Floor Statements

Mr. President, I would like my colleagues to be aware of an important letter signed by 45 State attorneys general expressing ``grave concerns'' about Representative Barney Frank's Internet Gambling Regulation and Enforcement Act, H.R. 2046.

The State attorneys general note that the recently enacted Unlawful Internet Gambling Enforcement Act of 2006 has ``effectively driven many illicit gambling operators from the American marketplace.'' The Frank bill ``proposes to do the opposite, by replacing state regulations with a federal licensing program that would permit Internet gambling companies to do business with U.S. customers.'' The letter continues:

A federal license would supersede any state enforcement

action, because Sec. 5387 in H.R. 2046 would grant an

affirmative defense against any prosecution or enforcement

action under any Federal or State law to any person who

possesses a valid license and complies with the requirements

of H.R. 2046. This divestment of state gambling enforcement

power is sweeping and unprecedented.

One final but very important point from the letter is the impact of the so-called ``opt-out'' provisions. Specifically, the letter reads:

[T]he opt-outs may prove illusory. They will likely be

challenged before the World Trade Organization. The World

Trade Organization has already shown itself to be hostile to

U.S. restrictions on Internet gambling. If it strikes down

state opt-outs as unduly restrictive of trade, the way will

be open to the greatest expansion of legalized gambling in

American history and near total preemption of State laws

restricting Internet gambling.

The Frank bill is unacceptable to the State attorneys general and it ought to be unacceptable to Members of Congress as well. I urge my colleagues to oppose the Frank bill or any similar proposals that would create a permissive Federal licensing scheme for Internet gambling.

I ask unanimous consent to have printed in the Record the letter from the National Association of Attorneys General.

Mr. President, I join my colleague from Georgia in encouraging support for the motion to proceed so we can begin consideration of this important bill. The reason for the FISA bill is very straightforward. Technology has outpaced the law. We are now able to collect intelligence in ways that were never understood or contemplated years ago when the law was drafted. As a result, we need to change the law to accommodate that collection.

Before we changed the law last year, we had lost about two-thirds of the ability to collect intelligence against al-Qaida. Clearly, in this war against these evildoers, these terrorists, we cannot cede two- thirds of the playing field to them without any monitoring or collection of intelligence against them. When we did the Protect America Act last summer, we regained the capability to collect that intelligence by conforming the legal procedures to the technology that enables us to collect this material.

Al-Qaida has not ceased to exist after 9/11. In fact, it exists and is still desiring to carry out the same kinds of attacks against the United States and other countries that it did on 9/11. We know the incredible amount of damage that can be inflicted if we are not prepared to deal with them. We also know that the best way to deal with al-Qaida and the like is to collect intelligence so we can prevent attacks from occurring rather than worrying about them after they have occurred. That is why it is so important for us to ensure that under the law we can engage in the kind of intelligence collection against al-Qaida that technology today enables us to do.

Many of our friends on the other side of the aisle have insisted that there be stringent congressional oversight of these programs by which we collect the intelligence. No one disputes that is a desirable thing to do. That is why this Congress and previous Congresses have agreed on a bipartisan basis to create robust oversight of U.S. intelligence gathering, even when it is against foreign targets. The agencies executing wiretaps and conducting other surveillance must report their activities to Congress and to others, so the opportunities for domestic political abuse of these authorities is eliminated.

No one is on a witch hunt against Americans. There is more material out there to be collected against foreign targets. Our people certainly don't have time to try to spy on Americans. That is not what is involved. We have to be careful that in creating this oversight we don't cut deeply into the capabilities of our intelligence community, that we don't in effect limit what they are able to do.

If you compare the Intelligence Committee bill with the Judiciary bill, you will see that the Judiciary bill would severely limit this collection of intelligence. Even the Intelligence Committee bill has one major flaw in it. We have to be careful that we don't tie down our Intelligence agencies with so many limits on how they can monitor foreign terrorist organizations that they really cannot respond to the threat that exists.

Let me give one example. The Intelligence Committee bill, which is the bill we are taking up first and which we should adopt, includes a provision that has been labeled the Wyden amendment which, as written, would require a warrant for any overseas surveillance that is conducted for foreign intelligence purposes and targets a U.S. person. As the Senator from Georgia pointed out, we already have protocols to deal with that, to minimize any potential problems that might arise in conducting intelligence that would include a U.S. person. But the way the Wyden amendment is written is overly broad and unprecedented.

Under current law, a warrant would not be required for overseas surveillance that is targeted to a U.S. person if that surveillance is conducted for purposes of a criminal investigation. So consider the anomaly. The Wyden amendment would create a requirement for a warrant to go after foreign terrorists involving also potentially U.S. persons, but it would not require a warrant in those circumstances of drug trafficking or money laundering that involve the very same people. It should not be more burdensome to monitor al-Qaida than it is to monitor a drug cartel. Yet the Wyden provision literally creates a situation where if an overseas group that includes U.S. persons is suspected, for example, of smuggling hashish, no warrant is required, but if the

same overseas group is suspected of plotting to blow up New York City, then a warrant would be required. This is not only anomalous; it is bad policy. It is the very kind of thing that if, God forbid, another attack should occur and we permit this to be written into the law, the next 9/11 Commission will criticize the Congress for writing it into the statute. We can prevent that from occurring by rejecting the Wyden amendment.

Let me conclude by asking: What is our goal? Do we want to allow our intelligence agencies to use the most up-to-date technology to track and prevent attacks by the most evil people in the world today, these al-Qaida terrorists, or are we so concerned about some potential theoretical, possible situation in which an American citizen's communications might be temporarily intercepted, if they call an al- Qaida person or an al-Qaida person calls them, that we are not going to take advantage of these intelligence-collection techniques?

We can write the law to ensure the protection of every U.S. person. We need to do that. But we cannot restrict our intelligence agencies from collecting that intelligence that is out there that might warn us of another attack.

Mr. President, there has been a great deal of debate in recent weeks about whether to fund the needs of our soldiers overseas. The time to act has come.

We are nearing the end of the first quarter of the fiscal year, and despite steady progress in Iraq, Congress still has not passed a funding bill for our soldiers. Members of this body have been aware of the consequences of delaying funding for a long time.

In a November 8 letter, Deputy Secretary of Defense Gordon England explained that failure to fund military operations will ``result in having to shut down significant portions of the Defense Department by early next year.'' The specific consequences, in Secretary England's words, include ``closure of military facilities, furloughing of civilian workers and deferral of contract activity.'' In case there is any confusion about what this means to the military, Secretary England is quite clear: ``this situation will result in a profoundly negative impact on the defense civilian workforce, depot maintenance, base operations, and training activities.''

He also acknowledged that this delay in funding doesn't only harm our military but also sets back the training and equipping of Iraqi and Afghan security forces, whose expeditious development is critical to lasting peace in those nations.

This delay in funding shows a lack of support for our troops in harm's way, disregard for the measurable progress they have achieved in recent months, and indifference to the future of Iraq and Afghanistan. That is not the kind of leadership the American people expect of Congress.

It is time to heed the clear warnings from the Department of Defense, come together in support of the progress our soldiers are making, and provide them with the necessary resources so that they can continue their important work on behalf of the American people.

A December 8 article in the Washington Post by LT Pete Hegseth and GEN John Batista, a prominent critic of the Administration's policy in Iraq, encouraged Americans ``to stand together, in and out of uniform,'' and commit to defeating our enemies. That means supporting the progress our soldiers are achieving and providing them the funds necessary to complete their mission and, thus, make Americans safer.

I ask unanimous consent to have the attached article printed in the Record.

Mr. President, I rise today to discuss the energy legislation Congress is on the brink of passing in these last days of the first session of the 110th Congress. I voted against this legislation in the Senate because it contains numerous provisions that will distort competitive markets for energy through subsidies, Government mandates, special projects, and irresponsible increases in Federal spending. This bill will not promote the goal of energy security but will likely increase fuel and food prices and reduce consumer choice for everything from cars to light bulbs.

First, I want to talk about ethanol. It is difficult to understand why Congress continues to believe that ethanol is a desirable substitute for gasoline. It is widely reported that even if all of the 300 million acres--500,000 square miles--of currently harvested U.S. cropland produced ethanol, they wouldn't supply all of the gasoline and diesel fuel we now burn for transport, and they would supply only about half of the demand for the year 2025. We are not going to grow our way to energy security. We are also starting to see the devastating effects our current ethanol production is having on our scarce water supply, the environment, and human health.

Despite these facts, one of the bill's most prominent features is a five-fold increase in the ethanol mandate from the currently required 7.5 billon gallons by 2012 to 36 billion gallons by 2022. Meeting this mandate will require even more corn-based ethanol and the production of other so-called advanced biofuels, largely made from cellulosic ethanol. Although cellulosic ethanol production is in its infancy and does not exist commercially today, the bill specifies that 21 billion gallons of the 36 billion gallons mandated be cellulosic ethanol. This is nothing more than a congressional gamble with American taxpayer dollars.

If Congress is serious about moving away from oil to alternative fuels it cannot, as it has done here, subsidize political favorites and engage in statutory prescription. This will actually slow energy innovation and may even retard the gains we have made. An excellent example of this point is the exclusion of woody biomass material from our Nation's overgrown forests from the production of advanced biofuels. Companies throughout the West, including many small businesses, are working in partnership with the Federal Government to help restore our national forests by removing this woody biomass material and using it to produce energy. This oversight in the bill complicates these efforts and could seriously slow the gains my home State of Arizona and other Western States dominated by Federal lands have made to combat catastrophic wildfire.

Now, let's turn to the other major feature of this bill--federally mandated increases in corporate average fuel economy, CAFE, standards. This bill requires each manufacturer's fleet to average 35 miles per gallon by 2020, a roughly 40 percent increase over current standards for cars and trucks. What this proposal seems to overlook is that more fuel efficient cars and trucks already exist on the market for those who want them. And as gas prices rise, my guess is increasing numbers of consumers will buy smaller, more fuel efficient cars without being told to do so by Congress. The point is that this is a consumer choice issue. By federally mandating these increases there will be less choice, increases in car sticker prices, and the very real possibility of more unnecessary highway deaths due to the increases in lighter vehicles, which generally are less safe in collisions on the road. A National Academy of Sciences study concluded that vehicle downsizing costs 1,300 to 2,600 lives per year.

Another major problem with the CAFE provisions in the bill is the failure to clarify the regulatory responsibilities of the National Highway Transportation Safety Board and the Environmental Protection Agency over the regulation of tailpipe emissions and fuel economy requirements. The administration in its Statement of Administration Policy makes this point. Failing to address this issue will likely leave industry to sort through layers of contradictory regulation.

Beyond the biofuels and CAFE provisions, the bill includes a full assortment of new efficiency mandates for appliances and buildings and even takes measures to phase out incandescent lightbulbs. Industry in the private sector has already brought to market alternative lighting technologies to the traditional lightbulb, and as prices drop consumers are switching over to them. Provisions like these are nothing more than Congress's attempt to take credit for something the market is already doing and accomplishing far more quickly and efficiently than the government can, I might add.

In sum, instead of enacting poor energy policy, Congress should focus on what it must do before we leave here this year--fund the Government by enacting fiscally responsible appropriations bills and ensuring our troops have what they need.

Mr. President, I rise today to comment on H.R. 660, the Court Security Improvement Act of 2007. Section 509 of the final substitute transfers one seat from the U.S. Court of Appeals for the District of Columbia Circuit to the U.S. Court of Appeals for the Ninth Circuit. The reasons for this change are explained in Senator Feinstein's and my additional views in S. Rept. 110-42.

Section 102 of the bill authorizes the U.S. Marshals Service to provide protection to the U.S. Tax Court, and stipulates that the Marshals Service retains final authority regarding the Tax Court's security needs. The Tax Court has expressed concern to me and to other Members that the Marshals Service should consult with the Tax Court about the costs that it expects to incur for providing security--costs that will be charged to the Tax Court. The Marshals Service has assured Congress that it will consult with the Tax Court on these matters and that it will not surprise the Tax Court with charges that the court may have difficulty paying. Rather than include heavy-handed consultation requirements in the text of the legislation, we have agreed to adopt the bill in its current form on the strength of these assurances.

Section 202 of the bill makes it an offense to disseminate sensitive personal information about Federal police officers and criminal informants and witnesses. The final version extends this offense to also protect State law enforcement officers, but only to the extent that their participation in Federal activities creates a Federal interest sufficient to maintain this provision's consistency with principles of federalism.

Section 207 increases statutory maximum penalties for manslaughter under section 1112 of title 18. I expect the U.S. Sentencing Commission to revise its guidelines for these offenses in light of these new higher statutory maxima. I commented on the need for these changes when the Senate version of this bill passed the Senate earlier this year and would refer interested parties to those remarks and especially to Paul Charlton's testimony, at 153 Cong. Rec. S4739-4741, daily ed. April 19, 2007.

Section 208 increases the penalties for retaliatory assaults against Federal judges' family members. This provision also clarifies an assault offense that was created by Congress in 1994. The offense establishes penalties for simple assault, assault with bodily injury, and for assault in ``all other cases.'' As one might imagine, the meaning of assault in ``all other cases'' has been the subject of confusion and judicial debate. The offense has also been the subject of constant vagueness challenges, and although those legal challenges have been rejected, the offense is rather vague. Section 208 takes the opportunity to correct this legislative sin, codifying what I believe is the most thoughtful explanation of what this

language means, the 10th Circuit's decision in United States v. Hathaway, 318 F.3d 1001, 1008-09, 10th Cir. 2003. A conforming change has also been made to section Ill of title 18, so that sections 111 and 115 will match each other and, again, so that people can easily figure out what this offense actually proscribes.

Section 503 of the bill guarantees that senior district judges may elect to participate in court rulemaking, appointment of magistrates and court officers, and other administrative matters, so long as such judges carry at least half of the caseload of an active district judge. I believe that this provision is a bad idea, though its negative consequences have been greatly mitigated in this final substitute as a result of the intervention of Senator Sessions. Many senior judges are often not present at the courthouse and are disengaged from the work of the court and the life of the court. Moreover, Congress has no business telling the courts how to manage these types of internal organizational matters. Those jurists who share my objection to this provision should be grateful to Senator Sessions, who insisted that the provision be limited to district judges as opposed to circuit judges, that a senior judge be required to elect to exercise these functions, and that a senior judge carry at least half of a full caseload in order to be entitled to assume these powers.

Finally, section 511 adds nomenclature to section 2255 of title 28, a change recommended to me by Kent Scheidegger of the Criminal Justice Legal Foundation. This change has no substantive effect but should make this code section easier for litigants to cite.

Madam President, I rise today to comment on the OPEN Government Act. This bill is only a slightly modified version of S. 849, a bill that passed the Senate on August 3 of this year. At that time, I made a more complete statement regarding the bill--see 153 Congressional Record at S10987 to S10989 in the daily edition of the Record,, on August 3, 2007--as did Senators Leahy and Cornyn--see the Record at S10986 to S10987 and S10989 to S10990. Thus my remarks today need only describe the changes made to the bill and a few other matters.

One section of the bill that makes important changes to the law and thus deserves comment is section 6. Although this section appeared in S. 849, I did not address the provision in August because final negotiations regarding the language of that section were completed only an hour or so before we began a hotline of the bill. The purpose of section 6 is to force agencies to comply with FOIA's 20-day deadline for responding to a request for information. The original introduced version of S. 849 sought to obtain agency compliance by repealing certain FOIA exemptions in the event that an agency missed the 20-day deadline, an approach that I and others argued would impose penalties that were grossly disproportionate and that would principally punish innocent third parties--see S. Rep. 110-059 at 13-14 and 15-19. The current draft applies what is in my view a much better calibrated sanction, the denial of search fees to agencies that miss the 20-day deadline with no good excuse.

Several features of this new system merit further elaboration. First, the 20-day deadline begins to run only when a FOIA request is received by the appropriate component of the agency, but in any event no later than 10 days after the request is received by a FOIA component of the agency. The reasoning behind this distinction is that requesters should receive the full benefit of the 20-day deadline if they make the effort to precisely address their request to the right FOIA office, and that they should also be protected by the secondary 10-day deadline if they at least ensure that their request goes to some FOIA component of the agency. So long as a misdirected request is sent to some FOIA component of an agency, it is reasonable to expect that such component will be able to promptly identify that missive as a FOIA request and redirect it to its proper destination.

On the other hand, if a FOIA request is sent to a part of an agency that is not even a FOIA component, it is difficult to impose particular deadlines for processing the request. For example, if a request is sent to an obscure regional office of an agency, it will probably simply be sent to regional headquarters. Many agencies have a large number of field offices whose staff handle very basic functions and are not trained to handle FOIA requests. Such staff probably will not recognize some requests as FOIA requests. Implementing a deadline that extended to FOIA requests that are received by such staff would effectively require training a large number of additional agency staff in FOIA, something that Congress has not provided the resources to do.

Also, because this bill imposes significant sanctions on an agency for a failure to comply with the 20-day deadline, it is important that the deadline only begin to run when the agency can reasonably be expected to comply with it, and that the law not create opportunities for gamesmanship. If the deadline began to run whenever an agency component receives the request, for example, sophisticated commercial requesters might purposely send their request to an obscure field office in the hope that by the time the FOIA office receives the request, it will be impossible to meet the deadline, and the requester will thereby be relieved from paying search fees. Given the wide variety of types of FOIA requesters, Congress cannot simply assume that every requester will act in good faith and that no requester will seek to take advantage of the rules. The present bill therefore initiates the 20-day deadline only when the request is received by the proper FOIA component of the agency, or no later than 10 days after the request is received by some FOIA component of the agency.

Section 6 of the bill also allows FOIA's 20-day response deadline to be tolled while an agency is awaiting a response to a request for further information from a FOIA requester, but only in two types of circumstances. Current practice allows tolling of the deadline whenever an agency requests further information from the requester. Some FOIA requesters have described to the Judiciary Committee situations in

which some agencies have abused this process. For example, some agencies, when they are about to miss the 20-day deadline, allegedly have contacted a requester to simply inquire whether the requester still wants the request, or with other frivolous inquiries, all for the purpose of obtaining tolling of the deadline. Such practices should not be permitted. On the other hand, agencies do have a legitimate need for some tolling of the deadline. The language of subclauses (I) and (II) is the result of hard-fought negotiations between the FOIA requester community and representatives of the agencies, negotiations to which Senator Leahy and I, frankly, served more as mere conduits rather than full participants. This language allows tolling whenever and as often as necessary to clarify fee issues, and also allows one additional catch-all request with the stipulation that this additional request must be reasonable.

With regard to the tolling for requests for information relating to fee assessments that is authorized by subclause (II), neither agencies nor requesters would benefit if agencies could not contact requesters and toll the deadline while waiting to hear whether a requester still wanted the request in light of, for example, a substantial upward revision in the search fees that would be assessed in relation to a FOIA request. And because such upward revisions might occur multiple times as a request is processed, it is not practical to impose a numerical limit on such fee-related requests. Such requests need only be necessary in order to be entitled to tolling under this subclause. Presumably, a request as to whether a requester still wanted his request in light of a trivial upward revision in the search-fees estimate would not be ``necessary,'' and therefore would not be entitled to tolling. Moreover, tolling only occurs while the agency is awaiting the requester's response. If an agency were to call or e-mail a requester and inquire whether he still wanted the request in light of a $100 increase in estimated review or search fees, and the requester immediately responded yes, no tolling would occur. At least at this time, it is not apparent how this tolling exception could be abused.

With regard to the catch-all requests authorized by subclause (I), representatives of the agencies identified for the committee a wide array of additional reasons for which agencies reasonably need to request additional information from the requester and should be entitled to tolling. The agencies' representatives, however, also thought that an agency would not need to make more than one such non- fee-related information request. Since the agencies are the masters of their own interests, we have incorporated that limit into this bill, allowing the agencies to make a tolling-initiating request for any purpose and in addition to previous fee-related requests, with the additional stipulation that these one-time requests also be reasonable.

Additional changes were made to this bill from S. 849. This bill omits section 8 of the August-passed bill. The former section 8 maintained the requirement that previously enacted statutes only be construed to create exemptions to FOIA if the statute at least established criteria for withholding information, but required that future statutes instead include a clear statement that information is not subject to release under FOIA. I only grudgingly accepted former section 8 since I do not favor the use of clear statement rules in this circumstance. The rule likely would serve as a trap for unwary future legislative drafters. Under such a rule, even a statement in a statute that particular information shall not be released under any circumstances whatsoever would be construed not to preclude release of the information under FOIA. On the other hand, some FOIA requesters came to have second thoughts about section 8's elimination of the requirement for future legislation that FOIA exemptions at least set criteria for what information may be withheld. In my view, it would not be practical to require a clear statement in addition to requiring that exemptions only be implied when release criteria are identified. At the very least, it would pose a difficult question of statutory construction were a court asked to construe a statute to allow information to be ``FOIAble'', despite a clear statement in the statute that the information was not subject to release under FOIA, because the statute did not also set criteria for withholding the information. I have never seen such a ``clear-statement-plus rule.'' I think that simple clear-statement rules themselves reach the zenith of one legislature's power to bind future legislatures, and that a ``clear- statement-plus rule'' would cross that line. Given the preference of some advocates for this bill for keeping the requirement that FOIA exemptions identify withholding standards or criteria, and my objection to combining a clear-statement rule with additional requirements for identifying a FOIA exemption, the compromise reached in this bill was simply to strike the previous section 8.

This draft also includes a provision that is now subsection (b) of section 4 that requires that attorneys' fees assessed against agencies be extracted from the agencies' own appropriated budgets rather than from the U.S. Treasury. This change was necessary in order to avoid an unwaivable point of order against the bill in the House of Representatives under that body's pay-go rules. I do not like this provision. As I explained in my August 3 remarks, I believe that section 4 already awards attorneys' fees too liberally in the circumstances of a settlement. Effectively, it protects an agency from fee assessments not when the agency's legal position would prevail on the merits, but rather only when the requester's claims would not survive a motion to dismiss or for summary judgment. I believe that this standard will discourage agencies from settling--even a case that the agency believes that it will win at trial it likely will be disinclined to settle if the agency believes that the claims would not be dismissed on summary judgment. Subsection (b), by extracting the fees out of the agency's own budget, substantially aggravates section 4's de facto no-good-deed-goes-unpunished rule, and will further aggravate section 4's tendency to discourage agencies from settling FOIA lawsuits. Unfortunately, we have been unable to identify any way of solving the bill's pay-go problems other than by partly repealing or delaying the implementation of parts of the OPEN Government Act, solutions to which advocates for the bill balked. The effects of subsection (b) should be monitored and, if the provision is as discouraging of settlements and disruptive to agency budgets as I fear that it might be, perhaps the provision should be repealed or a separate fund established to pay the fees assessed pursuant to FOIA's fee-shifting rules.

Finally, the bill includes two changes that were sought by the House. One is to expand section 6's denial of search fees to agencies that miss the response deadline to also include duplication fees in the case of media requesters and other subclause (II) requesters who already are exempted from search fees. Since these requesters already do not pay search fees, in their cases the threat of denying agencies such fees if the 20-day response deadline is not met is not much of a sanction. Although duplication fees for idiosyncratic requests sometimes are massive and denying such fees in all cases would be excessive--paper and toner do cost money--it is my understanding that media and other subclause (II) requesters typically make narrow and tailored requests that do not result in massive duplication costs.

The last change made in this bill is the addition of the new section 12, which requires that when an agency deletes information in a document pursuant to a FOIA exemption, that it identify at the place where the deletion is made the particular exemption on which the agency relies.

Overall, I believe that the bill that will pass the Senate today strikes the right balance and that it will improve the operation of the Freedom of Information Act, and I encourage my colleagues to support this legislation.

Mr. President, I support the Klobuchar amendment because it moves farm policy in the right direction. It would limit commodity program payments for those farmers who earn more than two-thirds of their income from farming, after expenses are deducted, to $750,000.

The amendment, however, has a number of problems. For example, rather than applying the savings achieved by tightening the payment limitations to deficit reduction, it applies most of the savings to other farm programs. It also does not apply the stricter income test to conservation program payments. Nevertheless, the amendment takes a step forward in reining Federal spending on farm subsidies and, therefore, warrants my support.

Vote On Amendment No. 3810

Mr. President, it is obvious by now we are not going to be able to conclude some of our business through the process of getting concurrence from the other side. There are two emergency matters that do cry out for treatment quickly and, therefore, I will propound two emergency unanimous consent requests.

The first has to do with border funding. Twice this year, the Senate overwhelmingly--in fact, in 1 day--unanimously approved $3 billion for increased border fencing, 23,000 additional Border Patrol agents, 300 miles of vehicle barriers, 700 linear miles of fencing, 105 ground- based radar and camera towers, 4 unmanned aerial vehicles, and increased the detention capacity to 45,000. Twice that was passed, but it is still not law. We are coming up to the end of the year. It has to be done.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. 2348, the Emergency Border Funding Act, and I ask unanimous consent that the bill be read the third time and passed; that the motion to reconsider be laid upon the table; that any statements relating to the bill be printed in the Record.

Mr. President, if that is a unanimous consent request, since we obviously have no idea what that conference report is, whether it includes anything else, obviously we cannot do that. If that is a unanimous consent request, obviously, we cannot agree and I will object.

The question is, Is there objection to the unanimous consent I propounded?

Mr. President, it is certainly nice to have an assurance that we will soon be passing it, with only a few days remaining in the session. Obviously, we need to pass it. The reason for my request was in the event it is not done later. I think we are tempting fate.

The other request I will make relates to another emergency matter. Last August, in a bipartisan fashion, we filled a very dangerous hole in our terrorist surveillance capabilities by passing the Protect America Act, which updated our Foreign Intelligence Surveillance Act by giving our law enforcement professionals the tools they need to keep up with modern technology to monitor terrorists overseas. That act expires in February. We are not here that many days between now and then. Obviously, the terrorist threat continues; it is not going to expire. We need to permanently extend this critical law enforcement tool to make sure our American telecommunications companies, which bravely answered the call to help their country when asked to do now, do not have to respond to frivolous lawsuits as a result of their patriotism.

I hope my colleagues will join me in seeing to it that the Protect America Act can be passed and made permanent.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of a bill to make permanent the Protect America Act, the text of which is at the desk, and that the bill be read the third time and passed and the motion to reconsider be laid upon the table.

Mr. President, again, I appreciate the assurance that this will be done by February 1, when it has to be done, or all of the authority to collect this intelligence expires. It has to be done. I think we are in session maybe 1 or 2 weeks, potentially, when we come back before that date. If we don't do it, our country is in grave jeopardy. I would have thought perhaps a better way to resolve that is to do it now so we don't have to wait again until the very last minute to accomplish something that is so important for the security of our country.

I yield the remaining time to the Senator from Texas.

Mr. President, I was called off the floor just as the majority leader was saying some very nice things about me. I heard most of them, but I regret I didn't hear them all. I will ask him to repeat them privately. But in any event, it is true we are neighbors and as a result have had an opportunity to work together on a lot of items. It doesn't matter which side of the aisle we are on, we can certainly do that.

I also appreciated the old story about the lawyers who fight for their clients' interest during the day, going at it tooth and nail, but when the day is over they get together. But as I heard the story it wasn't that they got together for a sandwich, I always thought they got together for a drink at the end of the day. But recognizing the majority leader's bent, I appreciate the story, and he certainly has my assurance that I will approach the position, which eventually I will take in a matter of a few days, in that same spirit.

Again, I appreciate the comments he made.

Thank you, Mr. President. I thank my colleague from Texas for his comments about the Foreign Intelligence Surveillance Act and would like to expand on those a little bit more.

The Foreign Intelligence Surveillance Act we sometimes refer to as FISA or the FISA law. It is important we understand why we need to update this FISA law. In a word, it has to do with the fact that technology has moved forward faster than our ability to change the law. As a result, as the Senator from Texas just noted, we lost about two- thirds of the intelligence gathering on al-Qaida that we could have intercepted and were previously intercepting when it became clear we needed to change the law to keep pace with the advances in technology.

In the Protect America Act we restored access to that information, and we are now back to collecting that information. But the Protect America Act expires on February 1. As a result, we are now back to reauthorizing that act in a permanent way. We need to do so because, again, if this authority lapses, we are back to where we were when we were losing two-thirds of the information that we should be gathering on al-Qaida.

It is not as if we do not understand this is a serious problem. Al- Qaida still exists. It has not been destroyed. We know what it has done. We know what it would like to do. We know they continue to plot. It is critical for us not to ignore the threat. Of course, the first step in dealing with it is to do the best possible job we can in monitoring communications between people who would do us harm.

We all agree that congressional oversight is important to the effort, and all of the legislation we have adopted has enhanced congressional oversight. That is a good thing. That is not in question. But you do not have congressional oversight so oppressive that the intelligence folks cannot collect the information they need to collect. We need to be careful that in redrafting FISA we do not actually impede our intelligence collection in the name of congressional oversight.

There are some problems with legislation that came out of our committee, the Judiciary Committee--some big problems--much less so with the bill that passed out of the Intelligence Committee. Even Members who objected earlier agreed, and I think have agreed, we can provide the necessary statutory authorization for the President to act, and I think most would agree we have to have such authorization in place to deal with groups such as al-Qaida. But their concern was we simply wanted to have congressional authority for it, and that is what the act has done.

We have to be careful that in granting the authority we do not attach so many conditions to it that, once again, it is impossible for the intelligence agencies to do the job we have mandated they do. As I said, the bill reported out of the Judiciary Committee, and to some extent even the bill from the Intelligence Committee, does tie down our intelligence agencies with too many limits on how they can monitor foreign intelligence organizations.

What we are really looking at is some of my colleagues' efforts to take away core responsibilities and authority that the President has to protect our Nation in gathering foreign intelligence.

Let me cite a couple of examples. The Judiciary Committee bill makes FISA the ``exclusive means''--that is the language--of gathering foreign intelligence absent express statutory authority. That is too narrow. In other words, what it is saying is, if another intelligence- gathering tool is not actually authorized by a statute, then it cannot be used to gather intelligence on a group such as al-Qaida.

One obvious example of this is grand jury subpoenas. They are authorized by rules of evidence, not by a Federal statute. The way the Judiciary Committee bill appears to be written, the United States could not even use grand jury subpoenas to gather information about al-Qaida. Obviously, that is not an intended result--at least I would hope not-- but it is one of the things that would have to be fixed if we were to consider the Judiciary Committee bill.

Another provision is in both bills, and it has been referred to as the Wyden amendment, named after my good friend and colleague from the State of Oregon. But as that provision is written, a warrant would be required for any overseas surveillance that is conducted for foreign intelligence purposes and is targeted against a U.S. person.

Under current law, however, a warrant would not be required for overseas surveillance targeted at a U.S. person if that surveillance is conducted strictly for a criminal investigation. So you have the anomaly where a much lesser standard exists for mere criminal investigations and the tough standard for the intelligence community to try to meet exists for gathering foreign intelligence against terrorists, when you want to be able to gather that intelligence and may need to do so in a very quick fashion in order to prevent an attack.

So the Wyden amendment would create the anomaly whereby U.S. overseas surveillance in the course of, say, drug trafficking or money laundering does not require a warrant, but foreign surveillance against a terrorist does. That is not a wise way to write the statute. It should not be more burdensome to monitor al-Qaida than it is to monitor a drug cartel. So that, obviously, would need to be fixed.

Moreover, many foreign terrorist organizations engage in both terrorism and ordinary criminal behavior such as drug smuggling or money laundering. This provision, unfortunately, creates the perverse incentive for U.S. agents to monitor a group for its criminal activities rather than on account of its terrorist activities. The provision literally makes it easier to monitor a group on account of its smuggling of marijuana than on account of the fact that it is a foreign terrorist organization. These kinds of artificial distinctions, obviously, make no sense and overly complicate the mission that is very difficult to begin with that we have asked our intelligence community to engage in.

In another area the Judiciary Committee stripped provisions from the Intelligence Committee bill that protect from lawsuits those telecommunications companies that have assisted U.S. intelligence agencies. This is very wrong. These companies were asked by the United States to help monitor al-Qaida after the September 11 attacks. Being patriotic Americans who wanted to help the United States in responding to the threat, the phone companies agreed to provide the help, and now they are being punished with lawsuits that damage these companies' reputations and are very expensive for them to respond. These companies helped us after September 11. They are not going to help again if we do not protect them from these types of lawsuits. The Intelligence Committee bill included a provision in the bill to do exactly that. Yet that provision was stripped, as I said, in the Judiciary Committee. It took away the protection for those who helped monitor al-Qaida. We need to restore that protection for these folks who helped us.

The bottom line is, what is our goal? Do we want to allow our intelligence agencies to be able to use every legal tool at their disposal to track al-Qaida communications or do we want to again tie up our intelligence agencies in restrictions and procedures and then have some future 9/11 Commission--after, God help us, perhaps another terrorist attack--say Congress balled this up and included so many restrictions on intelligence gathering that they were not able to find out this attack was about to occur?

We have to enable our intelligence agencies, not unduly restrict them. Obviously, we need oversight to prevent abuses. That is included in the statutory language, and that is fine. But it does not make sense to impose other restrictions that primarily serve only the purpose of preventing us from collecting good intelligence. There is no excuse, in effect, for making the same mistake twice.

So, in summary, we are going to be dealing with the FISA reform on the floor of the Senate very soon. We need to. The authorization that currently exists expires on February 1. We need to have something in place before that occurs. The bill that came out of the Intelligence Committee by and large will provide the intelligence collection authority that is needed, although there are some problems with it as well. But the provisions that came out of the Judiciary Committee will not work. They will not allow our intelligence collection agencies to do their job properly and, as I said, create the anomalous situation where it is easier to go after intelligence on a criminal enterprise than it is against a terrorist organization. That cannot be.

So I hope my colleagues, when we bring this bill to the Senate floor, will consider the future, the threat of groups such as al-Qaida, and understand it is up to us to ensure our Nation can be protected and not make the same mistake we made before of unduly restricting our intelligence-gathering agencies in fulfilling the mission--the so very important mission--we have asked them to perform.

Mr. President, I have never opposed a free trade agreement, FTA, although I have sometimes had reservations or concerns about different elements of the agreements.

I believe free trade encourages economic growth, improves living standards by making a wider variety of goods and services available at more affordable prices, and creates good-paying jobs. In fact, exports from the U.S. account for more than 10 percent of our annual gross domestic product and one in six manufacturing jobs are related to exported products.

I also understand that the benefits of trade accrue not only to Americans, but also to workers in other countries; but this is also to our benefit. The more free trade encourages economic growth and job creation around the world, the more demand there will be for high-value American products and services. Trade fosters closer economic relations with other countries and those economic ties generally lead to improved political relations, which benefits our national security.

For these reasons, I have been a strong, consistent, and vocal supporter of free trade. And for these reasons, I take my vote against the Peru FTA today extremely seriously. I have decided to oppose the Peru FTA not because I have any quarrel with Peru or because I am in any way opposed to expanding our bilateral trade relations with Peru. In fact, I strongly support the original Peru FTA.

My opposition to the Peru FTA is rooted entirely in the agreement reached by the U.S. Trade Representative, USTR, with Members of the other body in May of this year. That agreement forced the U.S. to renegotiate the Peru, Panama, and Colombia FTAs to add new requirements for labor and environmental protections and weakened traditional trade agreement protections for certain U.S. intellectual property, IP, related to pharmaceutical products.

I am concerned about the labor and environment provisions, but I am simply puzzled by the intellectual property changes. I am not sure what my colleagues hoped to gain by weakening standard protections for U.S. intellectual property through this trade agreement. I see no reason why U.S. legislators would want to weaken the ordinary protections that are normally accorded to pharmaceutical intellectual property in our bilateral trade agreements. Peru did not, in the course of negotiations, ask us to weaken the IP requirements. Peru was perfectly willing to abide by the greater protections of the original FTA.

If the goal of these changes was to provide better access to lifesaving medicines in Peru, I worry that their effect could have the exact opposite result. Countries with weaker IP protections will have a difficult time encouraging U.S. companies to do business there. Respect for private property--including intellectual property--is essential to encouraging innovation. Without assurances that new and creative products and services will not be stolen by unscrupulous competitors or forcibly devalued by governments, there is a reduced incentive to take the economic risks that are necessary to achieve groundbreaking inventions.

And why should we expect that those who want to weaken protections for U.S.-owned intellectual property will stop at pharmaceuticals? Are computers, movies, music, and other products that involve valuable U.S. intellectual property next? U.S. intellectual property is one of our most valuable exports; it is not in the national interest of the United States to unilaterally weaken protections for it.

I would like to share some statistics that underscore my concern for protecting U.S. intellectual property. First, IP-related industries provide some of the highest quality jobs in the U.S. According to some studies, IP-related jobs pay as much as 40 to 50 percent more than jobs that are not dependent upon intellectual property. That means that devaluing U.S. intellectual property will hurt U.S. workers. Further, economists estimate that over 50 percent of U.S. exports depend upon intellectual property protection of some sort, up from below 10 percent 50 years ago. My colleagues know that theft of U.S. intellectual property is rampant overseas, costing U.S. companies many billions of dollars annually and costing the U.S. economy high-paying jobs. We should use FTAs to enhance protection for U.S. intellectual property, not weaken it.

Finally, I want to explain to my colleagues that I made my concerns known to the USTR on several occasions. When I first began hearing that the USTR might renegotiate the various Latin American FTAs to secure support in the other body, I made sure the USTR knew of my strong concerns about weakening IP protections. As the discussions progressed, six members of the Finance Committee wrote a letter to the USTR in May of this year outlining our very serious concerns with all of the areas under renegotiation: labor, environment, and intellectual property. Finally, when the USTR, Ambassador Schwab, came to meet with members of the Finance Committee this fall I again expressed my concerns about weakening the standard protections that had been traditionally accorded to IP in our other FTAs. Because the administration apparently made no attempt to address our concerns or to assure us that other actions could be taken to enhance protections for valuable U.S. intellectual property, I am compelled to oppose the Peru FTA.

I urge my colleagues to give additional thought to whether it is wise to unilaterally weaken the intellectual property protections we normally include in FTAs. These provisions better not be included in future FTAs or I will work for their defeat.

Mr. President, there is objection on behalf of members of the Republican side. As you know, the Republican leader objected to the same request yesterday. There is objection.

Mr. President, might I be recognized for a moment to comment, as the Senator from West Virginia did, on the birthday of Senator Byrd?

I will be very brief. Certainly, Senator Rockefeller, being Senator Byrd's colleague, with great emotion, I noted, commented on his colleague's birthday.

I hope perhaps coming from someone on the other side of the aisle it will be equally meaningful to recognize Senator Byrd's birthday, but also recognizing his long service here, not just his birthday.

We all hope we can continue to achieve those birthdays, but more important is the ability to represent the people of our State, the people of the United States, and do so over a long and distinguished career.

There are few who have matched Senator Byrd in that regard. I join Senator Rockefeller in extending my best wishes to Senator Byrd, someone who, like me, loves bluegrass music. The only difference is he can play it; I cannot. Happy birthday, Senator.

Mr. President, founding Veterans Day in 1954, President Dwight D. Eisenhower called upon Americans to ``solemnly remember the sacrifices of all those who fought so valiantly, on the seas, in the air, and on foreign shores, to preserve our heritage of freedom. . . .'' Today, we heed the advice of President Eisenhower and pay respect to all soldiers who have sacrificed to ensure America remains free, safe, and the symbol of democracy around the world.

Throughout history, our soldiers have been asked to abandon their livelihoods to defend America's ideals and freedoms. Our soldiers have shouldered this great responsibility with courage, dedication, and honor. In return, this Nation cannot forget the countless sacrifices our soldiers have made for this country. We commemorate these valiant Americans who have protected the liberties and freedoms that all enjoy today.

Congress must do its part to honor our Nation's soldiers. We are profoundly grateful for the many sacrifices that our soldiers have made in the current war against terrorists and in past conflicts. This includes ensuring all veterans receive proper health care, benefits, rehabilitation, and services. Congress will continue to support our veterans.

We are all forever indebted to our veterans. I, therefore, personally thank all veterans and their families for the sacrifices you all have endured. I salute your valor and am immensely grateful for your service.

I had hoped to ask the majority leader a question here, but I think my question has already been answered, so I will simply make this point.

There may be extraordinarily unique circumstances where once in a blue moon it is important to move a very focused piece of legislation in a very hurried period of time so that the majority is warranted in setting up a process such as that which has been established for this bill, where there are no amendments unless the majority leader says so. But that is not the situation with this bill. It never has been with the farm bill. This is the bill we are debating that we are taking up. And to suggest that the Senator's prerogative to offer any amendment--a lot of times they get voted down because they do not have the support-- but the Senator's prerogative to offer an amendment is going to be eliminated through the gatekeeper of the majority leader or any other member of the Senate who can object, is to derogate the basic rule of the Senate and eliminate a basic right of Senators.

I recall not long after I got here, my colleague from Arizona objected to the then-majority on this side establishing a process that was not this drastic, but in some respects limited the right of amendments. He said: The Senate is the body in which any Member has a right to offer an amendment. It will be wrong for us to do that. Our leadership relented, and there were amendments allowed on the other side that got us over that impasse. That is what our minority leader was referring to a moment ago. You cannot impose a sort of dictatorial process where one person gets to decide whether you offer an amendment in the Senate.

Sooner or later that process is going to break down. And on a bill as big as this bill, with as many diverse interests as the Senator from New Hampshire was talking about, it is not right that Senators not be allowed to offer amendments. Again, if they are not good amendments, they are going to be defeated, and they can always be tabled at any time, so they do not have to take up time. If I offered a silly, nongermane amendment, any of my colleagues could immediately move to table that amendment. Assuming it was simply nongermane, that motion to table would presumably pass. That whole thing would transpire in less than half an hour.

So it is not about Republicans trying to take too long or offer silly amendments; it is about the regular process which ordinarily allowed us to offer amendments of our choice, not the choice of another Member of the body. I would hope the majority would reconsider, and that we could, after lunch, proceed with the process that is more amenable to all Senators being able to offer amendments they choose to offer.