Floor Statements

Mr. President, I wonder if we could----

Mr. President, reserving the right to object, could we first discuss this amendment a minute?

Mr. President, the concern I personally have had--and I think shared by some of our colleagues--is almost less from a fiscal standpoint and more from the fact that when you put a unit together and you bring into that, say, Regular Army unit a guardsman and reservist-- the Senator well understands that young people exchange with each other their own pay and background and one thing and another--and suddenly, you have two sergeants, equally competent to operate that tank or artillery piece or Humvee, whatever the case may be, and one is getting this bump up in pay from, again, the Federal Government as opposed to the State and the other is not, it causes a friction. This is the main concern I have. I just wonder to what extent my colleague has thought through that issue.

Well, I see that argument very clearly. Of course, you know the Army proudly has this motto: ``We are one,'' which means every soldier can do a variety of things, and whether you are a guard or reservist, you are respected now just as much as that career person.

Do you have that list of 22 States? I think we have it over here on our side. I would like to look at that.

Do most of those States do both their National Guard as well as their Reserves or do they just do their Guard?

Fine.

Mr. President, I am going to ask that a quorum call be put in while I have an opportunity to take some of the facts which the Senator delivered in his very comprehensive opening statement and check them out.

As I am doing that, would you prefer to go on to your other amendment?

Fine.

Mr. President, reserving the right to object, regarding the second amendment we are currently on, I would like to reserve the right to have an amendment in the second degree. I want to make that clear. We will lay this aside, and one of our colleagues, who is as active in this field as the Senator is, wishes to address a certain aspect of this amendment.

For the time being, this amendment will be laid aside until, hopefully, some time Monday when our colleague will have time.

Mr. President, regarding the first amendment, during the course of the colloquy with the Senator from New Jersey, if he would like to speak with me, I have some thoughts on that.

Mr. President, I always enjoy debating my good friend from New Jersey. I have fond memories of a recent trip we took to the 60th anniversary of D-day when he told me some of his own personal experiences as a young soldier in the closing moments of World War II, serving with our forces in Germany. He is a modest man and does not talk about it much, but he is one of the few remaining veterans of World War II in the Senate.

I wonder if the Senator might go back to that reference in his statement about the Beirut bombing. Mr. President, would the Senator from New Jersey repeat that because it invoked a memory I have? Did he not talk about how President Reagan went down--I wonder if he will, once again, recite that very important chapter of history.

Mr. President, if my dear friend will indulge me my own recollection, when that tragic incident happened in Beirut, Senator Tower was the leader of the Republican side of our committee, and I was sort of one of the junior members. I remember he came into my office and said: We are leaving for Beirut in 2 hours. If you have time to pack a bag, pack it; otherwise, just bring a toothbrush.

We went over there and saw the tragedy that had befallen our marines. I will never forget it. When we came back on the plane, we talked a little bit, and President Reagan did receive the benefit of our trip. He was deeply moved by that incident.

I cannot recall exactly the days thereafter when we were working with bringing the remains home, but I let it be known to the President that maybe this would be an opportunity to send a strong message of his deep bereavement for the losses and the resolve that he had to challenge those who brought this about and bring to accountability those who perpetrated that crime. We suggested he go down, and sure enough he did go.

I was privileged he asked if I would come down with him. It was a day I will never forget. It was a cold and rainy day. Because of the number of caskets, it was on the outside largely. I recall the schedule, as all Presidential schedules are detailed, and I had a little copy in my pocket.

He went down to speak to some of the families. It was just magnificent the way this President stood in that cold rain and spoke to them. He turned to me and he said: You know, we should stay and speak to every single family member. He did that. We found the time to go down very orderly and speak to every single family member.

The commanding officer of Camp Lejeune was MG Al Gray. Gray is an extraordinary man. He came up through the ranks in the Marine Corps to become a general. He knew the name--I don't recall he even used any notes--of everyone there, and he stood side by side with the President. I was just a few feet to one side going through and talked to the President. If a wife or a loved one wanted to hug the President, the President hugged them. It was remarkable. It was one of the most extraordinary moments in my long career of working with the men and women of the Armed Forces and a series of Presidents over the many years.

I am glad the Senator from New Jersey brought that up because that attack, in a sense, caught this Nation by surprise. We were ill- equipped. I don't know that the Senator from New Jersey would have any reason to remember this, but the guards around the barracks could not even have live ammo in their weapons to try and deter an attack. We were relying on host country security and the like. But that is an incident which I commend the Senator again for bringing up, but we could not, in my judgment, replicate that today because of the regrettable constancy of bringing back our beloved lost ones in the present conflicts, be they Afghanistan or Iraq.

Amendment No. 3458 To Amendment No. 3291

Mr. President, it is for that reason that I send to the desk a second-degree amendment and ask for its immediate consideration.

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

I share in many ways the objectives of my good friend and colleague from New Jersey. As I said, I respect his own service in the military where both he and I have been along with the loved ones of those who have given their lives in situations, and I am sure both of us, in the course of our long public careers, have attended many funerals with those loved ones.

This substitute is carefully thought through and I hope the Senator will take a look at it. I would like to read it.

The Department of Defense, since 1991, has relied on a

policy of no media coverage of the transfers of the remains

of members to Ramstein Air Force Base, Germany, nor at Dover

Air Force Base, Delaware, and the Port Mortuary Facility at

Dover Air Force Base, nor at interim stops en route to the

point of final destination in the transfer of the remains.

Now, that final point is basically where the families of the deceased are located. Continuing:

The principal focus and purpose of the policy is to protect

the wishes and the privacy of families of deceased members of

the Armed Forces during their time of great loss and grief

and to give families and friends of the dead the privilege to

decide whether to allow media coverage at the member's duty

or home station--

That refers to the final destination of the transfer of the remains--

at the interment site, or at or in connection with funeral or

memorial services.

Those could be elsewhere selected by the family.

In a 1991 legal challenge to the Department of Defense

policy, as applied during Operation Desert Storm, the policy

was upheld by the United States District Court for the

District of Columbia, and on appeal, by the United States

Court of Appeals for the District of Columbia in the case of

JB Pictures, Inc. v. Department of Defense and Donald B.

Rice, Secretary of the Air Force [86 Fed. 3rd 236, 1996] on

the basis that denying the media the right to view the return

of remains at Dover Air Force Base does not violate the first

amendment guarantees of freedom of speech and of the press.

The United States Court of Appeals for the District of

Columbia in that case cited the following two key Government

interests that are served by the Department of Defense

policy:

Reducing the hardship on the families and friends of the

war dead, who may feel obligated to travel great distances to

attend arrival ceremonies at Dover Air Force Base if such

ceremonies were held.

Protecting the privacy of families and friends of the dead,

who may not want media coverage of the unloading of caskets

at Dover Air Force Base.

Especially when their loved one may be among them.

The Court also noted, in that case, that the bereaved may

be upset at the public displays of the caskets of their loved

ones and that the policy gives the family the right to grant

or deny access to the media at memorial or funeral services

at the home base and that the policy is consistent in its

concern for families.

It is the sense of Congress that the Department of Defense

policy regarding no media coverage of the transfer of the

remains of deceased members of the Armed Forces appropriately

protects the privacy of the members' families and friends and

is consistent with United States constitutional guarantees of

freedom of speech and freedom of the press--

As determined by the Federal courts. I would like the Senator's views on that approach.

Mr. President, there are rare moments in the life of the Senate. I have enjoyed our colloquy. The Senator has raised one of the most important issues that will be considered on this bill. Despite all the billions and billions of dollars, some $420 billion involved in this bill, this is a matter of principle of the greatest concern to every single Member. Therefore, I am going to ask that this amendment be laid aside so the Senator and I can resume this debate on Monday and let each one of our colleagues have the benefit of our thoughts and have the opportunity to do some careful study of the different proposals, the one you have submitted and the one I have submitted.

May I suggest, however, with regard to yours, there may be one technical thing you might wish to reflect on, and that is the use of the word ``killed.'' You limit it to the people who have been killed overseas. There are some who lost their lives overseas other than in situations that would be characterized as ``killed.'' I would broaden that definition, if I were you, to include those who for other reasons might have lost their lives but who deserve, no less, the recognition which my distinguished colleague from New Jersey wishes to accord them.

Fine. I think you do refer to that. But to make it clear, you might wish to broaden it.

Mr. President, at this time--unless there is further debate from my distinguished colleague?

At this point in time I would like to leave it in the status it is in, assuring you that you have my personal assurance, because of my personal respect for you and the contents of this amendment and its importance, that it will be treated with eminent fairness. No procedural mechanisms will be utilized in any way to deprive the Senator of an opportunity for his debate to be heard and considered.

I thank my friend. I would only conclude: One of the great values in making a trip with a fellow Senator--no matter how long you have served with them and visited with them, there are some things about their life which are fascinating. I hope someday you tell the story about how you were in the Army over there, and both you and I were communicators, and at times in our careers we used to climb up the poles to get the wires that transmitted the signals and orders to those at the front. While you were on top of the pole, a Buzz Bomb--I wonder if even a few realize that weapon was employed by Hitler in the final months of the war, which is a very lethal and dangerous weapon. But that is for another day. The Chamber should hear that story.

But to be on top of that pole and to get down in safety from the Buzz Bomb--that was a trip.

I yield the floor.

No objection, Mr. President.

Mr. President, I thank our colleague. That leaves the Reed amendment for further discussion on Monday. Am I correct on that?

Thank you.

Speaking with the distinguished Democratic whip, I believe we are closing in on the final matters on this bill. One end I am going to try to tie down, then it would be my intention, subject to leadership concurrence, to close out today's activities on the bill and go into a period for morning business; is that correct?

If I may say, Madam President, I feel we are mutually reaching the goal established by Senator Reid and the majority leader and the distinguished Democratic leader. I think we are getting excellent cooperation from all Senators, and we will be able to conclude this matter.

I again appreciate the Senator's assistance. We, frankly, have no more amendments on our side that I know of. Possibly one. I appreciate the cooperation which the other side has given to this matter.

I suggest the absence of a quorum.

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

Mr. President, I see the distinguished Democratic whip on the floor. He has a pending amendment. We are prepared to accept it on this side.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, may I add, in the many years I have worked with the distinguished leader from Nevada, this is an issue which he has singlehandedly, in so many instances, taken the role to care for veterans, particularly those who carry the wounds of war or the wounds that have been incurred in the course of their service to the country.

I say to the Senator, this is a further chapter in that long and distinguished history of your personal intervention on their behalf, and I commend you, sir.

Mr. President, I say to the Senator, I appreciate your sentiments. Thank you very much. And further I sayeth not, except I want to add, we have had a good day on this bill. We have adopted several amendments. We have laid down others that will be completed on Monday and Tuesday. Again, I thank all colleagues for their cooperation, particularly the leadership.

Mr. President, I ask unanimous consent that the bill now be laid aside and the Senate proceed to a period of morning business, with Senators permitted to speak for up to 10 minutes each.

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

I wonder if the Senator will yield for a minute? The Senator from Missouri, perhaps the Senator from Iowa, could they advise the Senate with regard to your desire to make a change to the amendment? Has that been completed yet?

Fine. I would say we will continue to work. At the moment, from the managers' perspective, at least this manager would have to take a close look at this.

I hope in a short time we could establish a time agreement so we could move on with other matters.

Reserving the right to object, and I do not intend to object, I think the managers are doing our very best to move along this morning. We have had a number of unexpected switches by a number of Senators who start amendments and stop them for various reasons. We are prepared now to go ahead with the amendment of the Senator from Washington. But I say to our colleagues, when they have informed the managers they are prepared to go ahead, and then abruptly have to stop, it makes it increasingly difficult for us to work on this bill.

I thank the Democratic whip. He has been most helpful. We have lost a lot of time this morning due to unexpected decisions.

We will proceed with the amendment.

Mr. President, I commend our colleague. This is a subject that certainly will be approached in a very bipartisan way.

I am wondering, do we have any procedural requirement on that family who needs childcare, to express some sort of need for it before it is automatically granted? Would the Secretary adopt regulations? I just ask the distinguished Presiding Officer if I may enter into a colloquy with our distinguished colleague on that.

That is very helpful.

Yes, of course.

I thank our colleague. I asked the question so as to make it a part of the record of the proceedings today. So often when Congress acts on an amendment such as this, which is so important to so many families, they suddenly hear from Washington, ``You got childcare.'' But I think we better put in a caution: Yes, childcare hopefully will be made available, but there has to be some showing of a requirement. Because it is my understanding the Department of Defense now has a number of childcare centers here in the Greater Washington area. Frankly, the adequacy is questionable. Some families do not have access to them. But those families, I point out, might not be able to meet the criteria in the opening section 1:

In any case where the children of a covered member of the

Armed Forces are geographically dispersed. . . .

Those families theoretically are not geographically dispersed, but they are caught in between the class that you are establishing and those who are near a major military installation here in Washington, yet there are inadequate childcare facilities.

Those are the types of things that are going to have to be worked out should this become law.

Fine. We definitely want to care for those. Those families who are not serving overseas yet have been pulled up abruptly from Reserve or Guard status, yet where the husband or the wife-- whichever the case the uniform may be worn--is not deployed overseas, they may have a critical problem, too.

You make reference to those families overseas repeatedly. I just want to make sure about some of those at home.

Fine. On the basis of that, we are prepared to accept the amendment on this side.

Mr. President, I have indicated that colleagues on this side of the aisle are very anxious to work to make this childcare available subject to the availability of funds, as the amendment states. We are prepared to move on, make it totally bipartisan, and voice-vote this amendment.

Mr. President, I move to reconsider the vote.

Mr. President, we are prepared to proceed with the amendment on important aspects of missile defense by our colleague from California.

Mr. President, and no second degrees prior to the vote.

That runs us into about 35 minutes on your time.

Reserving the right to object, could we state no later than 12:30? We may be yielding back time.

We will take on this side equal time with 1 minute prior to the vote.

Mr. President, I yield myself such time as I may require. I would like to enter into a brief colloquy with our colleague from California. If we can keep the answers short, I want to frame, for those Members following this debate, my perception of what your amendment does. I start by pointing out that last year, this body, this Congress, in a conference report, approved 20 ground-based interceptors--they have been authorized--16 of which will be based at Fort Greely, AK, and four of which will be placed at Vandenberg, CA. They are being fielded as part of a missile defense test bed. This test bed is required for operational realistic testing and provides some measure of operational capability which serves as a basis for the IDO.

Is that basically a correct statement of what we did last year?

What we did last year, this body authorized moving ahead on 20 test bed sites, 16 in Alaska and the balance in your State. Am I correct?

Is not the purpose of your amendment to stop that process?

Then how do you proceed to do any testing if you stop the test bed?

I thank my colleague.

I interpret it quite differently. The amendment would prohibit deployment of the ground-based midcourse missile defense system until

the Secretary certifies to Congress that the capabilities of the system to perform its national missile defense missions have been demonstrated in operationally realistic testing.

We authorized precisely what was to be done last year. We are proceeding on that basis right now. And as I look at this amendment, it would be in effect to reverse what we did last year and start off in an entirely different direction. The test bed capabilities will include space, ground, sea-based sensors, missile defense interceptors, battle management facilities, software, command and control, and communications facilities. To provide additional realism, military operators participate in the tests, and the warfighter is developing a concept of operations.

So, basically, what we are doing, if we were to adopt this amendment, is to put a halt on this system.

As I said, I rise in strong opposition to the Boxer amendment. This amendment would prohibit deployment of the ground-based midcourse missile defense system until the Secretary certifies to Congress that the capabilities of the system to perform its national missile defense missions have been demonstrated in operationally realistic testing.

This amendment, however, is flawed.

Let me start by noting that the Missile Defense Agency, with the strong support of the Pentagon's Director of Operational Test and Evaluation, is fielding an extensive missile defense test bed. This test bed is key to operationally realistic testing.

The test bed capabilities will include space, ground, and sea-based sensors; missile defense interceptors; battle management facilities and software; and command, control, and communications facilities and software. To provide additional realism, military operators participate in the tests, and the warfighter is developing a concept of operations.

The test bed facilities, the participation of military operators, and a good concept of operations provide MDA the ability to test realistically but also provide the initial defensive capability of the BMD System. This initial capability is based on the operational capabilities inherent in the test bed. We are, in fact, on track to field an initial, limited defensive capability later this year. That is what a number of Senators have described as a missile defense deployment.

Indeed, the Commander of U.S. Strategic Command strongly supports the early operational exploitation of test bed capabilities. He is the individual charged with assessing the military utility of the BMD system. He testified forcefully to our committee that the BMD system provides a useful military capability, contributes to deterrence, and provides a useful option to military commanders and national command authorities, even in the early phases of testing. He testified that he intends to ``take full and early operational advantage of the system's anti-missile capabilities under development.'' He also wrote in a recent letter, ``U.S. STRATCOM supports the continued appropriate development of missile defense capabilities . . . under the evolutionary approach of concurrent test and operation.''

The amendment does not recognize the connection between the test bed and the fielding of operational capability. If you prohibit this ``deployment,'' you prohibit operationally realistic testing--and prevent the very basis for the certification that the amendment requires.

The BMD system is already being rigorously tested. I would argue that it is one of the most thoroughly tested systems--at this point in its development--that we have. It has gone through thousands of hours of ground testing. The ground-based midcourse missile defense element that we are discussing has achieved successful intercepts in five of eight tests and proven the basic soundness of the hit-to-kill technology. The operational test community is deeply involved in the test program, each test includes operational test goals in addition to developmental test goals.

Each test already includes a measure of operational realism. That testing will continue and will become progressively more realistic and challenging as the system matures. Testing successes will provide greater confidence that the system is performing as we expect it will.

I would further note that the fielding of BMD systems is threat driven. Serious ballistic missile threats exist today and will increase in the future. Congress addressed this issue years ago in the National Missile Defense Act of 1999, which states that it is the policy of the United States to deploy a national missile defense as soon as technologically possible. The Senate passed that act by a vote of 97-3. We need to proceed expeditiously with fielding.

This is entirely consistent with past practice. Our nation has often fielded military systems without completion of operational testing in response to an urgent military need. These systems include the Joint STARS system in the first Persian Gulf War, and the Global Hawk and Predator UAVs in the war on terror. Deployment of these systems--which had not completed testing--greatly increased the security of our nation. The same will be true when we have fielded the missile defense system.

I urge my colleagues to oppose this amendment.

I ask the chairman of the subcommittee to address the Senate and allocate the time on this side.

Does the Senator from Colorado agree with me as to what this amendment does?

Mr. President, I wish to advise Senators, Senator Levin and I have conferred. We have the next amendment following this vote to be provided by the Senator from Rhode Island, Mr. Reed, No. 3354. I reserve the right to put on a second-degree amendment. As soon as we provide the second-degree amendment to the other side, it is my expectation, during the course of the deliberations, we will be able to work out a time agreement.

That is correct. There is no restriction. Offer the amendment.

It momentarily will be available. I think we can yield back all time. I didn't know whether the Senator wanted another minute to speak to the amendment. Did she ask for it?

I say to our colleagues, this issue was acted upon last year. Money was authorized and appropriated. The program is underway. The effect of this amendment is to cancel what the Congress did last year.

I yield the remainder of our time. I think a vote is now in order.

Mr. President, I move to reconsider the vote.

Mr. President, we have advised the Senate that the Senator from Rhode Island, Mr. Reed, will have an amendment.

Mr. President, if the Senator is ready to send his amendment to the desk, then I would like to send up a second-degree amendment, and we will proceed.

Mr. REED addressed the Chair.

Yes.

Mr. President, at this time I send an amendment to the desk in the second degree to the pending amendment.

Mr. President, we would be happy, on this side, to work out a time agreement as soon as the Senator from Rhode Island is able to indicate to us the amount of time he desires. We will quickly respond as to the amount of time we would desire.

I say to the Senator, an entire hour on your side?

Mr. President, I would request we have an hour on this side, with the expectation we will be able to yield time back.

Mr. LEVIN addressed the Chair.

Mr. President, I am happy to yield to the Senator for purposes of a statement.

No.

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

Mr. President, we are moving along in a very cooperative spirit. We are going to ask for a time agreement on the Reed amendment and the Warner second-degree amendment as a package. They will be considered in the course of 2 hours, hopefully less. At the conclusion of the debate on these two amendments, we will then proceed to a record vote on the Warner amendment. In the event the Warner amendment prevails, then the Chair would recognize the Senator from Rhode Island for the purpose of a perfecting amendment, which he has a right to do under the rules, but in order to keep the sequence moving, I would like to advise the Senate that it would be done in that way. At this time, until we see the perfecting amendment, we cannot set a time agreement on that. But it would be my hope that we can move along expeditiously, first by crunching the 2 hours to less, moving to a vote, and then the perfecting amendment and concluding, hopefully, a brief colloquy, debate on that, and vote, if that becomes necessary. Have I correctly stated it?

That is correct. But there would be in order an amendment to the perfecting amendment.

Let me try that again. We have before the Senate at this time the underlying Reed amendment. We have the Warner amendment in the second degree. We ask for an hour on each. At the conclusion of that period of time, which I hope will be less than 2 hours, the Senate would proceed to a record vote on the Warner amendment. I am asking for the yeas and nays incorporated in this. After that is taken, the Chair would then recognize the Senator from Rhode Island for the purpose presumably of offering a perfecting amendment.

The Senator is correct.

Immediately.

That is a leadership request, I so advise the Democratic whip.

It is just an advisory for Senators. But I understand that my leader will be making that request.

That is correct.

Are the yeas and nays ordered on the underlying amendment of the Senator from Rhode Island? If not, I so ask.

I yield the floor.

Mr. President, I move to reconsider the vote.

Mr. President, I would like to have a clarification about the standing order with regard to the amendment of the distinguished Senator from Rhode Island.

Mr. President, could I inquire of the Presiding Officer, are these three votes 10 minutes each?

He is right here.

Mr. President, for the convenience of the Senate, stacking the two votes is quite acceptable.

I discussed it with him, and it is fine.

Mr. President, we were going to intersperse a Sessions amendment for 30 minutes.

He is not here.

We must check with our Finance Committee regarding the time on the Biden amendment. We are trying to work toward putting the votes in one batch.

Mr. President, that was a suggestion I made to the Senator from Rhode Island. I think he will perhaps reflect on the need to go forward with his second missile defense amendment, and he had asked for that need to be reconsidered. Therefore, in its place we can put the end strength amendment, which would be a matter of convenience and great interest to our membership on this side, given it is a bipartisan amendment.

Could we put time agreements on this now?

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

Mr. President, the distinguished leadership on the other side and myself and the leadership on this side have worked out the following time agreements: On the amendment from the Senator from Rhode Island, which has a second degree from the Senator from Virginia, Mr. Warner--

Correct--we would need 40 minutes equally divided on those amendments.

A total of 40 minutes equally divided. We would then proceed to lay that aside and proceed to an amendment by the Senator from Alabama.

Correct. That will take 20 minutes.

Fifteen on this side, and I think the other side only needed 5 on that amendment.

Then 30 minutes equally divided. That amendment will not require other than a voice vote which we will do. We will then immediately proceed to the Biden amendment.

Correct. At the moment, that would require 2 hours equally divided, with the expectation that can be reduced in time.

That is correct.

I concur in the request.

That is correct, and I seek now to modify it, and I will send a modification to the desk and add to the modified amendment.

It is a very minor modification. I simply strike one word, and it is the word ``the.'' I send the modification to the desk and ask for its immediate consideration.

I am ready to indicate to my colleague we have worked on this amendment in the second degree. It is my understanding that the Senator from Rhode Island is prepared to take the Warner amendment as modified.

Fine.

I thank my colleague. This is one of those situations. Senator Reed is a very valued member of the committee and the amendment has strong cosponsorship; namely, Senators McCain and Hagel and others on our side. I think all along the committee has recognized the need to work with the Department of Defense, most specifically the Department of Army, to resolve this situation. I thought it necessary to second degree the amendment which would authorize the Department of Defense to pay the cost of the additional Active-Duty soldiers for fiscal year 2005 from supplemental or

contingent emergency reserve funds because the sponsors of the amendment had not identified the considerable sum, some $2 billion plus, that their amendment would generate in the need for the Army budget.

The Army needs this Active-Duty strength. I think we are in agreement on this point.

Senator, I indicate now I am going to urge my colleagues to accept the amendment.

I note that in the bill we are considering there is a specific authorization which the committee worked out in section 402 for temporary increases of up to 30,000 active duty soldiers above the currently authorized level. This goes 10,000 active-duty soldiers beyond the end strength level proposed in Senators Reed and Hagel's amendment.

My second degree amendment, however, addresses the real issue stemming from these increases--how to pay for them. The Reed/Hagel amendment provides no offsets for the $2.4 billion cost of these extra troops. I submit that this is not a cost for the Department to take ``out of hide,'' or that the Department of the Army should absorb out of the FY 2005 budget.

The approach in my second degree amendment reflects the recommendation of the Army Chief of Staff, General Schoomaker, who testified that using supplemental appropriations gives necessary flexibility and is, in fact, essential to preserve the Army's ability to plan for operational readiness in the present and modernization for the future.

The Reed/Hagel amendment would have the effect of directing the Army to increase its end strength by 20,000 in FY 2005 at a cost of $2.4 billion. The amendment identifies no offset, it identifies no means to pay for these additional troops. Consider the potential effect of that proposal on the Army. The $2.4 billion represents a 15 percent reduction of funding for direct costs of operating forces for home station training, exercises and operations; in other words--fuel, spare parts, maintenance, food, and other consumables. Alternatively, this reduction would eliminate almost all funding for Army individual and unit training--such as basic training, flight training, and combat training center rotations. The $2.4 billion represents a 42 percent reduction of funding for Army command and control, logistics, weapons and ammunition transportation and storage. It could reduce resources to key readiness and modernization accounts, as indicated above, and divert money needed to train and retain more experienced personnel because of the imperative to satisfy an end strength number.

My amendment would afford the Army the opportunity to flexibly execute its budget while increasing its manpower. I would ask you to keep this in mind and also keep in mind that the conferees will have the task of finding $2.4 billion in offsets if this amendment becomes a law.

I think that is an accommodating gesture. In fact, the amount of time I reserved on this side, portions of it perhaps could be yielded back, and then absorbed by the proposal of the distinguished leader.

It may not be necessary. But so many of our colleagues are doing a lot of work all over the system right now. They didn't recognize that this would be brought up at this time. We want to accommodate them.

Mr. President, would the distinguished Democratic leader allow the time to be managed on this side by either Senators Hagel or McCain, the time we have on this side? That would sort of divide it between yourself and the two colleagues on this side?

I thank the Senator.

Have we pretty well resolved this? The Senator from Arizona and the Senator from Alabama, have we taken adequate time over here for our colleagues who have been in strong support? I think we have reached a conclusion on this matter. We will not need that extra tranche of time.

I think we should allow some time for Senator Hagel. We will make that time available.

Then let's hope Mr. Hagel can make it.

Absolutely, Mr. President.

Mr. President, I think this might be an appropriate time that I would like to urge adoption of my amendment in the second degree to the Reed amendment.

Let's have that.

I move to reconsider the vote and to lay that motion on the table.

The motion to lay on the table was agreed to.

This amendment has the strong support of the Senator from Virginia.

I thank the Chair.

Amendment No. 3371

If the Senator will yield, I am advised by the parliamentarians that we may need to put in on the Reed amendment now that there are no further amendments, second degree or otherwise, in order on that amendment. The desk asked me to check that.

The regular order is the vote on the Reed amendment?

Mr. President, I move to reconsider the vote.

The managers, together with our distinguished colleague from Nevada, would like to do the following to accommodate Senators on both sides: The Senator from Missouri would introduce an amendment, lay it down, and speak maybe 1 minute to it. We then would turn to the other side. The Senator from New York wishes to address the Senate for several minutes and then we will come back over to Senator Talent, who wishes to speak with Senator Clinton. They will each have a couple of minutes. Then Senator Brownback will lay an amendment down and Senator Dorgan may or may not speak to it, but there will be no more votes, of course, tonight.

No, we might stop midway and clear the amendments. As soon as the package is ready, the Senator from Michigan and I may clear an en bloc package of amendments.

That is fine. I am not seeking unanimous consent. I am just trying, in a gentlemanly way, to organize this.

I see the distinguished Senator from Nevada wishes to speak?

It is not in the form of a unanimous consent.

I thank the leader. The package is being put together. At this point in time I yield the floor and I see the Senator from Missouri seeks recognition.

We would have to lay this aside. We are waiting for the Chair to rule.

We wanted to clear the amendment.

Mr. President, I want to say at this time, we started today's very productive session of amendments with Senator Bond, who has remained on the floor now I would say about 9 hours, to obtain what you have right now. Well done, sir.

If it is agreeable to my colleagues, I ask unanimous consent that amendment be laid aside.

I now send a package of amendments to the desk and ask they be considered en bloc.

Mr. President. I thank the Senator from Connecticut. I am prepared to accept this amendment based on the understanding he has reached with the distinguished Chairman of the Commerce Committee.

As Senator Dodd indicated, the Commerce Committee plans to hold a hearing on the FIRE Act on July 8, with a markup expected shortly thereafter. I look forward to working with Senators McCain, Dodd, and DeWine to ensure that this important legislation to help our Nation's fire departments is enacted into law this year.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Before the Senator from New York speaks, I wonder if I might get the attention of the distinguished whip?

If we can have assurance, as the managers depart the floor, to do some other work, that this will be the final action on this bill tonight?

Mr. President, the distinguished Senator from Nevada went over that with me, and that strikes me as a very good day. If a Republican Senator desires an amendment, we will work him or her into the queue as the case may be.

Then we might mention also the schedule for Monday?

That is correct. These are the amendments that have been forthcoming on the other side of the aisle.

I am prepared to assist my colleagues on this side if they have matters, but we are really working toward what the majority leader, in consultation with

the distinguished Democratic leader, indicates. We are going to conclude this bill on Tuesday.

It is largely due to the tremendous cooperation on both sides. So we have the assurance that this will be the completion of the work tonight?

I thank the distinguished leader.

And the Senator from Missouri wishes to speak for how many minutes?

Five minutes to follow the Senator from New York.

Mr. President, I rise today to honor Lieutenant Colonel Michael J. Delaney of our Army's Office of Legislative Liaison. Lieutenant Colonel Delaney has distinguished himself as an outstanding American soldier from the great State of Virginia and will soon complete over 23 years of selfless service to the Nation in the United States Army. His dedication to Soldiers, commitment to excellence, and performance of duty has been extraordinary throughout his career and, especially over the past 4 years, has cemented the positive relationship between Congress and the U.S. Army. He will retire on August 1, 2004.

Over his 23 years of selfless service, Lieutenant Colonel Delaney served in a succession of command and staff positions worldwide. As a junior officer, he stood at the forefront of freedom during the Cold War in Germany. From the Cold War frontline, Lieutenant Colonel Delaney earned his wings as an aviator and qualified on a variety of rotary wing and fixed wing aircraft. During Desert Shield and Desert Storm, Lieutenant Colonel Delaney commanded an aviation unit based at Fort Belvoir. Despite the wide dispersion of his unit throughout the combat theater, they were able to successfully accomplish their mission due, in no small part, to his exceptional and inspirational leadership. Lieutenant Colonel Delaney has since served in a variety of positions of increasing responsibility.

For the past 4 years, Lieutenant Colonel Delaney has served as a congressional liaison for the U.S. Army. Perhaps this assignment was pre-ordained, as Lieutenant Colonel Delaney's wife, the former Susan Fanning, served as staff to Senator Paul Laxalt of Nevada. His mother- in-law, Shirley Fanning, also has a history with the Senate as she served on the staffs of Senators Everett Dirksen and Strom Thurmond for 25 years. Lieutenant Colonel Delaney's work as a legislative liaison and as the Chief of the Programs Division enabled the Army to provide this Congress the information we need to accomplish our constitutional duties. His efforts have been exceptional and noteworthy in working with Congress during a critical time as the Army undertook transformation, in the aftermath of the 9/11 terrorist attacks, and during our current efforts with the Global War on Terrorism. Throughout this critical time Lieutenant Colonel Delaney has fostered a personal relationship between Congress and the U.S. Army.

Lieutenant Colonel Delaney holds degrees from George Mason University, B.A., 1981, and the Naval War College, M.S., 1996. His military awards include the Legion of Merit, the Meritorious Service Medal, and the Master Aviator Badge.

Lieutenant Colonel Delaney represents the epitome of what the Army seeks in a congressional liaison and the country expects from our officers. His service to the Nation has been exceptional, and Lieutenant Colonel Delaney is more than deserving of this recognition.

Mr. President, I ask the Presiding Officer to advise the Senate with regard to the standing order.

I further inquire of the Chair, at the conclusion of the vote on the Dodd amendment, the Senator from Virginia is to be recognized for the purpose of laying down an amendment; am I not correct?

I yield the floor.

Mr. President, will the Senator engage in a colloquy with me?

First, I would like to lay the predicate. The Senator has brought forth an important concept. He asked for a study. I am prepared to support the study. But I urge my colleague, as I did the other day on another part of the amendment--and he accepted my advice and took that out--we have to look at this interrogation section. There is a trigger mechanism, if you look at the amendment, which says in 90 days every one of these contractors has to discontinue their work.

That is what it says. Am I not correct?

It is signed into law.

Mr. President, that cripples America's intelligence system in the middle of a war in Afghanistan, in Iraq, and our operations in Guantanamo.

How can the Senate suddenly withdraw our U.S. military interrogation base in the middle of a war in 90 days? There is no way in the world the military--there is a greater burden on the Army--can hire and train in this short period of time all the replacements that would be required if the Senator's amendment became law.

That has been stated twice by the Senator. Those are facts and valid opinions. But I am looking at the very practical effect--that under this amendment when the President's signature goes on the bill, in 90 days we are out of business.

Let me point out a few statistics. Take Guantanamo Bay: Right now we have 140 translators of which over 100 are contractors.

Nevertheless, eventually they have to be taken inhouse.

I understand that. That is the very point I wish to make. You give us a year in which to cure that problem, but then you go to the analysts and interrogators, 60 analysts of which 35 are contractors.

They are part of the system--40 interrogators of which 20 are contractors. In 90 days, 50 percent roughly of the operation in Guantanamo ceases to function.

I will tell you that practically there is no way in the world the military can go out and hire and recruit and put into uniform or civilian capacity that number of individuals.

Mr. President, there is a problem. The Senator has identified it. I acknowledge it. I do not think it is as great as the Senator portrays it, but nevertheless there is a problem.

What I am saying to my colleagues who are momentarily going to be asked to vote is that we cannot in any way possible solve it in the 90- day period, and we are in the middle of a war. The Senator is going to basically dismantle 50 or more percent of our intelligence interrogation, and it is from these interrogations that our troops today are getting valuable information to protect their lives on the battlefronts primarily of Afghanistan and Iraq.

I say to Members, when you come and are asked to vote, if you vote in support of this amendment, then I simply say you are pulling the plug on our intelligence system and the interrogation system and severely dealing them a crippling blow. It is as simple as that.

Does my colleague acknowledge that in 90 days the interrogation is out of business? Am I correct?

The simple reply is, you can't take an individual, no matter how many degrees they might have, in 90 days, or less, and train them to be an interrogator. Most of the contractors now performing this work are former U.S. military individuals--people who served in the interrogation field, primarily during the cold war when the U.S. military had a significant requirement for interrogators, both in the European theater and the Korean theater.

I see my colleague from Alabama. Does my colleague seek recognition?

I yield the floor.

I yield such time as my colleague requires. Would the Chair advise as to the time on both sides?

I need a minute or two to wrap up.

I simply say to colleagues we are putting on them a considerable burden in a very short period of time.

I ask a very clear question of the proponent of this amendment, the Senator

from Connecticut. In 90 days we have to dismantle a great deal of our interrogation--in Afghanistan, in Iraq and Guantanamo Bay--right as this country is in the middle of combat operations, right at a time when men and women of our Armed Forces, of our coalition forces, are at great personal risk.

A few interrogators at this point in time are implicated in the tragic events in the prison situation. As the Senator well knows, the Armed Services Committee is probing that as quickly as we can given the limited time we have had. This bill has been on the floor of the Senate, but we had to temporarily set aside our work. We hope, once I consult with the leadership and members of the committee, to resume that. The point being, this is not the time to put a 90-day jackhammer that severs our ability to continue our interrogation of prisoners with the use of contractors. Several of them did perform in a manner that, hopefully, they can be brought to account in the Abu Ghraib situation, but hundreds of other contractors are carefully and professionally doing their work in interrogation. This amendment would stop that in 90 days.

I see the Senator from Colorado.

I will reserve 1 minute to follow the Senator from Connecticut.

Mr. President, I ask my colleague a question. This graduating class to which the Senator refers, am I not correct it is enlisted and 18- to 20-year- olds?

I say to my colleague, there are basically young enlisted men with no field experience, in no way a

comparison to the seasoned cadre of contractors now performing this invaluable service.

I wish to move to table, but I will not do it until my colleague has the opportunity.

Now, Mr. President, I inquire of the desk, I think the other side has slightly gone over their time. I wonder if we might accommodate the chairman of the Intelligence Committee and ask that he be permitted to speak for 2 minutes.

Reserving the right to object, and that the Senator from Virginia be recognized for the purpose of the tabling motion following Senator Dodd.

Mr. President, I yield my 2 minutes to the Senator from Kansas.

Mr. President, I thank my distinguished colleague.

Mr. President, I simply say, this is not a vote or debate on a partisan issue. We both feel this issue has to be corrected. I simply plead for

reasonable time within which to do it, hopefully, to give greater security to our fighting men and women.

Mr. President, I move to table the amendment.

I move to reconsider the vote and move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, I will suggest the absence of a quorum. I wish to advise Senators we are making progress. We are working out a UC request right now, and I hope to resume the bill very shortly.

I suggest the absence of a quorum.

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

Madam President, the UC request is still under consideration. Very clear and forthright efforts are going forward on both sides. But in order to proceed on the bill, I ask unanimous consent that we turn to the Senator from Illinois, who will speak for a few minutes, and then it is my understanding a voice vote will be acceptable on his amendment. Following the adoption of that amendment, we will turn to the distinguished Senator from Kentucky for the McConnell-Bunning amendment.

Madam President, the Senator from Illinois and myself and others were here well into the night last night as the Senator gave a very detailed dissertation on this subject.

I find the amendment basically recites this administration's policy. The unambiguous policy of this and preceding administrations is to comply with and enforce this Nation's obligations under international law. These obligations are embedded in American domestic law, including the Uniform Code of Military Justice, which explicitly incorporates the law of war.

President Bush has recently stated:

We are a nation of law. We adhere to laws.

Secretary Rumsfeld, on June 13, stated:

There is no wiggle room in my mind or the President's mind

about torture. That is not something that's permitted under

the Geneva Conventions or the laws of the United States. . .

. It's required that people in custody be treated in a humane

way.

So I think it is very appropriate that we do the codification, as the Senator recommends. I am hopeful that in the conference status Senator Levin and I can work to incorporate basically this amendment.

Does the Senator from Kentucky wish to modify his amendment?

Fine. I ask my colleague to be able to wrap up this very important debate shortly.

We are anxious to move on, and there will not be a requirement for a rollcall vote. I appreciate very much the cooperation because given the bipartisanship on this matter, it will be a timesaver as we move ahead on this bill.

Mr. President, I have personally observed the Senator from Iowa and the Senator from Kentucky for years, and finally they have brought it to fruition. We are ready momentarily to act and accept the amendment.

I urge adoption of the amendment.

I move to reconsider the vote.

I will address the Senate with regard to a unanimous consent which has been crafted carefully on both sides of the aisle.

I ask unanimous consent that Senator Graham now be recognized to call up his amendment No. 3428, and that it be further modified with the changes at the desk. I further ask consent that there be 15 minutes for debate equally divided on the amendment, and that following that time the amendment be agreed to and the motion to reconsider be laid upon the table.

If further ask that following disposition of the Graham amendment, Leahy amendment No. 3292 be the pending question, and that I be recognized to send up a second-degree amendment, No. 3452.

Mr. President, are we ready to vote on this matter?

I urge adoption of the amendment.

Mr. President, I yield back the time.

I move to reconsider the vote.

Mr. President, I thank the Senator for his hard work.

Amendment No. 3452 To Amendment No. 3292

Mr. President, I believe the Senate is ready to turn its attention to the amendment from the distinguished Senator from Vermont. Am I correct in that?

Mr. President, my understanding is that the second-degree amendment from the Senator from Virginia is now before the Senate.

Mr. President, I yield the floor.

That is very important. Harry Truman was civil.

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

A question: Is there some opportunity such that I can present the Senate with an explanation of why I felt there should be a second degree? I would like to do it in just a dispassionate, straightforward manner, and let the Senate then make its decision. So I would like to have the opportunity. I hope in due course to present my side of this issue.

Mr. President, as the Senator well knows, the distinguished leaders on both sides are now looking at that while I am engaging in debate with him. We are looking at that proposition.

I would like to have the opportunity at the earliest convenience to state the purpose for which I initiated the substitute amendment. And I think it is going to meet the majority of objections the Senator from Vermont has with his proposal.

Mr. President, I thank my colleague. I will not try and make reference to the consideration of language similar to this underlying amendment and what occurred in the appropriations cycle and what occurred or didn't occur in the conference. I was not there. I don't have the specific knowledge. I am pleased that the distinguished Senator from Vermont, when I did discuss with him privately some of the earlier statements, has now corrected them. And I accept at face value what you have said about what took place in the appropriations cycle.

But we are now, at this point in time, on this bill, presented with this amendment and a second-degree submitted by myself.

First, the Senator observes that there is a need for legislation to impose criminal penalties on persons who commit wrongdoing in contracting in the course of our military operations. I concur with that very simply. So how best to do it, I think, is as follows.

My amendment would strike the language of the Leahy amendment and substitute language which would make it explicitly extraterritorial, which means we can reach out to these companies that are alleged to have done wrong and make applicable existing criminal statutes, statutes which have been on our books for a long period of time, which have been tested in the courts, and we know precisely what the language means.

My amendment would do the following. There are two existing Federal criminal statutes. The first is 18 USC 1001 dealing with false statements; and, secondly, 18 USC 1031, dealing with major frauds against the United States.

Those are the statutes, the body of law, which Congress put in place to deal with problems such as may be occurring in our operations in Afghanistan, Iraq, and, as the Senator said in his amendment, any other country in which members of the United States Armed Forces are engaged. So we have reached out not just to those two countries, Afghanistan and Iraq, but we have reached out to accommodate all of those areas. And these companies or individuals can be held accountable.

So the second-degree amendment takes care of the potential problems in covering overseas contracting without the problems inherent in the Leahy amendment.

I turn now to the Leahy amendment. This was the primary reason I put forward the second-degree amendment because you have added language. Frankly, I say with some modesty, I was a lawyer and a criminal prosecutor. But if I could draw your attention to section D in which you apply all of the penalties of your amendment, D says: Knowingly and willfully an individual or a contractor or an entity or corporation ``materially overvalues any good or service with the specific intent to excessively profit from the war, military action, or relief or reconstruction activities in Iraq, Afghanistan, or such other country. . . .''

I say to my good friend, I am not sure what the derivation of that language is and the extent to which the courts have addressed that language in the context of not a civil but a criminal prosecution. So I pose that as a question.

I thank my colleague. Let me bring to his attention that we are quite fortunate as a nation to have literally several thousand contractors engaged in supporting the men and women of the Armed Forces of the United States in many areas of the world. And now we are about to take

language which, as the Senator said, perhaps was a basis for a civil penalty and subject these thousands of contractors and individuals to the following language in your amendment: They ``shall be fined under paragraph (2), imprisoned not more than 20 years.''

I say to my good friend, we were taught in law school the difference between civil and criminal law. We were taught the tremendous burden of proof and so forth that is associated with depriving one of one's freedom and liberty. You are about to subject these contractors to that, up to 20 years, using only civil standards. I understand you have specific proof in there.

Mr. President, I can't remember. It has been too long. That is one of a senior citizen's benefits. But I spent 5 years as an assistant U.S. attorney in the criminal and appellate divisions of the courts here in the Nation's Capital. I point out to the Senator, I recognize the high bar. I am just saying I think the Congress should deliberate very carefully a criminal penalty of up to 20 years for these thousands upon thousands of companies that are currently engaged. Carefully, first go through a series of hearings, and then floor debate, rather than come up here and in a matter of an hour or two of time try and make the decision to impose criminal law on an existing framework of contractor support at the very time we are engaged in combat operations in Iraq, Afghanistan, and, to a lesser extent, in other parts of the universe.

The Senator is asking the Senate to take a very serious step. That is why the substitute amendment would incorporate, if adopted, a statute-- basically existing law--and extraterritorial ability to reach the company under existing law in title 18.

If the Democratic whip wishes to address the Senate, I am more than happy to allow that.

Absolutely, Mr. President.

Mr. President, I will reply to that. My criminal penalty is under existing statutes, which were carefully debated by the Congress and have been on the lawbooks for a number of years. I will soon address the Senate as to how long these statutes have been in place. That is the basic difference.

My statutes don't have in it ``materially overvalues any good or service.'' I say to my good friend, that is too vague on which to send someone, as we used to say, as an old prosecutor, ``up the river.'' I don't care whether it is 20 or 30 years. I don't know how the burden of proof of ``materially overvalues'' is reached. You are asking for a criminal penalty predicated on that phrase.

Mr. President, I wonder if the Senator could point to the Record in which the Senate--in the course of the deliberation on the Appropriations bill in which his amendment is included--debated that.

Mr. President, my colleague has challenged me on the underlying statute that I include in my amendment. I draw his attention to the title 18, section 1001. That statute was put on in 1948.

Now, the second statute I utilize is 1031, which was adopted in 1988. So the first was in 1948; the next was in 1988.

I question my friend, who challenged me that they were just adopted, it seems to me that both of these Federal laws have been on the books for a sufficient time to have been examined by the courts and others.

It might have been amended.

On October 11, 1996, there was one amendment.

I am reading from the Federal Criminal Code, 2004 edition. I imagine it supersedes the 2003 edition.

The point is that the statute, 1001, originated on June 25, 1948. This shows the last amendment to be October 11, 1996. Very clearly, I think my good friend has to acknowledge that this is proof that the two statutes upon which I rely have clearly been on the books for a considerable period of time and have been presumably tested in the courts and otherwise. That is the basic difference.

I can find no reference in the Criminal Code to the use of the language that my good friend uses here, ``materially overvalues.'' I think that is too vague a standard upon which to send anybody up the river. I don't care whether it is 20 or 30 years, or whatever period of time.

That is a legitimate question. I answer in the affirmative, that the anecdotal types of things we have discussed on the floor would be covered by the existing criminal statutes, provided they found the requisite level of ``beyond a reasonable doubt.''

I challenge my friend, I cannot find any criminal law that employs this type of verbiage that he seeks here. There is reference in civil statutes to that type of language, but the Senator from Vermont is now asking that these words become a part of the criminal statute.

I think what is going to happen, if your amendment will be adopted, is

that this infrastructure of tens of thousands of individuals and companies out there right now is going to say: We are out of this; we are not going to subject our people, we are not going to subject our business to the risk of this type of prosecution under these vague standards of ``materially overvalues any good or service.''

I have a very quick and simple answer to the Senator's question. Adoption of the amendment by the Senator from Virginia would be the first time the jurisdiction of these two titles is extended beyond the shores. Criminal convictions could be brought against defendants, if my amendment is adopted.

Yes.

Section 1031 of title 18, ``Major fraud against the United States'':

Whoever knowingly executes, or attempts to execute, any

scheme or artifice with the intent to defraud the United

States--

That is fairly broad.

Mr. President, this framework of laws embraces enough provisions that they could establish a case of fraud using the example the Senator from Vermont stated because the contract will have provisions in it with regard to the amount of profit, and there would have to be some reasonable examination of that. The contract is not going to be silent on that issue.

I am reading the statute. That is what it says here:

Whoever knowingly executes, or attempts to execute, any

scheme or artifice with the intent to defraud the United

States--

And the contract is going to set the profit margins.

Would that be in the nature of some sort of trick they were trying to perform?

Let's look at section 1001:

Except as otherwise provided in this section, whoever, in

any matter within the jurisdiction--

So forth--

knowingly and willfully--

(1) falsifies, conceals, or covers up by any trick, scheme,

or device a material fact;

(2) makes any materially false, fictitious, or fraudulent

statement, or representation; or

(3) makes or uses any false writing or document knowing the

same to contain--

I say to my good friend, these statutes cover most of the situations, if not all, in which there could be a wrong perpetrated, a wrong of the type you say is profiteering.

To bring this to a conclusion, the very fact that the two of us have had some experience and cannot reconcile differences on the meaning of the language of the Senator from Vermont brings home the fact we should not be asking our colleagues to make that the law of the land on a vote this afternoon after this short debate. The Senator is bringing a brandnew dimension into the Criminal Code.

I think we are at the point, unless there are other colleagues who desire to discuss this--does the Senator from Alabama wish to speak?

Yes.

Yes, of course, Mr. President.

I was hoping I could yield to the Senator from Alabama for a question or observation.

Mr. President, in reply to the distinguished Democratic whip, I certainly commend him. I would say to him that practically as long as I have been in the Senate he has been on the floor for the Senate authorization bill all these many years and has been a tremendous help to us, and he continues at this moment. I assure him we are working on a UC which I hope will accommodate the distinguished Senator from Vermont and his requirements. So I am simply asking for a few minutes on which this matter may be presented to the Senator, unless someone wishes to speak.

Yes, of course.

Yes.

Well, not exactly. We will just have a colloquy. Mine is likewise a criminal statute.

They are both criminal, except mine uses the underlying statutes and legislation adopted into law after the normal process through the Senate.

Oh, no, I cannot buy off on that. There is one portion of the amendment of the Senator from Vermont which is a brandnew concept being introduced of standards for criminality, and I cannot accept that.

Well, I would have to look at it. At this late hour, with votes momentarily to occur, I would not want to conjecture. My predicate is that criminal penalties deserve the most exhaustive consideration by the legislature, be it State or Federal. This new standard that my colleague from Vermont has raised has a legislative as well as a judicial history in civil penalties. It does not have a comparable record in any Federal system.

Mr. President, it is a situation I would want to examine with great care and see how it is phrased. I think right now we have two very distinct pieces of legislation before this body. This is legislation proposed by the Senator from Virginia which is predicated on statutes that have been in existence for a number of years--one, 1948 is the origin; the second is 1988. We simply extend the jurisdictional reach of those statutes to areas in which these contractors are performing beyond the continental boundaries. It is a very clear way of bringing to justice those operating beyond our shores. To me, that does it. I am firmly opposed to the introduction into the criminal statutes a standard of criminality which I feel is far too vague to support the extreme of deprivation of

life, liberty, and freedom--not life, perhaps, but liberty and freedom.

In reply, I think you framed the question very clearly. My response I hope is equally clear. I could not make a proffer as to what I might do until I have looked at it. I want to know how this particular language is employed in those civil penalty provisions. It may have added words in it. I haven't read any of those clauses, so I would have to wait. But you have accurately stated there is a very significant difference between the legislation proposed by the Senator from Virginia and the legislation proposed by the Senator from Vermont.

I think at this point we are about ready to receive the unanimous consent proposal; am I not correct?

I have been informed by the distinguished Democratic whip that we are close, in which case I suggest the absence of a quorum, at which time we can all draw a breath.

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

Mr. President, the leadership has been working with the managers and has worked out a unanimous consent request which I would like to propound to the Senate at this time.

I ask unanimous consent that at the hour of 4:30 today, the Senate proceed to a vote in relation to the Warner amendment No. 3452, which is to be modified to be in the form of a first-degree amendment, to be followed by a vote in relation to the Leahy amendment No. 3292, with no amendments in order to the amendments prior to the votes; I further ask consent that following those votes, the Senate proceed to executive session and immediate votes on the confirmation of the following: Executive Calendar No. 567, William Duffey; No. 590, Lawrence Stengel; No. 607, Paul Diamond.

I further ask consent that following those votes, the President be immediately notified of the Senate's action and the Senate resume legislative session.

I finally ask consent that following those votes Senator Sessions be recognized in order to offer his amendment No. 3372, which is to be further modified with changes that are at the desk; provided further that following 10 minutes of debate equally divided in the usual form, the amendment be agreed to.

So modified.

My understanding is, that is correct.

I thank the Chair.

I suggest the absence of a quorum.

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

Mr. President, the managers of the bill are grateful to the leadership for the cooperation we are getting in moving this bill along, as well as all Members. We have had a preliminary meeting with regard to tomorrow's schedule. I would like to acquaint the Senate with the thinking at the moment with the leadership.

We would start off the morning with no morning business, proceeding promptly to the bill at the hour of 9:30, with the first amendment to be brought up on our side, the Bond-Harkin amendment. Am I correct on that?

We will try to establish time agreements during the course of the votes today. That is to be followed by the Reed amendment which goes to end strength, a very significant issue. That amendment currently has an amendment in the second degree, not an amendment which is a substitute but just an amendment. That is under consideration and will be debated at that time and then, in all probability, a voice vote, not on that, a voice vote on the first one I hope, but on the second there would likely be a rollcall.

Yes.

That is a new dimension which I have not had the opportunity to review.

We will take that into consideration. I cannot commit at this point in time, but I do know there is an amendment by the distinguished Senator from Delaware regarding taxation.

I see.

I defer to my colleague here with regard to the very important amendments on missile defense.

It is at the desk.

Fine. Mr. President, the Senator from Rhode Island approached the Senator from Virginia earlier today, and he said he would provide some language. Thus far, we haven't had that opportunity.

Mr. President, to conclude this brief colloquy, I am not able to speak to the Daschle amendment or the Biden tax measure. I will have to engage people on the tax committee to look at that. The others, I would say, as chairman and I hope you as ranking, if we are able to get through the agenda we have outlined, this bill is really down in its final stages; would you not agree?

I would say in response to that, we have likewise successfully reduced and I think have only one left on our side compared to what you may have before you.

Yes.

Wait a minute, let's just leave it ``we are near the end.''

I thank the distinguished Democratic whip and my colleague from Michigan. The unanimous consent agreement is in order. The vote should start momentarily.

Yes. Could the Senator, in the interim, talk to his cosponsors on both sides of the aisle and give me an estimate of the time that would be required?

Without a rollcall vote.

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

Madam President, I move to reconsider the vote.

Two minutes on each side.

Madam President, my amendment does everything that my colleague stated as a desired goal. His amendment goes a step further. This is the reason we have two votes. He establishes a new criterion for a crime that could result in incarceration up to 20 years. It is so vague that I assure you it could not get through the first year of law school. It says you could go to jail if ``you materially overvalue any good or service.'' There is no regulation, no criterion by which to judge that. As a consequence, this body would be enacting a new criminal statute without any hearings, without any thoughtful process, and would subject the contracting community, which numbers in the tens of thousands of individuals supporting the men and women of the Armed Forces all over the world, to this very vague proposed criminal statute.

I urge strongly that you vote against the Leahy amendment.

I regret that, I say to my good friend, but we cannot put on our books this statute. It would be wrong.

Yes, Madam President. I yield it knowing that the good wisdom and sound judgment of this body will follow my views.

I move to reconsider the vote.

Madam President, my understanding is we will now go off the bill. We will remain off the bill for the remainder of the evening. We now have three votes on judicial nominations. I stand corrected. After the votes on the three judicial nominations, there is a short matter with Senator Sessions. It is in the UC.

Madam President, I ask unanimous consent that the votes for the three judicial nominations be 10-minute votes.

Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on June 16, 2004, at 9:30 a.m. on The VOIP Regulatory Freedom Act.

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate, on Wednesday, June 16 at 11:30 a.m. to consider pending calendar business.

Agenda

Agenda Item 1: Nomination of Suedeen G. Kelly to be a Member of the Federal Energy Regulatory Commission.

Agenda Item 2: S. 155--A bill to convey to the town of Frannie, Wyoming, certain land withdrawn by the Commissioner of Reclamation.

Agenda Item 3: S. 180--A bill to establish the National Aviation Heritage Area, and for other purposes.

Agenda Item 5: S. 211--A bill to establish the Northern Rio Grande National Heritage Area in the State of New Mexico, and for other purposes.

Agenda Item 6: S. 323--A bill to establish the Atchafalaya National Heritage Area, Louisiana.

Agenda Item 10: S. 1241--A bill to establish the Kate Mullany National Historic Site in the State of New York, and for other purposes.

Agenda Item 14: S. 1467--A bill to establish the Rio Grande Outstanding Natural Area in the State of Colorado, and for other purposes.

Agenda Item 15: S. 1521--A bill to direct the Secretary of the Interior to convey certain land to the Edward H. McDaniel American Legion Post No. 22 in Pahrump, Nevada, for the construction of a post building and memorial park for use by the American Legion, other veterans' groups, and the local community.

Agenda Item 17: S. 1727--A bill to authorize additional appropriations for the Reclamation Safety of Dams Act of 1978.

Agenda Item 18: S. 1957--A bill to authorize the Secretary of the Interior to cooperate with the States on the border with Mexico and other appropriate entities in conducting a hydrogeologic characterization, mapping, and modeling program for priority transboundary aquifers, and for other purposes.

Agenda Item 19: S. 2046--A bill to authorize the exchange of certain land in Everglades National Park.

Agenda Item 22: S. 2180--A bill to direct the Secretary of Agriculture to exchange certain lands in the Arapaho and Roosevelt National Forests in the State of Colorado.

Agenda Item 23: S. 2243--A bill to extend the deadline for commencement of construction of a hydroelectric project in the State of Alaska.

Agenda Item 24: S. 2319--A bill to authorize and facilitate hydroelectric power licensing of the Tapoco Project.

Agenda Item 29: H.R. 1648--To authorize the Secretary of the Interior to convey certain water distribution systems of the Cachuma Project, California, to the Carpinteria Valley Water District and the Montecito Water District.

Agenda Item 30: H.R. 1658--To amend the Railroad Right-of-Way Conveyance Validation Act to validate additional conveyances of certain lands in the State of California that form part of the right-of-way granted by the United States to facilitate the construction of the transcontinental railway, and for other purposes.

Agenda Item 31: H.R. 1732--To amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the Williamson County, Texas, Water Recycling and Reuse Project, and for other purposes.

Agenda Item 32: H.R. 3209--To amend the Reclamation Project Authorization Act of 1972 to clarify the acreage for which the North Loup division is authorized to provide irrigation water under the Missouri River Basin project.

In addition, the Committee may turn to any other measures that are ready for consideration.

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session on Wednesday, June 16, 2004, at 11 a.m., to hear testimony on Strengthening Regulations and Oversight to Better Ensure Agriculture Financing Integrity.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Wednesday, June 16, 2004 at 2 p.m. to hold a Nominations Hearing.

Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet on Wednesday, June 16, 2004, at 10 a.m. in Room 485 of the Russell Senate Office Building to conduct a Business Meeting on pending committee matters, to be followed immediately by an oversight hearing on the implementation in Native American communities of the ``No Child Left Behind Act.''

Mr. President, I ask unanimous consent that the Committee on Indian Affairs also be authorized to meet again on Wednesday, June 16, 2004, at 2 p.m. in Room 485 of the Russell Senate Office Building to conduct a hearing on S. 1996, the Oglala Sioux Tribe Angostura Irrigation Project Rehabilitation and Development Act.

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a hearing on Wednesday, June 16, 2004 at 10 a.m., on ``Judicial Nominations'' in the Dirksen Office Building, Room 226.

Witness List:

Panel I: Senators.

Panel II: Richard A. Griffin, to be United States Circuit Judge for the Sixth Circuit; and David W. McKeague, to be United States Circuit Judge for the Sixth Circuit.

Panel III: Virginia Maria Hernandez Covington, to be United States District Judge for the Middle District of Florida.

Mr. President, at the conclusion of the remarks of our distinguished colleague from New Mexico, I ask unanimous consent that the Senator from Virginia be recognized for about 6 or 7 minutes for the purpose of a colloquy with the Senator from Utah.

Mr. President, our distinguished colleague from Utah wishes to have a colloquy with me. The colloquy represents a number of days of careful deliberations on a point and issue in last year's bill which is of great importance to him. I will follow my colleague after he makes his remarks.

Mr. President, it is my understanding there are others who have associated with the Senator on this matter; am I not correct in that?

Mr. President, I thank my colleague. I think the observations of the Senator from Utah, Mr. Bennett, are important ones. I will work with my colleagues on the other side of the aisle to see if we cannot accept this amendment eventually because it, in all likelihood, clarifies the language that I put in the bill last year.

I think the amendment helps to clarify the intent of the language last year, which in its verbiage requires a specific authorization by Congress to proceed with the engineering development phase or subsequent phase of the robust nuclear earth penetrator and, in my view, that includes a full-scale underground nuclear test on the robust nuclear earth penetrator if such test, in the judgment of the technical community, is deemed necessary.

So I think the amendment can be helpful, and I will work with my distinguished colleagues on the other side, most specifically the ranking member, Senator Levin, to see whether we can adopt it.

I thank my colleague.

Mr. President, I ask unanimous cosent that the order for the quroum call be dispensed with.

Mr. President, I think we have had a very good debate. I thank colleagues on both sides of the aisle for participating in the debate this morning--the Senator from Oklahoma, Mr. Inhofe; Senator Allard; the Senator from Texas; and many of us.

While the vote had been scheduled for a little later to accommodate the needs of several Senators, I ask the desk to recognize that all time has been yielded.

Therefore, if it is agreeable with my colleague from Michigan, we will have a vote.

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

Mr. President, I thank the Senator from Colorado and all others who participated in what I felt was one of the better debates we have had in some time on a very serious issue. I commend the Senator from Massachusetts and others for the manner in which we conducted the debate.

Mr. President, I will now propound a unanimous consent request.

I ask unanimous consent that the time from 2:15 to 3:40 be equally divided between the opponents and proponents of the Smith amendment No. 3183; provided further, that at 3:40, the Senate proceed to executive session for the consideration en bloc of the following nominations: Virginia Hopkins, Ricardo Martinez, and Gene Pratter.

I further ask unanimous consent that there be 20 minutes of debate equally divided between the chairman and ranking member of the Judiciary Committee, or their designees, and that at 4 o'clock today the Senate proceed to a vote in relation to the Smith amendment No. 3183, with no amendments in order to the amendment prior to the vote.

I further ask that following that vote, the Senate then proceed to consecutive votes on the confirmation of Executive Calendar Nos. 563, 564, and 566, with 2 minutes of debate equally divided prior to each vote. I finally ask that following these votes, the President be immediately notified of the Senate's action and the Senate resume legislative session.

Mr. President, that is correct.

The Senator is correct.

The issue I am familiar with is the one the Senator from Connecticut and I debated which has sections (a) and (b).

Mr. President, did the Senator reach any conclusions as to whether he wants to amend his amendment?

I am hoping we can act on that amendment.

I thank the Presiding Officer. I think we will go to the standing order to place the Senate in recess.

Mr. President, it is my understanding that the time is equally divided between the distinguished Senator from Oregon on this side and the Senator from Massachusetts on the other. Am I correct on that?

Mr. President, the distinguished Senator from Michigan does raise a valid point. I will provide the Senate with the individual that controls the opponents' time momentarily.

If the Senator will yield, the Chair inquired as to the management of the time in opposition, and I ask unanimous consent that any Senator desiring to speak in opposition could speak for up to 10 minutes. If he or she desires additional time, we can seek an additional UC for another 10 minutes, and if a quorum is put in it will be charged equally to both sides.

Absolutely.

Yes.

Mr. President, I ask unanimous consent that each of the next three votes be 10 minutes so we can return to the Defense bill.

Mr. President, I wonder if I could address the Senate with regard to the schedule.

We are making good progress on this bill. We have indications of at least four amendments that will be worked on, part this evening and part in the early morning, that could result in three to four votes. We would like to lead off following the established time for morning business, which I understand may be some 30 minutes, at approximately 10 o'clock with debate with the Senator from Connecticut, Mr. Dodd, 15 minutes on each side, followed by a rollcall vote. That would be followed thereafter by Senator Leahy. We are not certain exactly what time. That will require approximately 2 hours equally divided. We have the Bunning amendment which will be brought up tomorrow. And tonight we will lay down an amendment by Senator Reed on end strength. We will start that amendment tonight. There are colleagues on both sides who will want to address that tomorrow.

We will order this evening the final order of these amendments in sequence. If there is any other Senator desiring to move forward with an amendment tomorrow, I urge that Senator to address my colleague or myself.

Yes.

My understanding is he wishes to do that tomorrow where we can get a unanimous consent.

We recognize when the votes are concluded, Senator Reed would lay down his amendment for discussion, we would then do cleared amendments, and that will conclude the actions on this bill for today. When the leadership decides on the opening of the Senate tomorrow, we have 30 minutes for morning business.

We have Senator Reed tonight. We will accommodate Senator Durbin tomorrow with 30 minutes equally divided.

That is correct.

Two hours equally divided at a time mutually agreeable, followed by a vote.

We will incorporate this at the conclusion tonight in a UC. I thank the Presiding Officer, and I thank Members.

Senator Talent, also, will be recognized tonight to lay down his amendment. We will debate that and then look for a vote, if necessary, tomorrow.

Any other Senators desiring to be heard on amendments? Now is a good time.

If not, I yield the floor.