventional warhead, within 30 minutes or less? Former Secretaries of Defense Harold Brown, under a Democratic administration, and James Schlesinger, under a Republican administration, said it well in a recent op-ed article they wrote together, the two of them--Secretaries of Defense, men of wisdom and experience. They said:

In a world in which terrorist groups may have access to

nuclear weapons it is imperative to give future U.S.

Presidents more options to prevent nuclear attack.

I think that says it all. Indeed, it is likely that by the time this system is ready to be fielded, President Bush will not be here to utilize it, but his actions, and our actions as a Congress today, can provide future Presidents with these needed options. To be sure, we are not dealing with an academic debate. It was reported in a 9/11 Commission report that on August 11, 1998, a cruise missile attack against bin Laden, who was then hiding in Afghanistan, missed its intended target ``by a few hours.'' How might the course of history have been altered that day if the President had at his disposal a prompt global strike capability?

In another example, it was reported by the press that the initial attack against Saddam Hussein, at the outset of Operation Iraqi Freedom, took some 4 hours to reach the target using Stealth fighters and sea-launched cruise missiles--ample time for the enemy to escape.

In addition to targets in the war against terrorism, one can imagine other important uses for a conventional weapon that can strike targets across the globe in minutes, for example, destroying a ballistic missile armed with weapons of mass destruction as it is being prepared to be launched against the United States; intercepting a weapon of mass destruction which is being loaded into a container ship heading for a U.S. port; or disrupting key enemy command-and-control facilities so that they cannot execute an attack plan; thwarting enemy moves to seize strategic advantage at the outset of some crisis.

It is true that some of these targets could be attacked using existing strike forces such as cruise missiles, bombers and precision- guided weapons, fighter aircraft launching from carriers or perhaps special operations forces. But each of these alternative strike platforms carries risks to U.S. personnel, require complex planning and support infrastructure, and cannot reach their target in minutes. It is hours.

CTM is indeed a niche capability. But the regrets of not having this option are just too high to contemplate, given today's security environment. Wouldn't we want any President to have this capability?

I believe all can agree on the strategic value of the conventional Trident program. Let me address what I understand to be the principle concerns of some of its critics, which are that the launch of a conventional Trident missile might be mistaken for a launch of a nuclear-armed missile and prompt a catastrophic nuclear response from some third-party nation that believes it is under attack.

The Defense Department has taken seriously this concern. As a matter of fact, the first thing they have done, and decided to do from the beginning, is to be absolutely open to the world about the capability they have in these missiles and their plans to convert a nuclear missile to a conventional missile; but they have, in addition, put in place a comprehensive approach for mitigating this risk.

But before examining these specific steps, I ask my colleagues to look more carefully at the fundamental underlying concern. Would a nuclear power with ballistic missiles, such as China or Russia, perceive the launch of one or even two ballistic missiles, as an attack against its territory, starting a nuclear war? I think not. Even during the darkest days of the Cold War such an attack by a single missile was considered implausible. People always talked openly, among the defense forces of all these nations, about the situation in which a single missile might be launched by mistake. It is well known if people are going to kick off a nuclear war and have a number of missiles, they would launch their entire fleet, hundreds of missiles at a time, trying to catch the Nation's adversary unaware and perhaps destroy their retaliatory capability on the ground. All that was the strategy involved in Mutual Assured Destruction--a thing, basically, of the past, frankly, and thankfully it appears to be so. But we have to be concerned and cannot forget the lessons of that period.

But let's take this further. Very few States can currently detect a launch of a missile and track the trajectory of its warhead. Very few nations have the capability of detecting our launch. The country that has the most capability in this regard would be Russia, but we are told by Defense officials that once the Russians detect a launch, their system capability is such they will know it is not aimed at them. They will know where it will land, and they will know it poses no threat. They are not going to kick off a war over this.

Assuming the above context is not enough to assuage our concerns, the Department of Defense has in place a comprehensive strategy to mitigate risks posed by the misperception or ambiguity problems. One of the measures that they plan is advanced notification to leaders of select States. For example, the United States maintains a robust set of communication links between U.S. leaders and their Russian counterparts and military counterparts all over the world. We have that capability and, in fact, communicate on a

fairly frequent basis, and additional communication links with senior Russian officials are planned, such as the Joint Data Exchange Center for shared early warning. In this case, Russian and U.S. officials would sit side by side in a jointly staffed early warning center. Isn't that a good step forward?

What do we have as a strategy for the United States today? We are reducing significantly the number of our nuclear warheads, and we are creating a center for early warning, where our military people sit down side by side to further eliminate any possibility of a mistake. There are political exchanges and military-to-military talks with Russians and other nations to inform them of our plans for the CTM. These efforts are already underway. We are right upfront with the military leaders around the world about what we are developing and why we are doing it.

Operational measures, such as distinctive command and control procedures for the conventional Trident missile, would differ from procedures for nuclear-armed Tridents, and potential visits and inspections to build confidence through transparency are planned. Our Defense Department talked openly with other defense departments. We will take every effort to make sure there is no risk from this.

In summary, the risk of a country misinterpreting the launch of a conventionally armed Trident missile as a nuclear attack are low to nonexistent. The Department of Defense risk mitigation strategy will further eliminate that risk--indeed, eliminate it totally. In this post-September 11 world, we need strategic capabilities to promptly thwart dangerous threats to the United States, where time is of the essence and the regret of not acting is too high to imagine. The conventional Trident option provides our leaders the capability to go after high-value targets where access may be difficult or where other U.S. forces are not present. It is a capability that will be reserved for extreme national emergencies. It is a capability we need today. It is an option any President can have if we move forward and should have.

I close by asking my colleagues to think carefully about this amendment. It is a very important issue. I can understand that people might have raised concerns. But what I want to say to my colleagues is we had a hearing on this. We had General Cartwright and others testify. General Cartwright is the Commander of the Strategic Command. This is under his direction. He is a very impressive general. We asked him tough questions about all these issues, and he was quite forthcoming and open about it. He answered every single one of them.

Our Armed Services Committee has voted this out in a compromise fashion to guarantee even further study before the system goes to full development. But we do not need to waste another year. We do not need to go another year without the future President of the United States having the capability that we have the power to give him, to launch a nonnuclear strike anywhere in the world and hit a target within 30 minutes. It is the right thing to do. It is very important for our Defense Department. They strongly support it as part of their 4-year Quadrennial Defense Review. We have letters from General Cartwright, Vice Chairman of the Joint Chiefs of Staff, and others supporting this matter, and the Secretary of Defense, Donald Rumsfeld. Indeed, Secretary Rumsfeld said in his letter, just a few days ago:

The Department [of Defense] strongly supports this

amendment. Failure to fund this program would delay a

capability we need now to respond promptly and precisely to

time-sensitive, high-value targets anywhere in the world.

This capability is within our grasp. It will work. It is simply a matter of developing the warhead and doing training with it. But the capability we have is such that these missiles can hit the most precise targets within 30 minutes anywhere on the globe.

I strongly urge my colleagues to support this amendment.

I yield the floor.

I appreciate my colleague so much. I express my appreciation to Senator Nelson of Nebraska for being a cosponsor and for his work on the Committee on Armed Services. I failed to mention that Senator Chuck Hagel of Nebraska is also a cosponsor of this amendment.

We have so many ideas about how to defend America that we should not disrespect others who may disagree every now and then on how something should

be done. I respect Senator Inouye. He is a patriot and an expert on defense. I have seen his leadership on national missile defense, which is seen today as a very wise investment. If a single missile moved toward the United States for the first time in history, we now have some capability to knock that down. In fact, in a few years, we will have a powerful capability to knock that down, but we have some capability right now. I believe we could successfully knock down one of those missiles.

I will share a few thoughts. My colleague, Senator Reed, talked about the Russians, who had a meeting with our people. The Russians said they might not like it if we launched a missile like this. If we had this capability, they might not like it.

It is interesting that we are openly talking with them about the capability, and letting them know what our plans are. The experts tell us they could tell, shortly after a launch, whether or not a missile was aimed at them. Certainly we are not going to launch World War III, no nation would, if a single missile was aimed toward them. We need to think this through.

With regard to the review and the studies, my colleague, Senator Reed, on the Committee on Armed Services, and I serve together. He may have misunderstood what this amendment would do. The authorization bill we passed that authorized spending on this missile system required a study. It said that study must be completed and no more than $32 million could be spent until it was completed. It would require not only the Defense Department to participate but the State Department to participate. That was to allay the concerns being raised.

That language is not undermined by this amendment. This amendment does not refer to it. It would be absolutely mandated by the language in the Defense authorization bill. We certainly want that report. There is no attempt, I say to my colleagues, to undermine that requirement. That requirement remains in place.

The effect of failing to fund this program, a program that was based upon a need identified by the formal 4-year Quadrennial Defense Review of the Department of Defense, a study was made to identify how best to meet that need. This conventional Trident was decided to be the best way to have that need met in short order. That is why the Defense Department has asked for it. They have never been secretive about it. They have been absolutely open about it. They have made sure they have gone the extra mile to carry out a series of steps that would make us not mislead any country. It is the right thing to do.

Our submarines carry 24 nuclear missiles today that can hit a target around the world within 30 minutes. I have a son-in-law in Hawaii who is an officer on a nuclear submarine. I am very proud of him. My daughter is in Hawaii today. I know a little bit about those submarines. They carry nuclear weapons.

We don't want the President of the United States to have a real serious threat to America existing for a short period of time, and the only response he or she may have is a nuclear weapon. We want them to have extra options, an option to use a non-nuclear weapon.

There was some suggestion by Senator Reed, almost like he is afraid for us to have this capability. We have the capability now to launch cruise missiles on shorter range targets where there is more time. We don't go willy-nilly launching cruise missiles. This is a non-nuclear weapon. It would do no more damage than a cruise missile would, maybe less if it is not an explosive warhead. I don't see the danger.

I know the concern. We have had a hearing on it. We have talked about it. The Defense Department, the Chairman of the Joint Chiefs of Staff, and General Cartwright, Strategic Commander, one of the most able officers in the military, one of the most respected, say we need this. They have asked us and written us to do it this year. It is affordable. It will use existing missiles. It will be a missile that now has the capability to launch and is designed to carry nuclear weapons. We are going to ``non-nuclear'' it and make it a conventional weapon. It is very much needed.

A former Secretary of Defense, Harold Brown, under Jimmy Carter, and former Secretary of Defense, James Schlesinger, under President Reagan, have both asked for this to be done. They said, in an op-ed they voluntarily published, we need this capability.

I urge my colleagues to think this through. If we authorize it, additional studies will be required. My colleagues, please know when you vote on this you are not building and deploying the system but simply doing the research and development. We will have another step in between with the full extra study we have asked by the Defense Department before we make a final decision to go forward.

That is where we are. It is a reasonable approach, an approach that has listened to the concerns of some of our colleagues and tried to respond to those in a way that keeps this on track. We don't want to end up 2, 3, 4 years from now not having done this, leaving the President of the United States in the future without the capability, without an option to protect the people of America.

I yield the floor.

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

Mr. President, I have such respect for Senator Inouye and Senator Stevens, but I do want to mention a couple of things that are important for my colleagues. This is a high priority for our military leaders. They believe it is critical to have this capability.

As former Secretary of Defense Harold Brown said, along with James Schlesinger:

The detonation of a nuclear weapon in the United States by

a terrorist group would be an unprecedented disaster. It is

essential [essential] that Congress approve the funds for

this program. Moreover, a small reprogramming action in

the current fiscal year could accelerate the missiles'

initial deployments. In a world in which terrorist groups

may have access to nuclear weapons, it is imperative to

give future U.S. presidents more options to prevent

nuclear attacks.

They go on in quite a long article and deal with this.

My colleague, in talking about this, mentioned that: Well, this could be recklessly used. But any weapon we have could be recklessly used. Some have said President Clinton was not wise when he launched a cruise missile into the Sudan. I defended it when he did it. But he made that decision. He made that decision. That is a conventional weapon.

The only difference, really, colleagues, in a conventional Trident launch and a cruise missile launch is it is quicker. We talked about there are multiple hours many times, they are not as fast, they have to be launched often from an aircraft or from ships that are not readily available, they are not readily available to be launched. So we are talking about delays.

This would allow us the capability of launching a nonnuclear weapon, much like our cruise missiles and Tomahawk missiles, to hit a precise target that could represent a deadly threat to the people of the United States of America.

It is unbelievable, really, that we have this capability. Right now the President can do it, but the only missiles he has that he could launch that could hit a target within 30 minutes are nuclear missiles. It would be unlikely we would ever launch one nuclear weapon like that that I can imagine. It could happen, I guess, but it certainly would be cause for the greatest anguish and concern, and it would be unlikely to ever be done.

So I am just saying this is the plan that our experts, who are working on strategic issues in the Department of Defense, believe gives the President a capability and gives the Defense Department, our military, a capability that can help protect America with a conventional weapon. Maybe it will be an inert warhead, inert substance in what would be the warhead, that it is not even an explosive. And it could strike a target around the world that could save thousands and thousands of lives, tip the balance of some sort of military conflict.

So that is where we have reached some disagreement. I am very respectful of the chairman and ranking member of this Appropriations Committee. They have defended America personally, putting their lives on the line for our country. They have, for many years, preserved, protected, and defended this country through very able Defense budgets. Many times it was not so popular. But they have been there, and they have fought for them. And we now have the finest military the world has ever known. I salute them for it. We just have a disagreement on this single matter. I think it is important or I would not raise it.

I urge my colleagues to consider it.

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

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

Mr. President, there are 2 or 3 minutes before the vote, and I will take a brief minute to summarize this matter.

The Secretary of Defense personally has written us and asked that we allow the Department to go forward with this conventional Trident missile capability saying:

Failure to fund this program would delay a capability we

need now to respond promptly and precisely to time-sensitive,

high-value targets anywhere in the world.

This has also been the subject of an op-ed by former Secretary of Defense Harold Brown, who served under Jimmy Carter, and former Secretary of Defense James Schlesinger, who served under Presidents Nixon and Ford and served in President Carter's Cabinet also. They say we need this now.

It would not deploy this system but would allow research and development, and requires, before any more than $30 million is spent-- before any more than $30 million is spent--that the Defense Department and the State Department must complete a study and present that to Congress before we go forward.

We do not need to delay. If we wait another year or 2, we will allow another year or 2 or 3 or 4 to go by without the President having the capability within 30 minutes to hit any target on the globe with a nonnuclear weapon.

The concern over misinterpretation of the missile launch intent has been dealt with openly and directly by the military. They have talked with foreign nations about it. We will make every effort to ensure that does not happen. And it, indeed, as I have explained earlier, should not be a problem, as these former Secretaries of Defense stated.

I thank the Chair and yield the floor.

Mr. President, I want to take a minute to let my colleagues know what the chairman of the Finance Committee, Senator Coleman, and I have discussed with respect to the consideration of a particular section of the Pension Protection Act of 2006--Section 1220. Namely, that section would establish additional standards in the Internal Revenue Code for tax exemption for credit counseling organizations.

The chairman was the genesis of these provisions, and it is through his hard work and persistence that they were ultimately included in the bill we are currently considering. The credit counseling reform language will go a long way toward ensuring that the hundreds of bona fide tax-exempt credit counseling organizations operating today across the country that serve an invaluable role in helping consumers understand, deal with, and manage their credit and debt problems will be able to continue as tax-exempt under Internal Revenue Code Section 501(c)(3), with all of the important obligations and benefits that this status entails. Ensuring the continuation of tax-exempt credit counseling organizations that meet the high standards set by the Federal Tax Code, along with standards set by state law and by Federal agencies such as the Federal Trade Commission and the U.S. Department of Justice, will mean that the necessary counseling, education and debt management plan services will be available to all financially distressed consumers who need them for many years to come. It also means that there will be sufficient tax-exempt credit counseling organizations available to fulfill the pre-bankruptcy counseling mandate of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. As for the purpose of Section 1220, I would like to turn to my colleague, Senator Coleman, who--as chairman of the Permanent Subcommittee on Investigations--conducted an investigation into abuses in the credit counseling industry.

Mr. President, after working together with Senator Feinstein, I am pleased to introduce the Online Pharmacy Consumer Protection Act of 2006. I have worked to take the lead in protecting consumers specifically as it relates to the sale and distribution of controlled substances and prescription drugs over the Internet and holding liable those who do so via unregistered online pharmacies. I commend Senator Feinstein for her leadership on this issue and look forward to working with her to pass this important piece of legislation.

This bill would prohibit the distribution of controlled substances and prescription drugs by means of the Internet without a valid prescription and provides for the legitimate online distribution of those drugs in certain circumstances. Two weeks ago, Attorney General Gonzalez testified that sale and distribution of ``controlled pharmaceuticals on the Internet is of great concern,'' since it ``gives drug abusers the ability to circumvent the law, as well as sound medical practice.'' This bill would go a long way in addressing the concerns expressed by Attorney General Gonzalez by reigning in a practice that has gone unregulated for far too long.

Recently, there has been an explosion in the number of online pharmacies that provide prescription drugs--both controlled and noncontrolled substances--to users without valid prescriptions. Most illegal drug abuse involving prescription drugs is associated with Internet purchases, where users are given a prescription without ever seeing a doctor. The most prominent abuse occurs with regard to controlled substances such as hydrocodone, Valium, Xanax, OxyContin, and Vicodin. A 2002 study reported that nearly 15 million adults admitted to abusing prescription drugs, with 2.4 million new abusers in 2001 alone. Currently, there is no way to police this illegal activity.

The ease with which consumers may purchase controlled substances and other prescription drugs from online pharmacies without a prescription is shocking. Often consumers can obtain a prescription from physicians employed by the online pharmacy by simply filling out a brief questionnaire on the pharmacy's Web site. Most online pharmacies have no way to verify that the consumer ordering the prescription is actually who they claim to be or that the medical condition the consumer describes actually exists. Thus, drug addicts and minor children can easily order controlled substances and prescription drugs over the Internet simply by providing false identities or describing nonexistent medical conditions.

In 2001, Ryan Haight, a California high school honors student and athlete, died from an overdose of the painkiller hydrocodone that he purchased from an online pharmacy. The doctor prescribing hydrocodone had never met or personally examined Ryan. Ryan simply filled out the pharmacy's online questionnaire and described himself as a 25-year-old male suffering from chronic back pain. Ryan's death could have been avoided.

I believe that Congress is in the best position to help prevent teenagers from purchasing controlled substances and prescription drugs from online rouge pharmacies. I also believe that Congress has the ability to help prevent adult prescription drug abuse by making it harder to purchase these drugs online without a valid prescription.

The Online Pharmacy Consumer Protection Act would provide criminal penalties for those who knowingly or intentionally--unlawfully-- dispense controlled substances and prescription drugs over the Internet; give State attorneys general a civil cause of action against anyone who violates the act if they have reason to believe that the violation affects the interests of their State's residents; and allow the Federal Government to take possession of any tangible or intangible property used illegally by online pharmacies.

The Online Pharmacy Consumer Protection Act would also require online pharmacies to file an additional registration statement with the Attorney General and meet additional registration requirements promulgated by him/her; report to the Attorney General any controlled substances or prescription drugs dispensed over the Internet, and comply with licensing and disclosure requirements.

The Online Pharmacy Consumer Protection Act of 2006 takes a substantial step toward plugging a loophole in our drug laws by regulating the practice of distributing controlled substances and prescription drugs via the Internet. By holding unregistered online pharmacies accountable for their activity, we are ensuring that those who seek to purchase prescription drugs by using the Internet are protected from those engaged in reprehensible business practices.

Mr. President, once again I thank Senator Feinstein for her leadership in addressing this serious issue. I commend this bill to my colleagues for study, and I urge them to support this important legislation.

Mr. President, what is the pending matter?

Mr. President, I will not speak on an amendment at this time, but if others do not object, I would like to call up amendment No. 4775 and ask unanimous consent that the pending amendment be set aside.

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

I yield the floor.

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

Mr. President, I had previously offered and called up amendment No. 4775, and I ask that Senator Kyl of Arizona be made an original cosponsor.

Mr. President, a few weeks ago, on May 17, by a vote of 83 to 16, we approved my amendment to mandate the construction of at least 370 miles of fencing and 500 miles of vehicle barriers along the southwest border of the United States. That was a very strong vote. It represented the request of Secretary Chertoff of the Department of Homeland Security. It was the amount of barriers and construction that he felt was necessary to help him create a secure border. I believe this Senate meant it when we voted to do that.

When the vehicle came forward on Homeland Security, we failed to fund this project. I think it left this body in an embarrassing position, telling the American people we are for barriers at the border, we are for meeting the request of the Secretary of Homeland Security, but, by the way, we are not going to put up any money to fund it.

I know there were reasons that some felt it couldn't be afforded under the amendment process, which gave the appropriators a requirement to find it within the $30-billion-plus Homeland Security bill, but we are now in a position where we feel there are funds available that we can utilize to make this step.

We believe this is a germane amendment to the Defense bill. The National Guard is going to be a part of our border security, and the National Guard does have the authority to enter into construction and other engineering projects as part of their directive to assist in securing the border.

That is where we are today. I think this is an appropriate amendment. I see my colleague, Senator Kyl from Arizona, is here. I would say it has been my honor to work with him quite a number of years--ever since I have been in the Senate. There is not a single Senator here who has ever spent anything like the number of hours he has spent in advocating for a legitimate, sound method of border security, nor has anyone voted more consistently than he to establish that. I am glad he is a cosponsor.

Senator Kyl understands this process. He is one of the leaders in the Senate. I am glad he feels this is an appropriate way we can go forward.

I thank the Chair and yield the floor.

Will the Senator yield for a question?

I had a call several months ago, before I offered the amendment, from Congressman Duncan Hunter of San Diego, who chairs the House Armed Services Committee, and he shared with me his positive view of what the San Diego fencing had meant for that area. Crime had gone down. Economic growth had occurred on both sides of the border--it was so positive. I know there is fencing in Arizona, and it is not the best kind, not the most attractive. As was said, it is not something you can see through--landing mats.

But based on the Senator's experience and many years of examining what has happened at the border, is he convinced and would he share his thoughts about how this could be helpful in the overall view of creating a border in which the law is followed and we have security?

One more question, if I could ask the Senator from Arizona. Would he share with us and the American people some information he might have about the size and scope and numbers of people that are crossing in the Arizona area? I know he cares about that. That is one reason the Senator feels so strongly about it. But I am not sure a lot of people understand the scope of the problem. He has already shared that fencing is a component of fixing the problem, but would the Senator share with us the scope of the problem?

I thank Senator Kyl. I yield the floor.

Mr. President, I thank the chairman for his interest and support. I know he indicated we needed to work on it the last time we voted on it. Perhaps I would like to speak a little more on it. And I think I would ask for a rollcall vote.

I thank the Chairman.

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

Mr. President, I would like to share a few remarks

about the amendment I have offered, No. 4775. It is to actually fund the border barriers and fencing that we authorized by an 83-to-16 vote just a few weeks ago, on May 17. This Senate said that is what we wanted to do. Unfortunately, when the more appropriate time came to fund it, we failed to have the money to do it.

I think there is a great deal of cynicism among the American people about Congress's commitment to actually creating a lawful system of immigration for America. They are not only cynical, but they are determined to see to it that Congress does. We are the vehicles for the American people to accomplish national goals of importance.

As a person who had been a law enforcement officer for many years involving Federal law, it is just heartbreaking to see, with regard to immigration, law made a mockery. People have every right to be upset with us, upset with the President--this President--and previous Presidents, previous Congresses.

Twenty years ago, in 1986, we developed a system that was supposed to work to deal with immigration. We gave a one-time amnesty to several million people. We promised we were going to make the system work in the future. And we never funded anything that would work. That is undisputable. It just cannot be denied by any person, I do not think, who would look at the situation as it has developed since 1986. There was a promise to do something. That promise was not fulfilled. So we do not want to head down that road again.

I think the House of Representatives is correct. Let's make sure we follow through this time. We have a credibility gap. We have a problem. People are not confident we are going to do it. Indeed, money gets tight around here. We spent $30-something billion on homeland security, but we could not find $1.8 billion to fund the fencing we voted to authorize and that DHS wants--fencing is a one-time expenditure that would reduce the number of Border Patrol agents, reduce the number of people who attempt to come in, and reduce the overall cost in the long run of making the border secure. But we did not do it. Why not? Well, those are the kinds of questions we are dealing with.

Now, the President has done some things that indicate he is committed to border enforcement. On July 25, Border Patrol Chief David Aguilar and National Guard Bureau General Steven Blum held a press conference on Operation Jump Start. That is where the National Guard is helping us at the border, as the President requested that they do. Chief Aguilar and General Blum explained: The National Guard is assisting them--the Border Patrol--with their ``tactical infrastructure so they can be more effective; . . . better roads so they can move along the border laterally . . . '' You have to be able to move along the border. You cannot have people elbow to elbow trying to stop people coming here illegally. When you see people come, you have to be able to move laterally along the border. And quote: ``fences and lighting and sensors.''

So that is what the National Guard is doing.

Now, yesterday, on August 1, we received a letter from Ralph Basham, the Border Patrol Commissioner, and Paul McHale, Assistant Secretary of Defense, announcing the fulfillment of President Bush's promise to deploy 6,000 National Guardsmen to the border by August 1. He met that goal. This is a good step. It is not the solution. They are not allowed to participate as a law enforcement agency. They have a lot of restrictions on them. But it is an assistance, and it is also part of a signal to the world that a wide-open border no longer exists, that we are taking steps to maintain security at our borders, like most nations of the world strive to do.

The letter describes how 6,199 soldiers and airmen are now working in four border States. One of the capacities they are serving in is ``forward deployment,'' which includes ``engineering and other efforts.'' This refers to the National Guard's role in building tactical infrastructures--roads and fencing.

So the National Guard is already charged with helping build the tactical infrastructure needed on the southern border. But they just do not have enough money to build what the Senate authorized: 370 miles of fencing and 500 miles of vehicle barriers that are less expensive but at least keep people from driving across the border in their vehicles.

So the amendment we have before us now, and the vote we will have, will finally appropriate the funds that will build fencing on the border. This is a real vote. What we often do in this Chamber is authorize expenditures. We authorize programs to be undertaken that will serve some good purpose. But if the appropriating committees and the Senate do not get around to actually funding those authorized activities, they never occur.

This is an appropriations bill, and it is a bill that has real power to fund a fence, in this case. So it is a real vote.

The language of the amendment is simple. We take the amount of money already in the bill to fund emergency National Guard activities and increase that money by the amount needed to construct the 370 miles of fencing and 461 miles of vehicle barriers on the southern border. Because 39 new miles of vehicle barriers were already funded in the Senate-passed Homeland Security bill we moved some weeks ago, we only fund 461 miles of vehicle barriers with this amendment.

Of course, the number of miles of barriers and fencing is what was requested by the Secretary of Homeland Security, Mike Chertoff, to the Congress. It is what he stated he needed to be effective on the border.

It is also important that we send that signal to the world that there has been a change in policy. We can deny we had a policy of open borders, but in reality we basically did. We have had an open borders mentality, so people around the world have received a message; and that is, if they are determined and if they come to our border, they can figure out a way to get across. That has been happening. We do not need to send that signal. We need to send a signal that the open borders time is over by passing this amendment. It is not a bottomless pit of costs. In fact, these barriers are one-time costs, but they will help us have good enforcement with fewer agents for decades to come. The net result will be that we will be able to save money. It will also save money in its signal capacity in that I believe we are going to have fewer people attempting to violate the law, as a result of a clear commitment to use the National Guard, fencing, increased Border Patrol, and also detention beds and deportation activity.

We are not playing games. The American people have every right to be dubious and concerned about the commitment of this Congress to follow through. However, I believe we can follow through. This is a test for us. I believe we will be ready to pass the test.

The cost to construct these miles of fencing and barriers will run between $1 and $3 million per mile for fencing, based on whether the military constructs the fencing or they use private contractors, and they are authorized to use contractors that they supervise, and $1.4 million per mile of vehicle barriers. The total construction cost for these miles will be less than $2 billion. That is not a small amount of money, but it is a manageable amount.

In a budget that spends over $900 billion a year, we ought to be able to find a couple of billion dollars to follow through on a commitment we made and the commitment the American people expect us to fulfill.

Fencing is a proven approach. With the establishment of the San Diego border fence, crime rates in San Diego have fallen off dramatically. According to the FBI crime index, crime in San Diego County dropped 56 percent between 1989 and 2000, after the fence was built. This is a whole county. It was a huge lawless area. Congressman Duncan Hunter, chairman of the House Armed Services Committee, lives in San Diego. He called me several months ago to give me some personal insight into the economic growth, the security, and safety on both sides of the border, after this lawless area was brought under control by a fence. It is a proven success.

Vehicle drive-throughs, where people drive across the border and run right past anybody who may be watching them, have fallen between 6 to 10 per day before the construction of the border infrastructure to only four drive-throughs in the whole year of 2004.

Those occurred only where the secondary fence was incomplete. It is undeniable that fencing has reduced illegal entries into San Diego.

According to the numbers provided by the San Diego sector Border Patrol in February of 2004, apprehensions decreased from 531,689 in 1993--they apprehended 531,689 people on the San Diego sector in 1993. As a result of the fencing at the most busily crossed area in 2003, there were 111,515. Isn't that great? That is about one-fifth as many, indicating that one-fifth as many people were trying to cross the border overall. They apprehended in the San Diego area last year--in 2003--111,000 people attempting to enter this country illegally, and there are hundreds of thousands now crossing in Texas and Arizona, far more than are crossing where the San Diego fence was built.

So the scope of this problem is huge. I can't understand the concern that people would have that barriers would be somehow impractical when we are dealing with these kind of numbers. Fencing has also reduced drug trafficking in San Diego. In 1993, before the fence, authorities apprehended over 58,000 pounds of marijuana coming across the border. In 2003, after the fence helped stem the tide, only 36,000 pounds of marijuana were apprehended. In addition, cocaine smuggling decreased from 1,200 pounds to approximately 150 pounds. We have made a lot of progress there. We need to replicate that. We have learned from it, and we need to follow our own example. It is a one-time expense that this bill would meet and will allow us to meet those challenges.

I am convinced that physical barriers at the border are an essential part of a cost-effective solution to our current border security crisis. Virtual fences are intriguing and may be good in remote areas, but they don't impress me with regard to high traffic areas where we are talking about half a million or a million people crossing per year. There are only two alternative routes that we can take to secure the border: manpower alone or manpower plus infrastructure. We can take either: just personnel alone or we can do personnel plus infrastructure. The latter is much more cost effective. It will save us money.

Attempting to secure the entire 2,000-mile border with manpower alone could require as much as 150,000 agents, if you put 15 per mile over the 2,000 miles of the border. Then you have 7 days a week, 24 hours a day. How serious is this? It is a huge cost, were we not to have barriers at the most troubled areas.

If we only build a virtual fence and not a real one, we will be spending millions on technology to detect illegal crossings, and then we will be spending millions on manpower to chase down, apprehend, arrest, process, and deport the illegal crossers. That is not what we want to do. We don't want to play an expensive game where we catch and release and chase and catch and apprehend and pay to deport and pay to house while they are being deported. Apprehension is manpower intensive, slow, and legally complex. It requires additional related activities and costs such as incarceration and repatriation, courts, appeals, transport, lawyers. We don't want to do that. We want to get away from that.

We want to send a message to the world that this border is no longer open, that if you attempt to cross our border illegally, you are not going to succeed. You need to apply and wait in line to come legally. We are generous about how many people we allow now and how many people we will allow in the future. We are a very generous nation with regard to immigration. We will remain so. But we want people to make their application and wait in line, not to pour across the border. Many of the illegal crossers are coming from areas of the world that have terrorist influences. Once they are inside the border, they are that much harder to catch. Preventing people from coming here illegally is the right approach. Prevention is the right approach. We need to get to that place.

I talked to President Bush about this issue recently. He agreed that we need to get to what you might call a tipping point. Once we are serious and get border enforcement up and going in a real way, we get more Border Patrol agents, we end the catch-and-release policy, we put up fences and vehicle barriers, and we have sufficient detention beds so people don't have to be released on bail after they have been apprehended, never to show up again when they are asked to come back to court, if we end all of that, all of a sudden we will see a dramatic reduction in the number of people attempting to come. Couple that with a really workable biometric identifier card for people who come here with a lawful entry right and a job, and they have to present that card or they can't get work, people will wait in line to get that card. If we crack down on businesses who are hiring people without the proper identification, they will quit hiring people. Most businesses will do what you tell them to do.

We can get to that point very easily, far easier than a lot of people believe, where we can go back to a lawful system of immigration for America. That is what the American people want. They have every right to insist on it. They have been insisting on it for 40 years. We were supposed to have fixed it in 1986, 20 years ago. We did not do so. I am telling you, this Senator is not going to support any kind of immigration legislation that will not work to serve the interests of the United States and will not create a system that is lawful and not lawless. No Member of this Senate should.

I urge my colleagues to take this step and vote for this amendment because it is narrow. It simply adds money to the emergency National Guard account already in this bill to provide funds for the construction of physical barriers on the most vulnerable miles along the southern border, the area that Secretary Chertoff and the Department of Homeland Security favor. If we don't use the emergency funds provided in the budget for this purpose, they will get used for something else. The Senate has already voted overwhelmingly to approve construction of physical barriers along the border. We missed a chance to fund that barrier in the Department of Homeland Security appropriations bill. With this vote, there are no difficult choices to make. We can actually say to our constituents that we followed through and we walked the walk as well as talked the talk. I am confident that we will be successful.

I thank Chairman Stevens for his consideration. I understand we may have a vote later this afternoon, which would be pleasing to me.

I yield the floor.