Floor Statements

Madam President, I thank the Senator from New Hampshire, the ranking member of the committee, for all his hard work and support for those of us who have prepared amendments and would like to offer them.

This is actually the Kyl-Graham amendment. The Senator from South Carolina will be offering this amendment and, incidentally, as soon as we have the exact text typed, we will present that for actual formal submission, but I can begin talking about it right now. Let me begin doing that.

The purpose of this amendment is to demonstrate, I believe, that there is sufficient ability in this budget to take care of a couple of problems that are very important and which we believe should be included within this budget before it gets passed: provisions that provide for the education of American children, provide for capital gains and dividend tax relief to continue to exist both for our families and businesses and the competitiveness of our economy, as well as other provisions which were not included in the underlying budget, such as death tax reform, which I think most of us acknowledge needs to occur and which we need to provide for in the budget.

This amendment Senator Graham and I will be offering in a moment is designed to include these very important provisions which I think most of us support in the budget. Not to do so would clearly represent a very big hole, I suggest, in the budget.

There is a suggestion in the amendment that was offered by the Senator from Montana and others that what Republicans have been saying about this budget resolution--namely, that it raises taxes on every American taxpayer--is, in fact, the case because as approved by the Budget Committee on a party-line vote, I might add, this budget raises taxes by $916 billion over the 5 years of the budget, which would be, of course, the biggest tax increase in the history of the country.

The chairman of the Senate Finance Committee, the Senator from Montana, well understood this, and I suggest probably is the reason for his offering of the amendment to reduce the revenue that is projected by the budget resolution and then, in his case, purports to dedicate that revenue to middle-class tax relief. He wouldn't be offering this amendment were it not for the recognition that there is a huge tax increase in the budget that came from the Budget Committee.

So I submit, to begin this conversation, that Senator Baucus's amendment is a good start, but it leaves in place the tax hikes on millions and millions of Americans, and that is not something most Republicans want to see.

If the Baucus amendment is adopted, then Democrats will be proposing to raise taxes on hard-working Americans by $736 billion over 5 years, rather than the $916 billion, still the biggest tax increase ever. We don't think this is right.

Incidentally, on a technical note, according to the Republican Budget Committee staff, the Baucus amendment increases the deficit in 2010 and 2011. This is important. When the interest is factored in, the Baucus amendment would take the budget out of balance in 2012 by some $6 billion. In the past, the Budget Committee members have had an informal agreement that interest would not be computed for amendments because it would be too cumbersome.

While this amendment would take the budget further into deficit-- preventing tax increases is more important than worrying about a small, manageable size deficit--it may be interesting to note that the Baucus amendment would have this effect.

In addition to raising taxes, we are talking about increasing the amount of deficit.

The Senator from Montana notes that his amendment would extend the 10-percent bracket, the child tax bracket, the marriage penalty relief, the adoption tax credit, the earned-income tax credit for combat pay, and provide modest estate tax relief. I agree with the Senator on all these policies except with the modesty of the death tax relief.

Senator Baucus and some of his cosponsors, especially the two Senators Nelson, have always supported repeal of the death tax, as have I. So it is disappointing to many family businesses and farm owners that we now have sponsors who had supported the repeal of the death tax endorsing an amendment that would set the death tax rate at what I believe is a confiscatory 45 percent and set the exemption at only $3.5 million, which most of us believe is too low. This leaves more than 22,000 families subject to the estate tax each and every year, according to the Joint Tax Committee.

Another one of the cosponsors of the amendment of the Senator from Montana, the Senator from Arkansas, says on his Senate Web site that he supports a $5 million exemption and a 35-percent rate. I am disappointed he would then be endorsing a proposal that would have a 45-percent rate. A 45-percent rate allows the Government--think about this for a moment--to take almost half a family farm or business over the $3.5 million exempted amount at the time of death.

There is a reason this particular policy has been supported by life insurance companies. I think everybody can understand that. It keeps the onerous death tax in place and would require these family businesses and farms to continue to pay exorbitant premiums to insurance companies.

One of the reasons we would like to eliminate the death tax is so we don't have to pay the burden of trying to avoid the tax, which a lot of these small businesses have to do.

As I said, the Kyl-Graham amendment we think substantially improves the Baucus amendment by modifying the year-to-year revenue numbers so that certain tax provisions that have been essential in helping families pay education expenses essential to our economic recovery, essential to savings for retirement, senior citizens, and families facing the death tax are provided for in this budget. Let me quickly go through them and then ask my colleague, Senator Graham, to make further comments.

On the matter of education, the Baucus amendment fails to extend the many education tax provisions that are scheduled to expire. Our amendment, on the other hand, makes higher education more affordable for middle-class Americans by extending the tuition deduction, extending the modifications to the Coverdell education savings accounts, extending certain provisions for the student loan interest deduction, and for extending the exclusion for employer-provided educational assistance.

These are important provisions to American families. They need to be recognized in this budget.

Our amendment permanently extends the $250 deduction for expenses of elementary and secondary school teachers who, on many occasions, are required to pay for the very school supplies they feel are necessary and are important for educating the kids for whom they are responsible.

These are the education provisions.

On capital gains and dividends, who can argue that the capital gains and dividend tax rate reductions have been two of the most important reasons for the strong economic recovery that our country has made. Yet the Baucus amendment fails to prevent an increase in these two important tax rates.

An extension of the current rates would allow our economic recovery to continue. Allowing these rates to expire and to go back up to where they were would be devastating for our economy and for the competitiveness of our capital markets and, by the way, for the retirement savings of many Americans.

So the Kyl-Graham amendment permanently extends the reduced tax rate for qualified dividends and capital gains for nearly 18 million families and individuals every year. That, too, is an important component that should be in this budget.

Quickly on two items before I turn to the discussion of the death tax, this goes to competitiveness. What our amendment would do is prevent tax increases that would clearly hurt our competitive position in the world economy. We talk about outsourcing of jobs and competitiveness and the rest of it. If you want to know what will save American jobs and will allow us to continue to grow, it is the tax rates that Senator Graham and I preserve in this budget.

America cannot be the home for worldwide capital markets if it is hostile to American investors. So the amendment makes the existing tax rates for long-term capital gains and for qualified dividends permanent tax policy. We understand that the lower tax rates that were implemented in 2003 and extended again in 2006 have been a tremendous success for our economy and have benefited a broad range of American citizens.

Growth, since the 2003 tax relief, has averaged more than 3.5 percent a year, while it averaged 1.3 percent from the first quarter of 2001 through the second quarter of 2003, before these tax rates were put into effect.

The Dow Jones industrial average has risen by 40 percent since the lower investment tax rates were enacted.

The average 401(k) balance has risen by about 65 percent since 2003, very good news for American families and investors.

Why would we want to destroy this tremendous growth in the economic wealth of Americans? All of this investment activity makes it easier for entrepreneurs and businesses to raise funds to expand and grow their businesses, create more jobs, and improve the standard of living for all Americans.

By the way, to answer the question of who benefits by all this, some of our colleagues are prone to suggest it is only the wealthy who benefit. Not so. It is interesting to note that most Americans who are benefiting from these lower tax rates are middle-income taxpayers. Fully 43 percent of tax filers in 2004 reporting capital gains had adjusted gross income of under $50,000. These are not the wealthy; these are not the rich. Just 9.5 percent of filers reporting capital gains had an adjusted gross income of $200,000 or above.

So the majority of Americans benefiting from these lower tax rates, the rates we preserve in the budget if our amendment is adopted, are average, middle-class Americans.

For lower income Americans, the current 5-percent rate for investments, which drops to zero in 2008, is another important but sometimes forgotten benefit, especially, important, I might add, to our senior citizens.

According to statistics calculated by the Joint Committee on Taxation, more than 75 percent of all elderly taxpayers' returns reporting capital gains income have adjusted gross incomes of less than $100,000; more than 40 percent have incomes of $50,000 or less. Again, wealthy, the rich? No, we are trying to preserve lower tax rates for middle-income Americans and for senior citizens who rely significantly on their investment income in their retirement.

Madam President, 79 percent of all elderly taxpayers' returns reporting dividend income have incomes of $100,000 or less, and 44 percent have incomes of $50,000 or less, adjusted gross income. So clearly, continuing these lower tax rates is important for our senior citizens and for middle-income Americans.

Incidentally, these lower tax rates, far from blowing a hole in the budget, have actually helped increase revenues far beyond the projections of CBO.

I note that since 2003, Treasury has collected $133 billion more in capital gains revenue than was originally projected by CBO and exceeded the official CBO projections by 68 percent.

In the meantime, all the additional tax revenue flowing into the Treasury from our growing economy has caused our budget deficit to shrink below 2 percent of GDP, which is below the historical average.

If we stay on this current path, we can see continued increase in revenues, continued reduction in the deficit, and continued growth of our economy, not to mention support for our families and retirees.

Last point. What happens if the budget is adopted without providing for the continuation of these lower tax increases? Last fall, Goldman Sachs conducted a very interesting analysis. They wanted to see how the economy would react if taxes were increased in 2011, as the Democrats advocate.

Their analysis showed that the tax increase, and I am now quoting, ``would almost surely mark the onset of a recession.'' Their analysis assumed that the Federal Reserve would step in and cut interest rates to boost the economy, and I am quoting here, ``In an effort to resuscitate demand, the Fed immediately cuts the federal funds rate, bringing it 250 basis points below the status quo level over the next year and one-half. Despite this, output growth remains well below trend over that period, putting downward pressure on inflation as slack in the economy increases.''

That is a projection of what would occur if this were to happen. We want to prevent this. We want to keep the economy strong and not allow anything that would cause it to go into recession.

Just a final point having to do with the death tax reform. We can't pass a budget that doesn't include an assumption that we are going to reform the death tax. We ought to be repealing the death tax. But what we have done in this amendment is to provide an amount of money that would accommodate the kind of death tax reform that has been supported by both Republicans and Democrats.

Last year, the senior Senator from Louisiana introduced a death tax reform bill, S. 3626, which would provide for a $5 million exemption per estate, indexed for inflation. It would provide for a family business ``carve out,'' a 35-percent rate to taxable estates, and it would begin in the year 2010. The Senator from Arkansas, Mr. Pryor, has endorsed death tax reform that meets these specifics in a statement, according to his Web site.

Now, our amendment provides room in the year-by-year revenue numbers in the budget to accommodate death tax reforms such as those which were proposed by Senator Landrieu and endorsed by Senator Pryor. There have been other Members on the Democratic side of the aisle who have supported proposals I have introduced on death tax reform.

What we are very much hoping is that all of the people, both Republicans and Democrats, who have supported these proposals in the past will remain true to their commitments to their constituents to make sure small farms and small business owners aren't going

to have to prepare for or pay the death tax and that we would make room for that in this budget. If we fail to do that, then clearly we are not going to be able to provide the kind of relief our constituents demand and deserve.

Our amendment provides room in the year-by-year revenue numbers to accommodate death tax reform such as that which has been proposed by our Democrat colleagues and, I would add, that I have proposed as well.

Now, of course, budget resolutions don't dictate policy to the Finance Committee, so it would certainly be our intention to work with a lot of different Senators. I worked with Senator Lincoln in the past, and certainly we would want to work with Senators Landrieu and Pryor and all of the others who have indicated they would be willing to support a kind of death tax reform. As long as we have provided the numbers in the budget as Senator Graham and I propose here, then we can work to make those provisions law.

I would hope we could craft an estate tax proposal that would provide an exemption of at least $5 million, indexed for inflation, that provides workable relief for the smallest estates, and that provides for a top death tax rate which is no higher than 35 percent--no higher than 35 percent. Workable relief could mean a lower rate for the smallest estates; it could also mean a family business carve-out as long as it actually works for small businesses and farms and doesn't drive up their administrative costs and leave them with planning uncertainty.

All of these are goals both Democrats and Republicans have endorsed. We hope our colleagues on both sides of the aisle will therefore agree with us that it is important for us to accommodate in this budget room to extend the important tax provisions for education, capital gains and dividends, and for the estate tax.

Amendment No. 507

Madam President, I understand the amendment about which I have just been speaking is actually at the desk. I would like to call it up at this time, and I ask unanimous consent that Senator Graham be added as an original cosponsor.

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

I yield to the Senator from South Carolina, Madam President.

Madam President, may I say to the Senator, the chairman of the committee, our amendment is some four pages long, and it has the amounts increased and decreased stated. I am sorry I have not totaled up the exact amount and then subtracted out the cuts. I will be happy to try to do that for the Senator.

All of the provisions that we have in this amendment are accommodated by the budget that has been provided to us by the committee. Let me get the exact number.

Madam President, the so-called payment for this is the same as other things are paid for in this budget, by the assumption that revenues will be available. As a result, there is no specific cost, if that is what the Senator is asking.

Madam President, I now have a number. The Senator from North Dakota was very close in the estimate which he gave. I believe the number is $72.3 billion for 5 years, which is very close to the number that the Senator had. Of course, since the budget raises taxes by $916 billion, that more than accommodates what we provide.

Mr. President, I have listened with interest to all of my colleagues who have made a case for changing the law, but I have yet to hear any of them discuss the specific proposal they presumably intend to support. The disconnect is that it does not solve the problem they have identified. It doesn't even begin to solve the problem.

I urge my colleagues, before simply voting on a partisan basis for a bill which is allegedly designed to solve a problem, that they at least ask the question whether it solves the problem they have identified. It does not.

That is why I proposed an amendment that does solve the problem. I urge my colleagues, before they vote in 45 minutes, to read the underlying bill--it is only 2\1/2\ pages--to read my amendment--it is about the same length--and perhaps to listen to 5 minutes of what I have to say.

This is not partisan. We are going to have Republicans and Democrats as President and a Republican- and Democratic-controlled Senate. We want the U.S. attorneys to be nominated by the President, and we want the Senate to be able to act on the nominees. The underlying bill does not guarantee that. In fact, it does not even provide for it. My amendment ensures that happens.

So I urge my colleagues, you have stated the case for a change. Please listen to what I have to say because I think you will see that the bill, the underlying bill, was drafted in great haste; it does not solve the problem. My amendment does. I made several arguments yesterday on behalf of this amendment. I argued that it corrects the flaws in the underlying bill that all of us should want to correct.

Briefly, yesterday, I noted that the committee-reported bill does not ensure the President will nominate a U.S. attorney. That is the first thing we want to happen. Secondly, as a result, therefore, it certainly does not solve this problem my colleagues have been trying to identify here this morning about being accountable for Federal criminal prosecutions.

Secondly, the Senate would have no say in the selection of a U.S. attorney who is appointed by a Federal judge, which the committee- reported bill allows to happen.

Third, I noted that even the district judges themselves do not want to be

placed in the position of selecting the U.S. attorneys. They have found this to be a conflict of interest, and they have refused in some cases to appoint a U.S. attorney.

Fourth, I have argued that the district judges are ill-equipped in selecting U.S. attorneys. By the way, to my knowledge, no one has sought to dispute what I have been saying here.

Fifth--I think this would be of interest to my Democratic colleagues--the committee-reported bill does not even end the practice of allowing an individual to serve as a U.S. attorney without Senate confirmation and without a nomination even being sent to the Senate. The committee-reported bill restores the 1986 to 2006 statutory language, and that language allowed consecutive appointments of interim U.S. attorneys by the Attorney General--the exact practice my Democratic colleagues are criticizing here today. So they permit the continuation of exactly what they object to. It would allow an administration to stack the terms of acting U.S. attorneys and interim U.S. attorneys, which would allow an individual to serve as U.S. attorney for nearly a year without confirmation ever being submitted to the Senate, and perhaps beyond that.

I made these same arguments in a ``Dear Colleague'' I circulated Monday morning. I am going to try to have that letter distributed to the desks of all Senators, so when they arrive, they can at least take a look at it and evaluate what I am saying.

Yesterday, I had expected that opponents of my amendment would come to the floor and respond as to why they disagreed with my amendment. A significant number of Democratic Senators did come to the floor yesterday and today to speak to the bill. All of them urged passage of the bill. Not one of them even mentioned my amendment, an amendment the Senate will be voting on in about 45 minutes.

My staff ran a computer search this morning to see if someone at least had the decency to submit a statement for the record explaining why they opposed my amendment. No such statement exists. I listened carefully to the speeches this morning. All made a case for a change. Not one referred to the underlying bill or showed how it solves the problem, because it does not, and not one referred to my amendment, which, as I said, does solve the problem they have identified.

I understand this issue has become very political. I understand there is great pressure within the Democratic caucus to vote down any amendments to preserve an undiluted victory over the administration. But this has nothing to do with the political issue that is raging out there; it has to do with solving a specific problem we have all agreed exists with the existing law, a problem not solved by the underlying bill.

I would urge my colleagues to think before they jump over this cliff. We are all elected to a 6-year term for a reason: We are given this much time so we can stop and think about things and not be rushed into decisions that in retrospect do not appear to be a very good idea. That is how the legislation got into the PATRIOT Act that everybody is complaining about today. We are going to be compounding one mistake, I expect, with another.

Allow me, therefore, to make one final pitch to my colleagues on the Democratic side who presumably simply will follow the leader and vote against my amendment without having read it or the underlying bill. If you think about the long term, I think you will agree that my proposal is the one that makes sense. But let us think about the short term and compare how the committee-reported bill and my amendment would operate over the remaining 2 years of this administration. Let's see how they work.

Under the committee-reported bill, which presumably would be signed into law maybe in April, all interim U.S. attorneys would continue to serve for another 120 days until sometime in July. What would happen then, after that 120 days? One of three things could happen.

A district judge could pick a U.S. attorney. Well, the Senate has no say in that. Most judges who do so are very likely to reappoint the current interim U.S. attorney. If the judge does so, that interim U.S. attorney could serve through the remainder of this administration without a nomination ever having been sent to the Senate.

The second alternative is that if the district judge does not choose to appoint an interim U.S. attorney, the Attorney General could then reappoint the current one to one or more consecutive terms--the very thing all of my colleagues on the Democratic side have objected to here, that the Attorney General could appoint an interim U.S. attorney. That judicial district would have a U.S. attorney, likely for the remainder of the administration, who was not submitted to or confirmed by the Senate.

The third possibility under the committee-reported bill is that after the 120 days are up, sometime in July, the administration could simply designate the interim U.S. attorney as the acting U.S. attorney--a designation that could last until March of 2008 without a nomination having ever been submitted the Senate. By March of 2008, it is likely that no nomination would ever be submitted to the Senate and that the acting or interim U.S. attorney would simply be recess-appointed for the remainder of the President's term.

In all three scenarios, no Presidential nomination, no Senate confirmation or consideration of the nominee--the very thing the Democrats here are objecting to would continue to exist under the bill so many of them have spoken in support of.

The bottom line is, if the Senate blindly votes down my amendment and passes the committee-reported bill without fixing any of its flaws, the judicial districts that have no Senate-confirmed U.S. attorney today will stand an excellent change of having no Senate-confirmed U.S. attorney for the remainder of this administration.

Compare this to the result that would happen if my amendment were adopted. Under my amendment, the interim authority is repealed in its entirety. In other words, the main thing my Democratic colleagues have complained about--that Attorney General Gonzales can make an interim U.S. attorney appointment--would be gone. He would not be able to do that anymore. Not so under the bill.

Under my amendment the President would be required to nominate a U.S. attorney candidate within 120 days; obviously, by the middle of summer. Under my amendment, even if the President doesn't comply with this deadline because acting authority expires after 210 days if no nomination is submitted, the President would be forced to nominate a U.S. attorney before the end of the year. The bottom line is, if my amendment is adopted, all judicial districts in the country will have a Senate-confirmed U.S. attorney or at least a nomination pending in the Senate for most of the remainder of the administration.

Just in case my colleagues think I am kidding, lets look at the underlying bill. This is all there is to it. There is not a whole lot here. Let's read what it says. First, it says:

The Act may be cited as the ``Preserving United States

Attorney Independence Act of 2007.''

That is a misnomer if I ever heard one. Why? The code is amended by striking the provision above and inserting the following:

A person appointed as United States Attorney under this

section may serve until the earlier of--

(1) the qualification of a United States attorney appointed

by the President--

That is the normal process--

or

(2) the expiration of 120 days after appointment by the

Attorney General under this section.

Wait. I thought the object was not to have the Attorney General appoint U.S. attorneys. Let's read this again:

Or . . . the expiration of 120 days after appointment by

the Attorney General under this section.

So under the underlying bill, the Attorney General still gets to appoint interim U.S. attorneys. Not so under my amendment. That section is repealed. Or, third:

If an appointment expires under subsection (c)(2), the

district court for such district may appoint a United States

attorney until the vacancy is filled.

The district court, for all the reasons we have discussed, is not the best entity to be appointing a U.S. attorney. All of us would agree it would be preferable not to have the district court do that. In any event, if the object is to preserve the Senate's ability to evaluate a

nominee and to act on that nomination and reject it or confirm the individual, we have no such authority if the district judge appoints the U.S. attorney.

So there are three possibilities. That the President would nominate is one; but if he does not, there is no penalty. For those who argue that the President is trying to get by with something by having his Attorney General appoint interim U.S. attorneys who never have to be confirmed by the Senate, under this first point the President can simply do nothing, and then his Attorney General can appoint an interim U.S. attorney. I thought that was what we were trying to avoid. If the Attorney General doesn't do it, then a Federal court judge can do it. In none of those cases does the Senate have anything to say about it.

Clearly, the bill doesn't solve the problem that everybody has identified. My amendment, on the other hand, does. It does so in three specific ways. This is all of one page and three lines. It is not hard to read. What we say is that under the new law, if my amendment is adopted, section 546 of title 28 is repealed. That is the interim appointment authority of the Attorney General, the thing that everybody is objecting to: Alberto Gonzales is going to appoint an interim, and the Senate will never have a chance to act on that nominee. My amendment eliminates his ability to do that or any subsequent Attorney General, unlike the underlying bill.

So how would we fill the vacancy?

Not later than 120 days after the date on which a vacancy

occurs in the office of United States attorney for a judicial

district, the President shall submit an appointment for that

office to the Senate.

My amendment, unlike the underlying bill, requires the President to make a nomination within 120 days. Why? A, the President should be making these nominations--as we all agree--B, the Senate would then have the ability to act on that nomination. How do we know? Because we also say that 120 days after the date of submission of an appointment under paragraph 1, ``the Senate shall vote on that appointment.'' So we have ensured that the President will make a nomination and that the Senate will act on that nominee.

People have said: But you can't sue the President for not actually nominating someone. So we have a final provision that creates a very strong incentive for the President to nominate to fill the vacancy:

If the President fails to comply with paragraph (1) with

regard to the submission of any appointment for the office of

United States attorney, paragraph (2) of this subsection

shall have no force or effect with regard to any appointment

to the office of U.S. Attorney during the remainder of the

term of that President.

What that means is that the President has a very strong incentive to nominate people to fill the vacancy so that the Senate can act on that nomination because, if he fails to do so, the requirement that the Senate act on his nominations for U.S. attorney is vitiated for the remainder of his term. He no longer has any assurance that his nominees will be acted upon by the Senate.

This is about as simple--it is all on one page--a way of solving the problem that I can imagine. Let me summarize. The problem my colleagues have suggested is that in the PATRIOT Act we put a provision that allows the Attorney General to fill vacancies with an interim U.S. attorney, and the Senate has no say-so. Under the bill, that exact process continues. It is not changed. We haven't solved a thing in that regard.

What we have said is, if he doesn't do that, a district judge could fill the vacancy. That is a great solution. Actually, it is not great. District judges don't want the authority. They haven't exercised it well in the past. They are not the best people; in fact, they have an inherent conflict of interest to be appointing prosecutors who are going to appear before them. In any event, the Senate has no ability to act on the nominee. It is not even a nominee, it is an appointment. The Attorney General can appoint or a Federal district judge can appoint. In neither case does the Senate get an opportunity to confirm or reject the nominee.

The underlying bill does not solve the problem that everybody is talking about. Only my amendment solves the problem which says, first, the ability of the U.S. Attorney General to fill these vacancies with an interim U.S. attorney is now gone. He cannot do that anymore. The very thing we don't like can't happen under my amendment.

Secondly, instead of having a Federal district judge appoint a prosecutor with no Senate confirmation, we require the President to make his nomination, that the Senate will act within 120 days of receiving that nomination, and if the President fails to do so, the Senate no longer has to act on any of his U.S. attorney nominations for the remainder of his Presidency.

Those who have argued that there is a problem have an obligation to explain how their proposed solution solves the problem. I issue this challenge to any of my Democratic colleagues who plan to vote for the underlying legislation, S. 214.

Please come to the floor within the next 40 minutes and explain to me what it is in these two pages that solves the problem. Can they point to where the Attorney General can no longer appoint a U.S. attorney? No, they cannot. It says right here that the Attorney General can appoint an interim U.S. attorney, and the Senate can't do anything about it.

Can they show how the Senate would be able to act on the appointment by a Federal district judge? No. It says that a Federal district judge may appoint the U.S. attorney. Not nominate, appoint. Again, the Senate has nothing to say about it.

I challenge my Democratic colleagues--they have done a great job of saying we have a problem--to show me how their bill solves the problem. Have enough humility to come to the Senate floor and say: We made the case for a change. We are willing to acknowledge that actually your solution is a better solution than ours, and we are willing to say we will support your solution.

That would solve the problem. For the future we would all be happy. We wouldn't have politics dictate the solution that in the end doesn't work to anybody's satisfaction.

I urge colleagues, vote yea on the Kyl amendment to solve the problem that has been presented.

Absolutely.

Mr. President, there are two alternatives in that situation. Either the President's Attorney General could appoint an interim U.S. attorney with no Senate confirmation or a district judge could appoint that U.S. attorney with no Senate confirmation.

Actually, there are two alternatives. Let me read them. I am reading from the bill. I urge my colleagues to read the bill. It really helps.

There are two options if the President does not submit a nomination. This is No. 2, if the President hasn't nominated someone, ``the expiration of 120 days after appointment by the Attorney General under this section.''

The first option is that the President could try to submit another nomination. But if he chose not to do so, his Attorney General could appoint the U.S. attorney. Or the third possibility is, if an appointment expires under this section, the district court for such district may appoint a U.S. attorney. So

there are two options if the President doesn't nominate another candidate. His Attorney General can appoint the U.S. attorney, with no Senate confirmation, or a Federal district judge can appoint the U.S. attorney with no Senate confirmation.

Mr. President, that is exactly correct. Let's go to the other side of the coin. The President's own Attorney General could appoint someone who very aggressively followed his policies, and the Senate would have nothing to say about it.

Mr. President, the first vote will be on the amendment which I have offered which solves the problem that has been described here, unlike the underlying bill which does not solve the problem.

The problem is that the U.S. Attorney General can appoint interim attorneys and the Senate doesn't have a chance to confirm them. My amendment repeals that section of the law; the underlying bill does not. So it is still possible in the future, under the underlying bill, for the Attorney General to appoint interim U.S. attorneys without Senate confirmation. If he doesn't do that, then a Federal district judge makes the appointment, again without the Senate having the ability to act on the nomination. Again, my amendment solves that problem by requiring the President to nominate a candidate for U.S. attorney and requiring the Senate to act on that nomination. Should the President not fulfill his responsibility, the requirements for the Senate to act are vitiated. So there is a powerful incentive for the President to nominate.

The underlying bill reinstates the old law. The Senator from California has said the old system, which is the basis for her legislation, has worked well for 20 years. It hasn't worked well. The Senate has no ability to act on a nominee when there is no nominee. Under the existing law, the district court judge appoints the U.S. attorney. We have no ability to say yes or no to that individual. So I would argue that, from the Senate's prerogative and point of view, it has not worked well.

Secondly, yesterday, I noted two situations, one in the district for West Virginia in 1987, where the system of having a Federal judge appoint the

U.S. attorney did not work well at all. It is a case that perhaps the Presiding Officer is aware of. Eventually, the Justice Department had to remove the investigative files from the U.S. Attorney's Office and had to direct the nominee to recuse herself from some criminal matters until a background check could be effectuated. The situation was not resolved until another U.S. attorney was approved by the Senate.

We had the odd situation 2 years ago in South Dakota where we ended up having two U.S. attorneys serving at the same time because of the appointment by a district judge. The point is, the old system did not work well. In any event, the Senate has no say in the matter when a district judge appoints the U.S. attorney.

Conclusion: We have all recognized a problem exists. The problem is a U.S. attorney can be appointed without the Senate ever having a say in it, either by the Attorney General, as an interim, or by a district judge. The underlying bill permits both of those practices to continue. My amendment precludes both of those practices. It eliminates the Attorney General's ability to appoint an interim U.S. attorney and it eliminates the district court's ability to do so. It puts the responsibility where it belongs, on the shoulders of the President and the Senate.

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

Mr. President, I ask unanimous consent that at the conclusion of my remarks a letter I wrote to all of my colleagues in the Senate, dated March 19, regarding interviewing U.S. attorneys be added to my statement as well.

Mr. President, there has been a lot of discussion over the course of the last couple of hours about the firing of seven U.S. attorneys and a lot of speculation about why that occurred. I suggest it is important to find out the facts and then we can quit speculating and we will know what those facts were.

I wish to change the subject a little bit to what we are going to do about it. Actually, the Judiciary Committee passed a bill which is on the floor and will be amended tomorrow, I hope, and then we will vote on that bill tomorrow. It relates to what was conceived to be at least part of the problem here. The problem was that in the PATRIOT Act, a provision of law relating to appointment of U.S. attorneys was amended to allow the Attorney General to put into office what is called an interim U.S. attorney who would never have to come before the Senate for confirmation. Early on, there was speculation that the reason these seven U.S. attorneys were asked to resign was so the administration could put someone else in their place without going through the regular confirmation process of a nominee by the President. Except for the U.S. attorney in Arkansas, however, there appears to be no evidence that was the case.

In the case of Arizona, for example, it is clear it was not the case. There was no one ready to be appointed as interim U.S. attorney. In fact, Senator McCain and I have recommended an individual to the President for his consideration to be nominated to fill the

vacancy that now exists. Nonetheless, there was concern this statute shouldn't remain on the books, that it shouldn't be that the Attorney General can appoint an interim U.S. attorney who never has to come to the Senate for confirmation.

I think there is a general consensus that that statute should be changed and that the President should nominate people and the Senate should have an opportunity to act on the nomination.

An interesting thing has occurred, however. The legislation which has been proposed doesn't achieve the objective. It doesn't even begin to achieve the objective. So I drafted an amendment which I will be offering tomorrow that actually achieves the objectives. It says: The President has to nominate to fill the vacancy and the Congress has to act on the nomination, and it provides a very strong incentive for the President to comply with the law because if he doesn't, then Congress's requirement to act on any of his U.S. attorney nominations for the entire remainder of his term is vitiated. So if he wants strong and quick action by Congress on his nominees, he has to do his part and actually nominate somebody within the 120 days required by my amendment.

Now, that achieves both objectives we are trying to achieve here: that the President will actually nominate and the Congress will have a chance to act on the nomination. The underlying bill, unfortunately, does not achieve that objective. It reverts to the old law which doesn't require the President to nominate, and if he doesn't, it has U.S. district court judges nominating U.S. attorneys, something they don't want to do and they haven't been very good at, and, in any event, confuses their article 3 responsibilities with the article 2 responsibilities of U.S. attorneys. It is not a good idea, and it doesn't solve the problem that people perceive existed.

My amendment also eliminates the current statute relating to interim nominees so the President could no longer appoint these interim nominees who would have to be confirmed by the Senate, or at least acted upon by the Senate. So I believe my amendment goes directly to the concern that our Democratic colleagues have had regarding this issue. I would hope politics wouldn't play a part in the consideration of my amendment. This issue generally has been so politicized-- everybody has chosen up teams. I would hope that conversation would not be confused with the practical solution to the problem everybody has agreed exists, and that Members on both sides, in a very clear-eyed way, could consider which of the solutions represents the best option of solving the problem.

My colleague Senator Sessions has a proposed solution which, in the event my amendment were not adopted, I would support as well, because it at least improves somewhat on the underlying bill. But the reality is we shouldn't have Federal district judges making these nominations, and if our goal is to have the President make the nomination and enable the Senate to act on the nomination, the only amendment that does that is my amendment.

I ask my colleagues on both sides of the aisle to remember we are not always going to have a Republican President and a Democratic Senate. We are going to have a Democratic President some day and a Democratic Senate or a Republican Senate or a Republican President and a Republican Senate. All the permutations will exist and politics should play no role in it. We should want the President to nominate to fill the vacancy and we should want the Congress to have a chance to act on that nomination. That is what my amendment provides.

The committee-passed bill, the number is S. 214, restores the interim U.S. attorney appointment statute that existed between 1986 and 2006. As I said, that system, which delegates to Federal judges the authority to appoint interim attorneys, has several flaws. First, as I said, S. 214 does not ensure the President will nominate a U.S. attorney. Whoever serves in a district should be someone who is nominated by the President, not a district judge. It is the President, not the district court, who is charged by the Constitution with ensuring that the laws are faithfully executed. It is the President's job to enforce the law. To do that effectively, he needs to have in place U.S. attorneys who are accountable to him. If he is not bringing important prosecutions or enforcing particular statutes, he and his superiors need to be held accountable. But if that U.S. attorney were appointed by a district judge, there is no one to complain to. Judges, after all, have lifetime tenure. It is only by ensuring that U.S. attorneys are appointed by the President that we can ensure there is ultimate accountability in the system.

This is, after all, the way in which the Constitution envisioned that accountability for enforcing the laws would be charged--by charging the President with the duty to enforce the law.

The second flaw in the underlying bill is that the Senate has no say in the selection of U.S. attorneys appointed by a district judge. One of the major complaints about the administration's handling of the interim U.S. attorney appointment authority is that it did not consult with home State Senators; that, in fact, some individuals sought to use the authority to avoid consulting with Senators.

It is right that the Senate take action in an effort to protect its prerogatives, but letting judges pick U.S. attorneys does not protect the Senate's rights. Senators have absolutely no say in the selection of a U.S. attorney who is picked by a judge. There is no confirmation of the judge's selection as there is when the President nominates someone. This system, which S. 214 puts back in place, is a solution that doesn't solve the problem that we have set out to address.

There is a third problem with this underlying bill. The judges don't want the authority. In the past, when district judges have had the authority to appoint interim U.S. attorneys, some have simply refused to do so. Incidentally, the statutory language is ``may,'' not ``shall.'' If they don't appoint judges, then the very concern that the Democratic Senators have had that an interim U.S. attorney is appointed and serves is exactly what happens. So judges don't want the authority, and there have been at least three such occasions during the current Bush administration when a district judge has refused to appoint an interim U.S. attorney and, in fact, they have had good reason. It is at least a potential conflict of interest for the district judge, who presides over criminal cases, to also select a U.S. attorney who prosecutes those cases. It is for this reason that some judges have refused to intervene in this area and select U.S. attorneys.

Yet with the committee-reported bill, we once again foist this authority on the judges. Why are we doing this--restoring power to the district judges that those judges don't want and have refused to use in the first place? Why are we forcing them to take actions that judges themselves, for good reason, see as a potential conflict of interest?

There is a fourth reason why this is not a good idea. Unfortunately, some district judges have not acquitted themselves very well when they have exercised the power to appoint U.S. attorneys. A Federal district judge may have the measure of the legal abilities of the lawyers who practice in his district, but he has no way to gauge their managerial skills, which is an important quality in a successful U.S. attorney. A district judge doesn't even have access to a candidate's personnel file and would not know of potentially disqualifying information or conflicts of interest in that file.

Allow me to describe two cases under the old system where the appointment of a U.S. attorney by a district judge led to a situation that can only be described as a fiasco:

In the Southern District of West Virginia, in 1987, the U.S. attorney for the District of West Virginia was confirmed to be a Federal judge. When the term of the interim U.S. attorney expired, the chief district judge appointed another individual as U.S. attorney. This individual was not a Justice Department employee and had not undergone an FBI background investigation. The court's appointee came into office and started asking about ongoing public integrity investigations, including investigations involving the mayor of Charleston and the State's Governor. Not only were this mayor

and Governor under investigation by the U.S. Attorney's Office at the time, both were later indicted and convicted of various Federal crimes.

The first assistant U.S. attorney, who knew that the district court's U.S. attorney had not undergone a background investigation, believed that these inquiries about pending investigations of local politicians were inappropriate and reported them to the Executive Office for United States Attorneys in Washington, DC. The Justice Department eventually had to remove the investigative files involving the Governor from that U.S. Attorney's Office for safekeeping. The Justice Department also had to direct the court's appointee to recuse herself from some criminal matters until a background check could be completed. This situation wasn't resolved until another U.S. attorney was confirmed by the Senate.

Mr. President, at the very time that some Democrats are suggesting that it just might be--there is no evidence, but it just might be that one or more of these U.S. attorneys was removed because they were hot on the trail of some Republican officeholder, they were involved in a political investigation or an investigation of a political person, and that was the reason they were removed--again, there is no evidence, but that is the suggestion--why would you want to substitute for that situation a statute that goes back to the way it used to be, which allowed the same thing to occur as in the case in West Virginia that I just cited? Why not change the situation so that the President must nominate, and the Senate explicitly has a right to act on that nominee by either confirming or rejecting the nominee?

That is the check and balance we need, rather than going back to the way it used to be, where the judge can appoint and we end up with problems like this involving investigations of political corruption.

Another case occurred in the District of South Dakota. In 2005, when the term of an interim U.S. attorney was about to expire, the chief district judge told the Justice Department he wanted to appoint an individual who didn't have any Federal prosecutorial experience, had not undergone a background check, and did not have the necessary security clearances. The Justice Department strenuously objected. Once the Justice Department believed the matter had been resolved, the Attorney General appointed another candidate. A Federal judge executed the oath of office for this appointee and copies of the Attorney General's order were sent to the district court.

Ten days later, the Justice Department received a fax indicating that the chief district judge had changed his mind and ``appointed'' the earlier, unacceptable candidate as U.S. attorney.

This created a situation where two different people claimed to be the U.S. attorney for the District of South Dakota. Defense lawyers representing criminal defendants in the district indicated that they would challenge ongoing investigations and cases on the basis that they could not know who was in charge. The chief judge then refused to negotiate a resolution to the situation. Eventually, in order to protect ongoing criminal cases, the President was forced to resolve the situation by firing the district judge's U.S. attorney. The matter was not completely resolved until another U.S. attorney was confirmed by the Senate the next year.

Don't we want to avoid this situation in the future? We are going to be asking for this kind of problem if we pass S. 214, the bill pending before us now. Far better it would be to adopt the amendment that I will offer that precludes this from occurring.

Let me point out another very serious problem that I don't think the authors of the legislation have even thought of or they clearly would have tried to fix it. S. 214 does not prevent the Attorney General from making multiple consecutive appointments of the same interim U.S. attorney. In other words, the very thing they are afraid of--that the President got rid of these people so the Attorney General could put his own person in office--is precisely what would be permitted under the bill pending before the Senate because it reinstates the exact language that existed before the statute was amended in 2006: the Attorney General could make consecutive 120-day appointments of interim U.S. attorneys.

Has this ever been done? There is at least one case where the Attorney General appointed a U.S. attorney to four consecutive 120-day interim terms. Well, that is a year and a half, by my reckoning. This incident occurred in the Eastern District of Oklahoma during the years 2000 and 2001. As a result, that district had an interim U.S. attorney who had been appointed by the Attorney General for over a year. Similarly, in Florida, in 2005, an interim U.S. attorney was appointed by the Attorney General. After the 120-day term ran out, the Attorney General appointed that individual to another interim term. After that term ran out, the Attorney General appointed him to a third interim term.

This practice is what the language of the 1986 law allowed. It is the same language that is in the bill that is before us now. It is obvious that much of the impetus for the present legislation is a desire to rein in the Attorney General's authority to appoint interim U.S. attorneys without Senate confirmation. Yet I submit that such power hasn't exactly been ``reined in,'' and the Senate's prerogatives are not protected, by a system that allows the Attorney General to make consecutive appointments of non-Senate-confirmed U.S. attorneys, which is precisely what the bill before us would allow. That system clearly falls short of ensuring that U.S. attorneys are subject to U.S. Senate confirmation, which is one of our two goals.

Finally, I note that S. 214's system of judge-made interim appointments is duplicative of the designation of acting U.S. attorneys under the Vacancies Act. We are effectively creating two different and redundant systems for appointing ``temporary'' U.S. attorneys. That makes no sense and creates obvious potential problems. For example, this system would make it possible for an individual to be consecutively designated as an acting U.S. attorney and serve in that post for 210 days and then be appointed as interim U.S. attorney and serve another 120 days. So he can be reappointed and reappointed again, if the Attorney General wanted to do so. This is nearly a whole year that someone could serve as U.S. attorney without ever being confirmed or acted upon by the Senate, without the nomination ever being sent to us.

Mr. President, we can all agree there is a problem. The solution, which was very quickly devised, is not a solution at all, as I have demonstrated. We can do better. There is nothing partisan about what I suggest. It would work equally for Republican and Democratic Presidents and Republican and Democratic Senates. To that end, I will offer an amendment on Tuesday that will achieve these goals of ensuring that U.S. attorneys are promptly nominated by the President and that the Senate has an opportunity to act on the nomination.

My amendment, again, requires that the President nominate a U.S. attorney candidate within 120 days of vacancy. It then requires that the Senate consider the nomination within 120 days after it is submitted. In order to encourage the President to abide by these time limits, the amendment provides that if the President fails to nominate an attorney candidate in any district within the time limit, then the 120-day limit on Senate consideration is vitiated for all U.S. attorney nominations for the remainder of the President's term in office. In effect, in order to enjoy the substantial benefits of prompt Senate consideration of his nominees, the President would be required to, himself, nominate promptly.

My amendment makes one other important change. It completely repeals the interim U.S. attorney statute, as I said, which is what people have gotten all concerned about in the first instance but seem to have forgotten. The interim authority is unnecessary in light of the Vacancies Act and has caused a host of problems. By repealing this authority, my amendment would effectively bar the President or a judge from appointing any long-term U.S. attorney without Senate confirmation. Any temporary gap in the office of U.S. attorney would be addressed by the Vacancies Act, which applies to all Senate-confirmed executive appointments and allows another employee or officer-- presumptively the first assistant--to carry out the function and duties of the office subject to various time limits and other requirements.

Mr. President, especially those who are upset about recent events should support a complete repeal of the interim authority. It is only a complete repeal that will ensure that U.S. attorneys are appointed by the President by and with the advice and consent of the Senate. It is only a complete repeal that will prevent consecutive appointments of U.S. attorneys by the Attorney General. It is only a complete repeal that will prevent the stacking of the interim and acting terms as U.S. attorney. Only a complete repeal ensures that Senators will always have a say in who serves for the long term as the U.S. attorney in their State.

The interim appointment authority has lately become a contentious and very politicized issue. It need not be. It is particularly in times such as these that the Senate must do what was designated by the Framers to do: cool the passions and look to the long term. I hope my colleagues will do this when I present my amendment tomorrow. I hope we will lay partisanship aside and that my amendment will be supported.

Exhibit 1

U.S. Senate

Washington, DC, March 19, 2007.

Re Interim U.S. Attorneys.

Dear Colleague: There is a consensus that the changes made

to the interim U.S. attorney statute, 28 U.S.C. Sec. 546, by

the Patriot Improvement and Reauthorization Act, Pub. L. 109-

177, were a mistake. It is my hope that we will not compound

that mistake with another--namely, involving Federal district

judges in the appointment of U.S. attorneys.

During Monday's debate and Tuesday's vote, I urge you to

consider that in the future both Democrats and Republicans

will control the Senate, and both a Democrat and a Republican

will serve as President. The solution that we adopt should be

one that we are ready to live with under all combinations of

these circumstances. It should be a solution that ensures

that the President timely nominates U.S. attorneys, and that

those U.S. attorneys are subject to confirmation by the

Senate.

S. 214, the committee-reported U.S. attorneys bill, does

not meet these goals. My proposed amendment does. S. 214

restores the interim U.S. attorney appointment statute that

existed between 1986 and 2006. That statute, which delegates

to Federal judges the authority to appoint interim U.S.

attorneys, has several flaws. First, it does not ensure that

the President will nominate a U.S. attorney. Second, the

Senate has no say in the selection of a U.S. attorney who is

appointed by a district judge.

Moreover, judges do not want this authority. Some have

simply refused to appoint interim U.S. attorneys, finding it

a potential conflict of interest for the district judge who

presides over criminal cases to also select the U.S. attorney

who would prosecute those cases. And finally, some district

judges have not acquitted themselves well when they have

exercised the power to appoint U.S. attorneys. A Federal

district judge may have the measure of the legal abilities of

the lawyers who practice in his district, but he is in no

position to gauge an individual's management skill--an

important quality in a successful U.S. attorney. A district

judge does not even have access to a candidate's personnel

file and would not know of disqualifying information in that

file or of potential conflicts of interest.

An additional problem, which may be of concern to those who

are eager to respond to recent events, is that the permissive

language of the pre-2006 statute--the same language that S.

214 restores--was understood to allow the Attorney General to

make consecutive 120-day appointments of interim U.S.

attorneys. In at least one case, the Attorney General

appointed a U.S. attorney to four consecutive 120-day

``interim'' terms. Such a system falls short of ensuring that

U.S. attorneys are subject to Senate confirmation. And

finally, S. 214's approach is duplicative of the designation

of Acting U.S. attorneys under the Vacancies Act, 5 U.S.C.

Sec. 3345 et seq., and potentially allows an individual to be

consecutively designated as an Acting U.S. attorney, and then

as an interim U.S. attorney--again avoiding Senate

confirmation for a substantial period of time.

I believe that we can do better. To that end, I will offer

an amendment on Tuesday that will achieve our goals of

ensuring that U.S. attorneys are promptly nominated by the

President and that the Senate has an opportunity to act on

those nominations. My amendment: (1) Would require the

President to nominate a U.S. attorney candidate within 120

days of a vacancy. It then would require the Senate to

consider the nomination within 120 days after it is

submitted. In order to encourage the President to abide by

these time limits, the amendment also would provide that if

the President fails to nominate a U.S. attorney candidate in

any district within the time limit, the l20-day limit on

Senate consideration is vitiated for all U.S. attorney

nominations for the remainder of that President's term in

office. In effect, in order to enjoy the substantial benefits

of prompt Senate consideration of his nominees, the President

would be required to nominate promptly.

Finally, my amendment: (2) Would completely repeal the

interim U.S. attorney statute, 28 U.S.C. Sec. 546. The

interim authority is unnecessary in light of the Vacancies

Act and has caused a host of problems. By repealing this

authority, my amendment would effectively bar the President

(or a judge) from appointing any long-term U.S. attorney

without Senate confirmation. Any temporary gap in the office

of U.S. attorney would be addressed by the Vacancies Act,

which applies to all Senate-confirmed executive appointments

and allows another employee or officer (presumptively the

First Assistant) to carry out the functions and duties of the

office subject to various time limits and other requirements.

The interim appointment authority has lately become a

contentious and very politicized issue. It need not be. It is

particularly in times like these that the Senate must do what

it was designed by the Framers to do: To cool the passions

and look to the long term. I hope that you will do so--and

that you will support my amendment.

Sincerely,

Jon Kyl.

Amendment No. 459

Mr. President, I call up my amendment which, I understand, is at the desk.

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

Mr. President, I ask unanimous consent that Seth Poldberg of Senator Grassley's office be granted floor privileges during today's session of the Senate.

Madam President, there is an old joke about the definition of retreat, which is a strategic withdrawal. I note that is the phrase used in the resolution, S.J. Res. 9, to describe the process of leaving Iraq. The language effectively is: ``The President shall commence the phased redeployment of United States forces from Iraq not later than 120 days,'' and then says:

. . . with the goal of redeploying by March 31, 2008, all the

United States combat forces from Iraq. . . .

Except for the limited purposes of protecting forces, training Iraqi forces, and conducting targeted counterterrorism operations.

That is a very bad idea. We shouldn't be playing politics with this war, and we shouldn't be trying to micromanage the war from Congress. But setting specific dates by which the commanders are to make certain decisions, including how troops are deployed, is clearly micromanaging the war effort.

The fact there have been 17 resolutions--I believe this is the 17th resolution--on the Democratic side of the Congress, and the fact that none of those other 16 were adopted I think demonstrates the confusion on the other side as to what exactly ought to be done and the differences of opinion by Members on the other side of the aisle.

Thank goodness we didn't adopt any of the other 16, and we shouldn't adopt this one either. This one is particularly pernicious. It actually begins the withdrawal. It sets a date, ``shall commence the phased redeployment . . . not later than 120 days.

Then it uses a goal of completing that withdrawal by March 31, 2008. Some have tried to hide behind the word ``goal.'' I think Senator Feingold said it right, however, on March 8 of this year when he said:

For the first time, it--

``It'' meaning the resolution--

has a timetable in place, as I called for in August of 2005.

It's not as early as I would like, but is a timetable not

only to begin to get the troops out but to get the troops out

except for very limited purposes.

It didn't always used to be this way. A lot of our Democratic colleagues understood that setting timetables and deadlines was absolutely the wrong thing to do.

The distinguished majority leader, for example, said:

But as far as setting a timeline, as we learned in the

Balkans, that's not a wise decision, because it only empowers

those who don't want us there, and it doesn't work well to do

that.

Another one of the supporters of the resolution said 2 days ago:

I don't believe it's smart to set a date for withdrawal. I

don't think you should ever telegraph your intentions to the

enemy so they can await you.

Another cosponsor of the resolution said 3 days ago:

I, for example, am not in support of circling a date on a

calendar and saying, ``No matter what, we're out on that

date.''

One of the most thoughtful people in the Senate on matters of foreign policy has spoken a lot on this issue, and I think what he said a couple of years ago makes a lot of sense. This is the distinguished chairman of the Foreign Relations Committee. He was talking about the options. He said:

. . . we call it quits and withdraw, I think that would be a

gigantic mistake for the reasons I stated earlier. Or we can

set a deadline for pulling out, which I fear will only

encourage our enemies to wait us out, equally a mistake. . .

. I mean, the idea of setting a timetable to leave generally

means that you have to set and train the process of leaving.

It is not an easy process. And I think once that is smelled

as the option, then I think you find it will degenerate

quickly into sectarian violence, every man for himself. And

the conclusion that will be achieved will be, I think,

Lebanon in 1985, and God knows where it goes from there.

Recently, the distinguished chairman said this, unfortunately:

We should withdraw our combat troops by early 2008, except

for a limited number necessary to keep training Iraqis and to

deny terrorists a sanctuary.

As I said, it used to be that most Senators understood that setting a timetable in a war, a date for withdrawal was a very bad idea, not just because it tried to micromanage the conduct of the war from the Congress but because it signaled to the enemy precisely what the enemy had to do, to wait us out and then prevail in the conflict.

That is precisely what this resolution does and is the key reason why every Senator should be voting against this resolution and why those who spoke against a timetable before should remember what they said and the wisdom of those words and follow that same advice today.

This is especially pernicious because at the very time this resolution is being adopted, there continues to be news from Iraq that suggests the new strategy, the Petraeus plan, is actually beginning to work. Nobody is claiming any victory. There are going to be bad days as well as good.

I ask unanimous consent at the close of my remarks to print in the Record an article from the Associated Press in my hometown newspaper: ``Baghdad's terror death counts are falling.''

Madam President, the article points out the fact that the death squad deaths are falling substantially, the militia activity is down substantially. While our commanders there are being cautious about declaring the operation a success, nonetheless, there are many different descriptions of events happening in Iraq that give us a lot of hope.

I was there a couple of weeks ago, and our commanders and Iraqis both were cautiously optimistic this would work.

The point is, at the very time the new plan is underway and it seems to at least show early signs of success, why would we want to declare it a failure and start the process of withdrawing at the very time these additional troops seem to be making a difference?

One of the chairmen of the Baker-Hamilton study commission, former Democratic Congressman Lee Hamilton, was testifying before the Congress about a month ago. He said we should give this plan a chance. We should give it a chance to succeed. That is exactly what we ought to do. We start by rejecting the resolution that is pending because it micromanages the war and sends a horrible signal.

We also try to support the troops by adopting as quickly as possible a supplemental appropriations bill that funds this effort without tying the strings of our commanders and without imposing so many other conditions that the President is constrained to veto it. We have to get that funding to our troops as soon as possible. That is the other message the commanders on the ground, both in Kuwait and Iraq, gave to me when we were there. They said: Please adopt the supplemental appropriations bill without strings.

I urge my colleagues to vote against the resolution when it comes up for a vote later this afternoon.

Exhibit 1

[From the Arizona Republic, Mar. 15, 2007]

Baghdad's Terror Death Counts are Falling

(By Robert H. Reid)

Baghdad.--Bomb deaths have gone down 30 percent in Baghdad

since the U.S.-led security crackdown began a month ago.

Execution-style slayings are down by nearly half.

The once frequent sound of weapons has been reduced to

episodic, and downtown shoppers have returned to outdoor

markets, which are favored targets of car bombers.

There are signs of progress in the campaign to restore

order in Iraq, starting with its capital city, according to a

Pentagon report released Wednesday.

But although many Iraqis are encouraged, they remain

skeptical how long the relative calm will last. Each bombing

renews fears the horror is returning. Shiite militias and

Sunni insurgents are still around, perhaps just lying low or

hiding outside the city until the operation is over.

U.S. military officials, burned before by overly optimistic

forecasts, have been cautious about declaring the operation a

success. Another reason it seems premature: Only two of the

five U.S. brigades earmarked for the mission are in the

streets, and the full complement of American reinforcements

is not due until late May.

The report even used for the first time the term ``civil

war'' to describe some of the violence. But it stressed that

the term does not capture Iraq's complex situation, and its

assessment was based on the final three months of 2006, which

it said was the most violent three-month period since the

U.S.-led invasion.

U.S. officials say the key to the security crackdown's

long-term success is the willingness of Iraq's sectarian and

ethnic political parties to strike a power- and money-sharing

deal. That remains elusive: A proposal for governing oil, the

country's main source of income, is bogged down in

parliamentary squabbling.

Nevertheless, there are encouraging signs.

Gone are the ``illegal checkpoints,'' where Shiite and

Sunni gunmen stopped cars and hauled away members of the

rival sect, often to a gruesome torture and death.

The rattle of automatic-weapons fire or the rumble of

distant roadside bombs comes less frequently. Traffic is

beginning to return to the city's once-vacant streets.

``People are very optimistic because they sense a

development. The level of sectarian violence in streets and

areas has decreased,'' said a 50-year-old Shiite, who gave

his name only as Abu Abbas, or ``Father of Abbas.'' ``The

activities of the militias have also decreased. The car bombs

and the suicide attacks are the only things left while other

kinds of violence have decreased.''

In the months before the security operation began Feb. 14,

police were finding dozens of bodies each day in the capital,

all victims of Sunni and Shiite death squads. Last December,

more than 200 bodies were found each week, with the figure

spiking above 300 in some weeks, according to police reports

compiled by the Associated Press.

Since the crackdown began, weekly totals have dropped to

about 80, which is hardly an acceptable figure but clearly a

sign that death squads are no longer as active as they were

in the final months of last year.

Bombings also have decreased in the city, presumably due to

U.S. and Iraqi success in finding weapons caches and to more

government checkpoints in the streets that make it tougher to

deliver the bombs.

Prime Minister Nouri al-Maliki, a Shiite, made a show of

confidence Tuesday by traveling out of Baghdad for meetings

with Sunni tribal leaders and government officials in Ramadi,

a stronghold for Sunni insurgents.

``I would caution everybody about patience, about

diligence,'' Maj. Gen. William Caldwell, a U.S. spokesman,

said Wednesday. ``This is going to take many months, not

weeks. But the indicators are all very positive right now.''

Sunni militants, meanwhile, are believed to have withdrawn

to surrounding areas such as Diyala province, where they have

safe haven. The U.S. command sent an extra 700 soldiers

Tuesday to protect the highways leading into the capital from

there.

If militants from both sects are indeed lying low, that

suggests they may have adopted a strategy of waiting until

the security operation is over, then re-emerging to fight

each other for control of the capital.

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

Mr. President, I ask unanimous consent that I be allowed to speak in morning business for about 15 minutes.

Mr. President, for weeks, I have been coming to the floor to discuss the signs of progress we are beginning to see as the military implements our new strategy in Iraq. Recent developments are encouraging. They include the following:

First of all, the Iraqi Cabinet approved a national oil compact, which is the beginning of a resolution of what to do with the revenues that are produced from the oil that is produced in Iraq. It is a vital step in ensuring a united Iraq, and Prime Minister Maliki called it a ``gift to all of the Iraqi people.'' This is expected to be approved by the Iraqi legislature this spring.

Next is the capture recently of Abu Omar al-Baghdadi, the leader of al-Qaida in Iraq, the successor to al-Zarqawi, in the western outskirts of Baghdad. This represents a continuing increase in the number of terrorist chiefs who have been killed or captured.

Just last week, the Iraqi neighbors meeting was held. It generated a lot of press because both U.S. and Iranian representatives were present. It involved all 16 nations involved in the conflict. It was the neighbors of Iraq, as well as countries such as Great Britain and the United States. It was the largest meeting of foreign countries in Iraq since the summit meeting of the Arab League members in March of 1990. There were working groups established to work on various problems all the countries had--for example, refugees from Iraq who have gone into Syria or Jordan. A special working group was created to try to deal with that issue.

This represents a step forward, all of which illustrates the fact that not only is the new strategy being implemented a military one but it involves diplomatic and economic and political factors as well.

It was interesting that the Prime Minister toured Baghdad to illustrate the security part of the new strategy that is beginning to work. He had been largely confined to the relatively safe Green Zone, as it is called, but on Sunday, he was able to go outside the wire to tour a power station, visit with police, and shake hands with ordinary Baghdad citizens. He attributed his newfound freedom of movement to the success of the Baghdad security plan, and he committed to redouble his efforts, saying: This operation will be accelerated at all levels in numbers and weaponry; we will not back down.

You have also seen successes in places such as Sadr City, where it is pretty clear that the Shiite militias have decided to stand down and not contest the Iraqi and American forces.

In fact, at the conclusion of my remarks, I will have printed in the Record two newspaper articles. One was written for the Washington Post on March 11, called ``The `Surge' is Succeeding,'' by Robert Kagan. While the leaders in Iraq are not yet willing to publicly say the surge is succeeding, clearly evidence of that is on the ground, and at least the media--journalists--are entitled to conclude from what is happening that it is succeeding.

I was in Iraq a couple of weeks ago and was briefed by General Odierno and General Petraeus, as well as others. They all were cautiously optimistic that things were looking better on the ground. They just wanted to caution that there would be good days and bad; that the enemy has a say in this and they will strike back, certainly, all they can. And if the administration were to claim too much in the way of success too early and there was some kind of event that resulted in a lot of violence, there might be a suggestion that the administration was trying to put too nice a gloss on it. So the administration is trying to downplay the successes. But the reality is that there is news of success.

I think that makes all the more distressing and puzzling the effort by a lot of our colleagues not only to downplay the potential for success there but to develop strategies to undercut that success with resolutions that would micromanage the war from the Senate and, indeed, bind the hands of our commanders and our military as they begin to implement this program.

It is hard for me to fathom the amount of time and energy that has been put into the development of these various resolutions--at last count, some 17 different resolutions--that would, in one way or another, criticize the President's plan or try to find some way to stop it from occurring.

What is further puzzling and distressing is the degree to which this appears to be resulting from political considerations. Another one of the pieces I am going to ask to print in the Record is an article from March 12--that is today's Roll Call magazine--in which leaders on the Democratic side are quoted as referring to the political aspects of this strategy to try to get resolutions adopted.

The article talks about the Democratic leader's ``abandoning efforts at crafting a bipartisan deal'' and ``instead look to directly tie Republicans to the unpopular conflict. . . .''

The articles goes on to talk about ``the decision to ratchet up their partisan rhetoric''--``their'' meaning Democratic partisan rhetoric--by a resolution that sets ``specific dates for a mass redeployment of troops in Iraq and creating new restrictions on the war effort,'' and, indeed, that is what the latest resolution of the majority leader would do.

But the article goes on to talk about this ``more aggressive push to tar vulnerable Republicans up for re-election in 2008.'' That is not what we should be all about in debating the war in Iraq and designing solutions to ensure that war can be resolved successfully. It should not be about trying to tar vulnerable Members of the opposition party to diminish their reelection prospects in the year 2008.

The chairman of the Democratic Campaign Committee, the distinguished senior Senator from New York, has, according to this Roll Call article, ``warned that Democrats would use the issue as a bludgeon on Republicans up for reelection next year,'' and they quote him as saying:

The heat on these Republican Senators that are up in '08 is

tremendous.

Adding:

. . . this is a campaign . . . we are going to keep at [it].

To me, that is an illustration of something very wrong with the Democratic Party's approach to this war. Reasonable people can differ about whether we should be there and how we should conduct the operations once there. But we ought to be able to agree that our responsibility is to provide the funding or to cut it off. The President's responsibility as Commander in Chief is to do his best to see that the mission is achieved. That is what we are sending the troops over there to do. That is what General Petraeus was sent there to do. He was confirmed unanimously by this body a month or so ago.

When I was in Iraq, General Petraeus told us: Please see to it that we have what we need to fulfill our mission. Pass the supplemental appropriations bill to fund our effort and don't tie our hands with micromanagement from the Senate.

This is the message from the person we sent over to do the job. It seems to me this would be the wrong time to pull the rug out from under him and pull the rug out from under the troops just as there are signs of success, as I discussed earlier.

It is interesting, too, that there seem to be so many different approaches to this effort to criticize the President and his plan. I mentioned that at last count there are some 17 different resolutions. Somebody called it the ``Goldilocks'' strategy, with the Democratic leader searching for a solution that is neither too hot nor too cold. The real question is: In the House of Representatives, are they going to lose people on the left or the right or did they get it just right, with sufficient numbers of projects in the supplemental appropriations bill to appeal to those who may not like the end result with respect to the Iraq part of the resolution?

Some have labeled it a ``slow bleed'' because it appears to be a solution that doesn't cut off all the funding for the troops at this moment but, rather, over time makes it impossible for us to succeed.

The resolution, as I understand it, says we have to begin withdrawing our troops by a specific date and complete the withdrawal by another specific date. In the past, there has been a fairly good bipartisan consensus for the proposition that is the worst of all worlds, that you don't want to set a timetable for withdrawal because it gives the enemy precisely what they need to calibrate how long they have to hang in there until you are gone and then they can move in and take over and fill the vacuum. So it is a bad proposition, even apart from the political motivation behind it.

It is worth, taking a look at some of the iterations.

We started with S. 2, a nonbinding resolution, that it wasn't in the national interest of the United States to proceed. That was criticized as being nonbinding.

Then we move on to S. Con. Res. 7 that expressed disagreement with the plan. That didn't have sufficient support, so that was replaced by S. 470, the Levin bill. It expressed disagreement with the strategy but in a form the President would be forced to veto.

Then we moved on to the Reid-Pelosi proposal, S. 574. Not surprisingly, this approach had no more support than the others, and so we then moved on to the Biden-Levin proposal. That bill never even saw the light of day. It wasn't even debated.

Now we are down to S. J. Res. 9, a nonbinding resolution encouraging the President to redeploy all, or almost all, of the troops by the end of 2008. This has been described as a goal, and yet the resolution itself provides that it is much more than that; that the troops would, in fact, have to begin being redeployed and be fully redeployed by the end of March of 2008. I don't think this resolution will pass either because, as I said, most people agree setting a timetable for withdrawal is absolutely the worst thing you want to do, even if you don't agree with the troops being there in the first place.

As I said earlier, the amount of time and effort consumed in trying to craft the perfect Iraq resolution is difficult to square with all the other important business we have to do. The majority

leader, the chairmen of the Armed Services and Foreign Relations Committees, and other important Members of this body have devoted hours and hours to making grammatical edits to this legislation, even though none of it is going to pass.

Frankly, it is a good illustration of why wars should not be micromanaged by Congress. We are not good at conducting wars. That is why we have a Commander in Chief, that is why we have a Joint Chiefs of Staff, that is why we have our military commanders, such as General Petraeus, in whom we have placed a great deal of confidence, who have the experience to conduct these kinds of operations.

I daresay, there are not many of us who have the experience of the distinguished Presiding Officer, and it is important for us not to be armchair quarterbacks when lives are on the line.

Iraq is perhaps the most critical issue facing our country at the moment, and my comments are not meant to suggest that Iraq deserves anything less than a full and fair debate on the floor. It is one thing, however, to have a debate and let each side make its position known and then vote on competing proposals. It is quite another to devote this kind of energy to attempts which appear to be purely political attempts to undercut the President and undercut the mission in Iraq.

I believe the President has chosen a course that has the potential for success. That is why I mentioned at the beginning of my remarks some of the events which have been reported in the media that demonstrate early success. I, frankly, urge my colleagues to turn their energies to find ways to amplify these successes rather than to undercut them.

It is interesting that Lee Hamilton, the chairman of the Baker- Hamilton commission, who has been cited many times by Members on both sides of the aisle, in testimony before the Congress has been insistent that now that the President has laid out a plan, that strategy should have a chance to succeed, that we should give it a chance to succeed.

By the way, even though the President at the time did not indicate what he would be doing specifically, since that report has come out, several of the recommendations have, in fact, been a part of what the administration strategy is following. For example, the strategy of meeting with people in the neighborhood is a followup on one of the Baker-Hamilton recommendations.

I agree with cochairman Lee Hamilton that we should give the strategy in Iraq a chance to succeed and not undercut it at the very moment it appears there are early signs of success with a resolution which, as I said, there had been a bipartisan consensus for that we shouldn't be setting a timetable for withdrawal since that simply plays into enemy hands.

The final document I will ask unanimous consent to be printed in the Record when I conclude is a piece from the L.A. Times, dated today, March 12. Headline: ``Do we really need a Gen. Pelosi?'' It refers, of course, to the distinguished Speaker of the House of Representatives, who is supporting the plan that has been put forth in the House of Representatives by the Democratic leadership there. To quote from this L.A. Times.com piece:

After weeks of internal strife, House Democrats have

brought forth their proposal for forcing President Bush to

withdraw U.S. troops from Iraq by 2008. The plan is an unruly

mess: Bad public policy, bad precedent and bad politics. If

the legislation passes, Bush says he'll veto it, as well he

should.

This comes from the Los Angeles Times, no particular friend of this administration. The Times goes on to say that this kind of micromanagement ``is the worst kind of congressional meddling in military strategy.''

They go on to say:

By interfering with the discretion of the commander in

chief and military leaders in order to fulfill domestic

political needs, Congress undermines whatever prospects

remain of a successful outcome.

Then they go on to criticize the Speaker and others for trying ``to micromanage the conflict . . . with arbitrary timetables and benchmarks.''

Concluding:

Congress should not hinder Bush's ability to seek the best

possible endgame to this very bad war.

So a paper that does not like the war or support the administration generally, nevertheless, recognizes it should not be micromanaged from the Congress; that if there are any possibilities for it to succeed, we should be following those possibilities.

To sum it up, I simply say this: There is a chance for this strategy to succeed. We should give it a chance to succeed. Early signs are positive. We should not try to micromanage the war from the Congress. Therefore, when these resolutions come before us, we should reject them and allow our military commanders the opportunity that we have asked them to engage in to bring a successful conclusion to this war.

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

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

Mr. President, I rise today in support of amendment No. 366, offered by my colleague, Senator Schumer. This important amendment would restore the export restrictions on highly enriched, HEU, bomb- grade uranium for use as a reactor fuel or as targets to produce medical isotopes, except on an interim basis to facilities that are actively pursuing conversion to low-enriched uranium LEU.

Let's look at the history behind this amendment. From 1992 until 2005, we had a law that worked. Under that law, we allowed the exportation of HEU for the production of medical isotopes as long as the recipient of that highly enriched uranium cooperated with the United States to get to the point where the production of these medical isotopes could be done with low-enriched uranium. Low-enriched uranium is not of sufficient grade to make bombs. This law provided the incentive to work with the United States to attain conversion to LEU. Most important, it furthered our antiproliferation goal of reducing the circulation of HEU outside the United States. It is important to note that from 1992 until 2005, licenses for the shipments of HEU were never denied and the medical isotopes needed for radiopharmaceuticals were never in short supply.

Then in 2005 this effective, 13-year-old law was gutted through an amendment to the Energy Policy Act and the export restrictions on HEU were eliminated. These restrictions were lifted over the objection of a majority of this body, which voted in favor of retaining existing law, 52 to 46, after a thorough debate. You may ask why an amendment to allow weapons-grade uranium to leave the United States without restriction would resurface in conference and end up enacted into law. I ask that same question. There are no good explanations. One thing is certain, though; we need to fix it.

The major producers of medical isotopes are all foreign companies operating outside the United States. Under the previous law, these companies were moving toward conversion to LEU, and many have developed the capability to produce medical isotopes from LEU. Australia and the Netherlands are two good examples. The other major producer of medical isotopes is in Canada. That Canadian company has resisted conversion to LEU and in 2005 that company had enough HEU-material stockpiled to build at least four bombs. Today, who knows how much it may have stockpiled. One thing we do know is, if this material is lost or stolen, the United States would be faced with a serious nuclear threat. We must rectify this mistake. I urge my colleagues to adopt this amendment.

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

Mr. President, yesterday afternoon, our colleague Senator Specter criticized the decision of the U.S. Court of Appeals for the District of Columbia in the Al Odah v. U.S. case. That decision upheld the recently enacted Military Commission Act's bar on lawsuits brought by enemy combatants held at Guantanamo Bay.

Senator Specter argued that the Guantanamo detainees have a constitutional right to bring these lawsuits, and he predicted that Al Odah will be overruled. He based his argument largely on the Supreme Court's 2004 decision in Rasul v. Bush. Senator Specter argued that Rasul's ruling that habeas extends to Guantanamo Bay was a constitutional ruling. Senator Specter based his argument on Rasul's discussion of the 18th century common law of habeas corpus. Senator Specter also argued that Justice Scalia's opinion in Rasul acknowledged that Rasul overruled Johnson v. Eisentrager, the landmark decision establishing that captured enemy combatants do not enjoy the privilege of litigation.

I will address each of Senator Specter's argument in turn. At the outset, however, I would like to note that last September, Senator Specter argued that a passage from the plurality opinion in the 2004 decision in Hamdi v. Rumsfeld established that all aliens held in the United States, regardless of combatant status, are constitutionally entitled to seek writs of habeas corpus. In response at that time, I argued that Hamdi did not effect such a radical result. I noted that the holding of Hamdi clearly only involved U.S. citizens; that the notion of extending habeas to aliens based on territorial distinctions was inconsistent with the logic of Hamdi; and that Senator Specter's reading of Hamdi was inconsistent with basic rules of construction that urge against reading groundbreaking new rules into obscure and ambiguous passages of opinions.

I am pleased to see that, today, Senator Specter has not renewed the argument that Hamdi extended habeas rights to noncitizen enemy soldiers. I will assume that he was persuaded by the force of the arguments that I made last September.

Today, allow me to try to persuade Senator Specter, and the rest of my colleagues, that the majority opinion in Rasul v. Bush does not require that the constitutional guarantee of habeas corpus be extended to alien enemy combatants who are being detained during wartime.

Section 7 of the Military Commissions Act, like its predecessor, the Detainee Treatment Act, is predicated on the continuing validity of Johnson v. Eisentrager's constitutional holding, on the unbroken common-law tradition of denying the privilege of litigation to captured alien enemy soldiers, and on the understanding that the holding in Rasul v. Bush was a statutory holding, not a constitutional one.

Neither Senator Specter, nor anyone else, has been able to cite a single case prior to Rasul v. Bush in which any English or American court has ever held that captured enemy soldiers who are not citizens are entitled to seek the writ of habeas corpus. Not one case can be cited that grants the writ to alien enemy soldiers. The absence of any such example over the centuries of the history of the writ of habeas corpus speaks volumes, and alone should be

conclusive of the constitutional question. Simply put, when the Constitution was adopted, the notion that the common law writ of habeas corpus could be employed by alien enemy soldiers was unheard of and it remained unheard until June of 2004, when the Supreme Court decided Rasul v. Bush.

Of course, with 5 votes, the Rasul Court could have grafted a habeas right for alien enemy combatants onto the Constitution. I believe that to do so would have been deeply irresponsible, and I believe that this is clearly not what the court did in Rasul.

In support of his interpretation of Rasul, Senator Specter argued that Justice Scalia's opinion in Rasul noted that the Rasul majority overruled Eisentrager, which had denied litigation rights to alien enemy combatants. In response, I would first note that Justice Scalia's opinion in Rasul was a dissenting opinion. As any lawyer knows, a dissenting opinion's characterization of a court's holding is hardly authoritative. An argument about what a case means that is based primarily on the dissent is inherently a weak argument.

Moreover, I do not think that Justice Scalia's dissenting opinion in Rasul is in any way inconsistent with the notion that Eisentrager's constitutional holding remains good law, and that the constitutional right of habeas corpus does not extend to alien enemy soldiers. Justice Scalia makes clear in his dissent that he is accusing the majority only of overruling Eisentrager's statutory holding, not its constitutional holding.

Justice Scalia begins at page 493 of his dissent by quoting the following passage from Eisentrager: ``Nothing in the text of the Constitution extends such a right''--a right of habeas corpus for war prisoners held overseas--``nor does anything in our statutes.'' It is Justice Scalia who italicized the absence of a statutory right when quoting this passage. He then went on to note:

Eisentrager's directly-on-point statutory holding makes it

exceedingly difficult for the Court to reach the result it

desires today. To do so neatly and cleanly, it must either

argue that our decision in Braden overruled Eisentrager, or

admit that it is overruling Eisentrager.

In this passage, Justice Scalia does accuse the Rasul majority of overruling Eisentrager, but he also makes clear that he only accuses it of overruling Eisentrager's statutory holding, not its constitutional holding.

But the argument that Rasul v. Bush's holding was only statutory, and did not extend constitutional rights to enemy combatants, is supported by more than just Justice Scalia's dissent. The majority opinion itself repeatedly and clearly indicates that the holding in that case is only statutory, not based on the Constitution. For example, on page 475 of the opinion, for example, the majority clearly states that ``[t]he question now before us is whether the habeas statute confers a right to judicial review'' of the detention of the detainees at Guantanamo Bay. Thus the court was careful to make clear that it was the habeas statute that it was interpreting, not the Constitution.

On the next page, when distinguishing Eisentrager, the Rasul majority opinion states that ``Eisentgrager made quite clear that [its analysis was] relevant only to the question of the prisoner's constitutional entitlement to habeas corpus. The court had far less to say on the question of the petitioner's statutory right to habeas corpus.''

Finally, at page 478, when explaining how it would distinguish the holding in Eisentrager, the majority stated: ``Because subsequent decisions of this Court have filled the statutory gap that had occasioned Eisentrager's resort to ``fundamentals,'' persons detained outside the territorial jurisdiction of any federal district court no longer need rely on the Constitution as the source of their right to federal habeas review.''

This statement could not be clearer that Rasul only addressed the petitioners' statutory right to habeas, not any constitutional right. The court stated that statutory changes--or rather, changes in the interpretation of statutes--made it unnecessary to reach any constitutional questions in Rasul.

Senator Specter's other main argument for his interpretation of Rasul is that the majority opinion's discussion of 18th century common law is a constitutionally binding interpretation of the scope of the writ. My response is that may be so, but it is not relevant to the constitutionality of the Military Commissions Act. The discussion in Rasul that Senator Specter cites is about how far the writ applies overseas. It is not about whether the writ applies to alien enemy soldiers.

Rasul's discussion of the common law of habeas corpus appears in Part IV of the majority decision--after the court had already decided that the statutory right extended to the detainees at Guantanamo. This part of Rasul is devoted to responding to the argument that the presumption against extraterritorial application of legislation requires that the habeas statute be construed to not extend to Guantanamo Bay. Justice Stevens stated that ``[w]hatever traction the presumption against extraterritoriality might have in other contexts, it certainly has no application to the operation of the habeas statute with respect to persons detained within `the territorial jurisdiction' of the United States.'' Justice Stevens then asserted that at common law the writ applied to aliens held overseas, and he went on to describe common law cases that he characterized as extending the writ to aliens held at places outside of the ``sovereign territory of the realm.''

Whatever the merits of Justice Stevens's historical analysis, it is used in Rasul only to rebut the presumption against extraterritoriality. It is used to argue that the writ presumptively does extend overseas. But this part of Rasul does not address the central question raised by the Military Commissions Act: whether alien enemy soldiers, wherever they are held, are constitutionally entitled to seek the writ of habeas corpus. Regardless of whether the writ applies to other aliens held at U.S. facilities overseas, the writ does not--it has never been extended--to alien enemy combatants detained during wartime, whether those soldiers are held inside or outside of the United States.

None of the common law decisions that Justice Stevens discusses in part IV of his opinion granted habeas relief to an alien enemy war prisoner. That is because, as I noted earlier, in the history of habeas corpus, prior to Rasul, alien enemy war prisoners have never been found to be entitled to the writ. Rasul's historical analysis can be cited for the proposition that the writ extends extraterritorially, even to aliens. But its discussion does not address the question that we are concerned with here today: whether the writ extends to alien enemy soldiers.

Indeed, at one point in its discussion, the Rasul opinion does tend to confirm that the common-law habeas right does not extend to enemy soldiers. In its exploration of the scope ``historical core'' of the common-law writ, Rasul quotes a passage from the Supreme Court's prior decision in Shaughnessy v. United States, which noted that executive imprisonment has long been considered oppressive and lawless, and that no man should be detained except under ``the law of the land.'' As Rasul notes, this commentary on the historical scope of the writ came from Justice Jackson.

Just 3 years before he wrote the passage in Shaugnessy that is quoted in Rasul, here is something else that Justice Jackson said about the scope of the writ. Here is what Justice Jackson said in Johnson v. Eisentrager about the notion that the writ extends to alien enemy war prisoners: ``No decision of this Court supports such a view. None of the learned commentators on our Constitution has ever hinted at it. The practice of every modern government is opposed to it.''

So there you have it, from the same source that the Rasul majority quotes to establish the historical scope of the writ. The writ upholds and enforces the law of the land, but the law of the land does not extend litigation privileges to aliens with whom we are at war.

Let me also cite another, more recent source in support of my argument. Yesterday, Senator Specter quoted an editorial from the New York Times that, unsurprisingly, was hostile to the Military Commissions Act and the Administration. In response to Senator Specter's liberal columnist, allow me cite my own liberal columnist Benjamin Wittes. Mr. Wittes writes op-eds for the Washington Post, is a scholar

at the Brookings Institution, and generally has unimpeachable liberal credentials. I doubt that he and I agree on very many things. Yet this is what he had to say, in a recent column in The New Republic, about the D.C. Circuit's decision in Al Odah upholding the Military Commissions Act:

The [Al Odah] court held both that Congress--not the

executive branch--stripped the courts of jurisdiction to hear

lawsuits from detainees at Guantanamo, and that it had the

constitutional power to do so. As a legal matter, the

decision is correct. And, if and when the Supreme Court

reverses it, as it may do, the decision won't be any less

correct. The reversal will signify only that a majority of

justices no longer wishes to honor the precedents that still

bind the lower courts.

As the case heads towards the Supremes, you'll no doubt

hear a lot about suspension of the Great Writ of habeas

corpus--the ancient device by which courts evaluate the

legality of detentions. And you'll also hear a lot about

Guantanamo as a legal ``black hole.'' It's all a lot of rot,

really, albeit rot a majority of the justices might well

adopt.

Until the advent of the war on terrorism, nobody seriously

believed that the federal courts would entertain challenges

by aliens who had never set foot in this country to overseas

military detentions--or, at least, nobody thought so who had

read the Supreme Court's emphatic pronouncement on the

subject. ``We are cited to no instance where a court, in this

or any other country where the writ is known, has issued it

on behalf of an alien enemy who, at no relevant time and in

no stage of his captivity, has been within its territorial

jurisdiction,'' the Court wrote in 1950. ``Nothing in the

text of the Constitution extends such a right, nor does

anything in our statutes.''

A final passage from Mr. Wittes Commentary reads as follows:

Notwithstanding the passionate dissent in the D.C. Circuit

case, the notion that [the Military Commissions Act] somehow

suspends the writ--a step the Constitution forbids except in

cases of rebellion or invasion--is not credible. As a legal

matter, it merely restores a status quo that had been

relatively uncontroversial for the five decades preceding the

September 11 attacks--that federal courts don't supervise the

overseas detentions of prisoners of war or unlawful

combatants. The demand that they do so now is not one the

Constitution makes.

I would also like to address a point that Senator Sununu made on the floor yesterday. Senator Sununu argued that, because detention of the Guantanamo prisoners may be indefinite, these prisoners should be given a right to challenge their detention.

In response, I would like to simply describe the protections that the CSRT process provides to Guantanamo detainees and discuss why it would be highly problematic to substitute that process with habeas review.

In the CSRT system, a detainee is provided with a personal representative who is assigned to help him prepare his case before the tribunal. CSRT hearings also include a hearing officer who is required to search government files for ``evidence to suggest that the detainee should not be designated as an enemy combatant.'' Prior to the actual hearing, the CSRT officers must provide the detainee with a summary of the evidence to be used against him. CSRTs are then subject to administrative review, and the detainee has an appeal of right to the U.S. Court of Appeals for the District of Columbia, which is charged with evaluating whether the tribunal complied with the CSRT rules, and whether those rules and procedures are constitutional.

All of the procedures described here, incidentally, are above and beyond what lawful prisoners of war are entitled to under the Geneva Conventions in an Article 5 hearing. Those hearings do not assign anyone to help a detainee, they do not require the government to search its files for exculpatory evidence, they do not require that a summary of the incriminating evidence be provided to the detainee, and they are not subject to any judicial review whatsoever.

Indeed, the CSRTs not only provide more process than is required under the Geneva Conventions; the CSRTs require more process than the Supreme Court has suggested is required for the United States to detain even a U.S. citizen as an enemy combatant. In the governing plurality opinion in the 2004 Hamdi decision, the Supreme Court suggested that even a U.S. citizen could be detained as a war prisoner if his detention were reviewed by a ``properly constituted military tribunal.'' The Supreme Court expressly cited as an example of such a tribunal the Article 5 hearings that are conducted under the Geneva Conventions in cases where there is doubt about a detainee's status. The CSRTs are modeled on and closely track these Geneva Convention Article 5 hearings. And, as I just described, in several respects the CSRT process provides even greater protections than an Article 5 hearing provides.

The Military Commissions Act, of course, does not apply at all to United States citizens. Out of deference to the force of the legal argument made by Justice Scalia in Hamdi v. Rumsfeld, both the DTA and the MCA were drafted to only bar aliens from seeking habeas relief, not United States citizens. And, again, the CSRT hearings that alien enemy combatants do receive provide even more process than the Hamdi plurality suggested is owed to an American citizen.

Nevertheless, the detainees and their lawyers are unsatisfied with the CSRT process. They want to give Al Qaeda detainees the right to see classified evidence related to their detention, and they want to allow the detainee to call his own witnesses.

In a recent column in the National Journal, Stuart Taylor, Jr. cites a strong example of why it would be a very bad idea to share classified information with suspected Al Qaeda detainees. Mr Taylor writes:

Consider the list of almost 200 un-indicted co-

conspirators, including the then-obscure Osama bin Laden,

that prosecutors in the 1995 trial of 11 subsequently

convicted Islamist terrorists were legally required to send

to defense counsel. ``That list was in downtown Khartoum

within 10 days,'' U.S. District Judge Michael B. Mukasey of

Manhattan, who tried the case, recalled in a recent panel

discussion. ``And he [bin Laden] was aware within 10 days * *

* that the government was on his trail.''

Mr. Taylor goes on to cite another example where the release of sensitive information to a suspected terrorist in the course of legal proceedings endangered national security:

In another judge's case, [Judge] Mukasey recalled, ``there

was a piece of innocuous testimony about the delivery of a

battery for a cell phone;'' this tipped off terrorists to

government surveillance' and as a result [their]

communication network shut down within days and intelligence

was lost to the government forever, intelligence that might

have prevented who knows what.

Mr. President, it is incidents like this that we must keep in mind when presented with demands that suspected al-Qaida or Taliban members be allowed to pursue habeas litigation. In civilian litigation, a criminal defendant has a presumptive right to see classified evidence used against him. Under CIPA, the Government must summarize or redact the evidence, but the summary or redaction must still provide an adequate substitute for the raw evidence. If the substitute is not deemed adequate, the Government must either show the evidence to the detainee or it cannot use the evidence.

In the context of Guantanamo, where detention hearings rely heavily, if not exclusively, on classified evidence, applying these habeas litigation rules would mean that we would have to either share classified information with al-Qaida detainees or we would have to let them go. Neither of these is an acceptable option. Even the fiercest critics of Guantanamo must accept that the bulk of the detainees held there are connected to al-Qaida or other terrorist groups. We cannot simply seal off these detainees from all contact with the world and assume that we will hold them forever. We must assume that some will be released and that they will be allowed some communication with those outside Guantanamo and, under these circumstances, we simply cannot hand over classified evidence to Guantanamo detainees.

As happened during the embassy bombers' trials, we must assume that classified evidence provided to the detainees will go straight back to the rest of al-Qaida.

I should also emphasize that denying an al-Qaida detainee access to classified information does not mean that such evidence will not be subject to any adversary review in the CSRT and DTA process. In the pending Bismullah case, the Government has proposed a procedural order under which a detainee counsel who has obtained a security clearance would be able to review the classified evidence in the CSRT hearing. If this proposed order is adopted, as I assume it will be in some form, the detainee's lawyer, though not the detainee himself, will have access

to the classified information used in the CSRT.

So when you hear evidence or arguments that the DTA review is unfair or that it is inadequate, keep in mind the actual stakes at issue. The detainee's cleared lawyer will get access to the classified information, but the detainee will not.

Under these circumstances, should the Congress force the military to provide classified information to both the lawyer and the suspected terrorist?

Another complaint about CSRTs is that the Guantanamo detainees are not allowed to call their own witnesses at the hearings. Just who would those witnesses be the detainees would call? Whose testimony would be most relevant to the detainee's enemy combatant status? The only answer to this question would be the soldier who originally captured the detainee.

Here is Mr. Stuart Taylor's commentary on the proposal that Guantanamo detainees be allowed to compel witnesses at their CSRT hearings:

Should a Marine sergeant be pulled out of combat and flown

around the world to testify at a detention hearing about

when, where, how, and why he had captured the particular

detainee? What if the Northern Alliance or some other ally

made the capture? And should the military be ordered to

deliver high-level al Qaeda prisoners to be cross-examined by

other detainees and their lawyers?

I would suggest that simply to ask this question is to answer it.

Here is more that Mr. Taylor had to say about such proposals:

Many libertarians and human rights activists, on the other

hand, would settle for nothing less than the full panoply of

protections afforded to ordinary criminal defendants. They

should be careful what they wish for. As McCarthy points out:

Enemy combatants are often in a position to be killed or

captured. Capturing them is the more merciful option, and

making it more difficult or costly would almost certainly

effect an increase in the number killed.

The CSRT hearings and the DTA review strike the right balance. They give detainees enough process to ensure that the persons held are enemy combatants and that they pose no threat to the United States. But this system does not provide a process that would undermine the war with al- Qaida or that is inconsistent with the realities of war.

Mr. President, I will stipulate to that.

Mr. President, first of all, I appreciate both the courtesy of the Senator from Pennsylvania and his important legal analysis and would answer the question in this way.

I think that most observers believe that the Rasul decision is not a decision on the Constitution but on the statute; that it interprets rights based upon the statute, which Congress can change; that it is not a holding that provides a constitutional right to alien enemy combatants to litigate via habeas corpus.

Secondly, the Great Writ that has been quoted by the Senator from Pennsylvania has always been understood in decisions of the court to be defined as it existed at the time of the Constitution. That is why there is always a great interest in looking back to decisions in the common law of England prior to the adoption of our Constitution, the Bill of Rights.

I think, as I said in my statement, that there has never been a case that suggests that at the time the language about habeas corpus was put into our Constitution any court, in either the United States or England, at the time, had ever held that the writ applied to alien enemy combatants. So it has never been held that the writ applies to aliens. It has been held that it applies to U.S. citizens, and it has certainly never been held that it applies to alien enemy combatants.

Mr. President, I would say to my colleague that nothing in the grant of the writ in the Constitution, as far as I know, would deny the right of Congress to expand it to include others. Certainly, one could not take away from the writ as it was understood when it was put into the Constitution. For example, we could not deny to U.S. citizens the writ of habeas corpus because of the constitutional provision, but it would not speak to the question of whether Congress could extend the authority of the writ to aliens.

The case here, however, is that the decision in question was based on a statute which Congress had adopted, and it does not go to the question of whether the writ itself ever applied to aliens. In fact, it never applied to alien enemy combatants.

Mr. President, I would have to go back and read it very closely, but my recollection is that the court found the statute rather uninformative and rather unclear, and that was part of the basis for the court reading it in a way that went beyond what I thought it provided. Nonetheless, one can understand that when the court views a statute that doesn't provide clear limitations, its inclination may well be to lean forward in its interpretation.

Mr. President, the answer is no, I was not. I regret I didn't hear the argument of the Senator yesterday.

Mr. President, let me just try to respond very briefly to the question of the Senator. Again, I regret I didn't hear the full argument that was made yesterday.

I am happy to yield.

Mr. President, I will respond very briefly by saying, first of all, I fully associate myself--

--with the comments of my colleague from South Carolina yesterday.

To the first point, if I could just make a brief comment, after the Rasul decision, after the Rasul case was decided--

No coaching.

After the Rasul case was decided, I am sure, Senator Specter, you would agree it was important for the Department of Justice to advise people of the rights that were provided as a result of that decision. That is my understanding of what they did. They had a policy of saying: The Court has made this decision. They found a statutory right of habeas corpus, and you have the right to do the following things under that statute. But that would not be a pronouncement of law by the Department of Defense. Certainly it hasn't been relied upon, to my knowledge, by any court in deciding what the scope of the writ is. So, as to your first point, I hardly think it is good evidence of the constitutional application of the writ to detainees that after the Rasul decision, the Department of Justice properly advised people as to their statutory rights based upon that decision.

As to the second question--just one quick quotation. This was provided to me, at my request, by Senator Graham. In the Hamdi case, in the O'Connor opinion, she specifically answers the question you posed, Senator Specter, on page 27 of the opinion, where she says:

Likewise, the Constitution would not be offended by a

presumption in favor of the Government's evidence so long as

that presumption remained a rebuttable one and a fair

opportunity for rebuttal were provided.

Mr. President, I answer my friend and colleague from Pennsylvania that I disagree with a lot of jury verdicts and with a lot of court opinions. But once a matter is concluded, as officers of the court, we are supposed to respect the decision of the court. I do. I don't know the facts of every case that has been litigated, but they have done so under a procedure that has been upheld as constitutional. Just as I was willing to stipulate that Justice Scalia probably has a better handle on Supreme Court interpretation than either--well, I didn't stipulate that he has a better interpretation than Senator Specter, but I acknowledged in my case that he would--I think you have to say that if a court of appeals has made such a decision, then it is a bit presumptuous for us, with great confidence, to say that they necessarily were wrong.

So I am not going to second guess a decision like that. I would rather simply point to the most recent decision which upheld the procedures in the Al-Odah case--that case will be decided by the U.S. Supreme Court. My colleague and I have a different view, I suspect, as to how that case will come out. We will just have to wait and see. If it turns out that I am correct, that the court of appeals' decision is correct, then this debate which we have had here probably won't matter. But I do believe that until that decision is made, it would be unwise for us to again change the law, thus throwing into even greater confusion what has up to now been a pretty confused state of affairs.

Mr. President, this is going to sound too much like the mutual admiration society, but before Senator Specter said what he said, I rose because I wanted, in return, to pay him a compliment.

As chairman of the Judiciary Committee prior to the last election, he performed admirable service to the Senate. I think it is not well known that that kind of a job requires a lot of different skills to be employed to deal with a lot of cantankerous Senators who have their own ideas about how things should be done. Senator Specter always conducted that committee in a way which allowed us to get business done, and respected the rights of Senators. Far too often, debate, or what passes for debate in this Chamber, is speeches given by Senators on different points of view, like ships passing in the night with no joining of the issues, and no serious discussion of complex legal issues, when that should be required.

Certainly the Presiding Officer would be well qualified to judge what I am saying. But I always appreciated the opportunity, even when we were in disagreement, to discuss and to debate with the Senator from Pennsylvania, because he is a serious scholar who takes these matters seriously. He may not always come up with legal theory with which I agree, but it is always interesting to debate him. At the end of

the day, I would like to think this kind of debate does add to a record that the Court or other observers might actually find informative and helpful in their decisions.

Again, while we disagree with each other on this matter, I think it is apparent that we do so respectfully and with regard for each other's opinions.

I want to say there is no greater expert in our body on military law than the Senator from South Carolina. I have always appreciated his wise advice and counsel on these matters as well.

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

Mr. President, I want to talk about a couple of the amendments that we have to the so-called 9/11 bill that is pending--an amendment which I hope can be adopted, one of which I talked about yesterday, which deals with the support for terrorists.

Believe it or not, we don't have adequate criminal penalties for people who support rewarding terrorists for their actions or their families or those who support them. So one of the things we want to do is to ensure that we have a statute that can be enforced that says, if you are aiding the family or associates of a terrorist with the intent to encourage terrorist acts, that will be a crime prosecutable in the United States.

I talked yesterday about an example that illustrates the need for this statute. In August of 2001, a Palestinian suicide bomber attacked the Sbarro pizza parlor in Jerusalem, and 15 people were killed. One of them was an American citizen, Shoshana Greenbaum, who was a schoolteacher, and she was pregnant. She was killed. Right after the bombing took place, the family of the suicide bomber was told to go to a particular Arab bank, and the bomber's family began receiving money from that bank. Eventually, a $6,000 lump sum payment was made.

According to press accounts, this is not uncommon. In fact, it is frequently the way suicide bombers have been funded through this particular Arab bank. Others are funded in other ways. There are plenty of news accounts of Saudi charities, the Palestinian Authority, and even Saddam Hussein was known to have rewarded suicide bombers for their acts. There is a BBC report that Saddam Hussein paid a total of $35 million to terrorist families during their time. Obviously, we would like to discourage that.

It is at least possible that if we can criminalize this activity that has a relationship to Americans, we would be able to make a difference, at least in some instances, in terms of whether a person would actually decide to commit a suicide bombing, based upon the fact that that person's family was going to be recompensed.

This amendment would make it a Federal crime, with extraterritorial jurisdiction in cases linked to U.S. interests, to pay the families of suicide bombers and terrorists with the intent to facilitate a terrorist act.

I hope this amendment can be adopted and that it will survive a conference committee. I see no reason that we could not have bipartisan support for it. The other thing that this amendment does is deal with the real workhorse of our law enforcement with respect to going after terrorists, the so-

called material support statutes. It increases the maximum penalties for various material support statutes. I emphasize it increases the maximum, not the minimum, because there are certain situations in which sometimes you want to charge the minimum or plead down to the minimum. We don't want to affect that; we want to increase the maximum in certain instances.

The material support statutes have been the Justice Department's workhorse in the war against terror, counting for a majority of the prosecutions that the Department has brought. It has been very effective, also, in starving terrorist groups of resources, which is one of the critical ways to disrupt the cells, we believe.

The amendment increases the penalty in the following ways: Giving material support for a designated terrorist organization would be a maximum of 25 years, up from 15. Material support in the commission of a particular terrorist act is increased from a maximum number of 15 to a maximum of 40 years. That can obviously be a very severe act against U.S. interests. The maximum penalty for receiving military-type training from a foreign terrorist organization would be increased from 10 to 15 years. The amendment also adds attempts and conspiracies to the substantive offense of receiving military-type training and denies Federal benefits to persons convicted of terrorist offenses.

All of these are designed to add to the ability of our prosecutors to go after people who are actually the ones who are enabling the terrorists to perform their heinous acts.

Finally, the amendment expands existing proscriptions on the murder or assault of U.S. nationals overseas for terrorist purposes, so that the law punishes attempts and conspiracies to commit murder equally to the substantive offense. The amendment adds a new offense of kidnapping a U.S. national for terrorist purposes, regardless of whether a ransom is demanded. There are some limits in existing law that were put in the act before the new techniques and methodologies of terrorists in today's world began to be implemented; for example, requiring a ransom. We know today that some of these terrorist kidnappings are not for the purpose of getting ransom, they are for the purpose of terrorizing. If that is the case, then this statute would be usable by our law enforcement authorities.

Finally, the amendment adds sexual assault to the types of injury that are punishable under the existing offense of assaults that result in serious bodily injury.

Once again, I hope this will be considered an appropriate addition to the 9/11 legislation to make it easier for us to deny the funding to terrorist organizations and to deny funding to people who would be engaged in suicide attacks.

The other amendment is an amendment to a provision of the bill that was added by Senator Feingold relating to data mining, which requires every Federal agency to submit reports to Congress on any search of a database that its employees perform in order, and I am quoting now, ``to discover or locate a predictive pattern or anomaly indicative of terrorist or criminal activity.'' Among other things, the report is required to include a thorough description of the data-mining technology that is being used or will be used.

Obviously, that probably is going to be getting into very classified information, and there are two things we want to ensure are changed in this provision. For one thing, the language in the bill does not include language that is included in other sections. It does not prevent disclosure of existing patents, trade secrets, proprietary business processes or intelligence sources and methods.

I suspect that is an oversight. We need to include that because, in the past, when Congress has required the Executive to make reports on sensitive technologies to Congress, it has been careful to prevent the exposure of this type of information about patents and trade secrets, and so on. I hope we can include that in the legislation, and my staff has been talking to Senator Feingold's staff to see if they would be willing to do so.

The other aspect is trying to protect the information that is classified. Originally, there was a concern that we were too broad with our proscription in trying to prevent classified information from being released to the public. So what we did was to modify the amendment to simply require that in the case of disclosure by Members of Congress or staff, this would be impermissible for classified information. If we are going to ask for reports of classified information, clearly, we should be willing to enforce the proscription on the release of that information. I am hoping we would be willing to do that as well.

That is the second amendment. I hope my colleagues will be willing to support both amendments. I think they will add to the benefits of this legislation. With respect to at least one of these amendments, it is germane postcloture, but I am hoping we can get them both resolved before cloture is invoked on the bill.

Mr. President, I yield the floor.

Madam President, I ask unanimous consent that the pending amendment be temporarily laid aside for the purpose of resubmittal of a technical correction to an existing amendment and laying down a second amendment.

First, I ask unanimous consent that amendment No. 317 be modified, and I send the modification to the desk. The minority has been given a copy.

I send a second amendment to the desk.

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

Madam President, I rise today to address an amendment that I have filed to the 9/11 recommendations bill, amendment no. 317. This amendment would prohibit rewarding the families of suicide bombers for such attacks, and stiffen penalties for other terrorist crimes.

The first part of the amendment would create a new offense of aiding the family or associates of a terrorist with the intent to encourage terrorist acts. This provision is targeted at those individuals who give money to the families of suicide bombers after such bombings. The amendment would make it a Federal offense to do so if the act can be connected to the United States, and if die defendant acted with the intent to facilitate, reward, or encourage acts of international terrorism.

Let me offer an example of why this amendment is necessary. In August 2001, a Palestinian suicide bomber attacked a Sbarro pizza parlor in Jerusalem. He killed 15 people. Among those killed was an American citizen, Shoshana Greenbaum, who was a schoolteacher and who was pregnant at the time.

Shortly after this bombing took place, the family of the suicide bomber was told to go to the Arab Bank. The bomber's family began receiving monthly payments through an account at that bank, and later received a lump sum payment of $6,000.

According to accounts in the press, this is not the only time that the Arab Bank has funneled money to the families of suicide bombers. One news account describes a branch of the bank in the Palestinian territories whose walls are covered with posters eulogizing suicide bombers.

According to other news accounts, suicide bombers in the Palestinian territories are recruited with promises that their families will be taken care of financially after the attack. Saudi charities, the Palestinian authority, and even Saddam Hussein have rewarded suicide bombers' families for their acts. According to the BBC, Saddam Hussein paid a total of $35 million to terrorists' families during his time.

Obviously, Saddam Hussein's actions are no longer a concern, but we should all be deeply concerned about other wealthy individuals and financial institutions who continue to pay out these rewards. It is undoubtedly the case that in some instances these payments make the difference in whether an individual will commit a suicide bombing.

My amendment would make it a Federal crime, with extraterritorial jurisdiction in cases that can be linked to U.S. interests, to pay the families of suicide bombers and other terrorists with the intent to facilitate terrorist acts.

My amendment also makes several other needed improvements to our antiterrorism laws.

The amendment increases the maximum penalties for existing material support offenses. The material-support statutes have been the Justice Department's workhorse in the war against terrorists, accounting for a majority of prosecutions. These statutes are also very effective at starving terrorist groups of resources. My amendment increases the penalty for giving material support to a designated foreign terrorist organization from a maximum of 15 years to a maximum of 25 years. The penalty for providing material support to the commission of a particular terrorist act is increased from a maximum of 15 years to a maximum of 40 years. And the maximum penalty for receiving military- type training from a foreign terrorist organization is increased from 10 years to 15 years. The amendment also adds attempts and conspiracies to the substantive offense of receiving military-type training, and denies Federal benefits to persons convicted of terrorist offenses.

Finally, my amendment expands existing proscriptions on the murder or assault of U.S. nationals overseas for terrorist purposes, so that the law punishes attempts and conspiracies to commit murder equally to the substantive offense. The amendment adds a new offense of kidnapping a U.S. national for terrorist purposes, regardless of whether a ransom is demanded. And the amendment adds sexual assault to the definition of the types of injury that are punishable under the existing offense of assault resulting in serious bodily injury.

I ask unanimous consent that a number of news articles be printed in the Record.

Mr. President, first I have a modification of my amendment No. 357 I would like to send to the desk. That amendment has already been offered.

Mr. President, at this point I wish to briefly address another amendment, amendment No. 317, which is already pending. This is an amendment which would prohibit rewarding families of suicide bombers for such attacks and stiffen penalties for other terrorist crimes. This is one we can hopefully adopt on a bipartisan basis. It would create the new offense of aiding the family or associates of a terrorist with the intent to encourage terrorist acts. It is targeted at those individuals who give money to the families of suicide bombers after such bombings. The amendment would make it a Federal offense to do so if the act can be connected to the United States and if the defendant acted with the intent to facilitate, reward, or encourage international acts of terrorism.

Let me offer an example of why this amendment is necessary. In August of 2001, a Palestinian suicide bomber attacked a Sbarro pizza parlor in Jerusalem. Among those killed was an American citizen, Shoshana Greenbaum, who was a schoolteacher and who was pregnant at the time. Shortly after this bombing took place, the family of the suicide bomber was told to go to the Arab Bank. The bomber's family began receiving monthly payments through an account at that bank and later received a lump payment of $6,000.

According to press accounts, this is not the only time Arab Bank has funneled money to the families of suicide bombers. One news account describes a branch of the bank in the Palestinian territories whose walls are covered with posters eulogizing suicide bombers.

According to other news accounts, these suicide bombers in the Palestinian territories are recruited with the promises that their families will be taken care of financially after the attack. Saudi charities, the Palestinian Authority, and even Saddam Hussein have rewarded suicide bombers' families for their acts. According to one account, Saddam Hussein paid $35 million to terrorists' families during his time. Obviously, his actions are no longer of concern, but we should all be deeply concerned about other wealthy individuals and financial institutions that continue to pay out these rewards. It is undoubtedly the case that in some instances, these payments make the difference in whether an individual will commit a suicide bombing.

My amendment will make it a Federal crime, with extraterritorial jurisdiction in cases that can be linked to U.S. interests, to pay the families of suicide bombers and other terrorists with the intent to facilitate terrorist acts. My amendment also makes other improvements to the antiterrorism laws, primarily by increasing the maximum penalties for various aspects of the material support offenses, which already exist in law.

I hope, as I said, my colleagues will view this as an amendment which we can adopt on a bipartisan basis. It is an important amendment to ensure that another avenue of terrorism can be shut off. I ask for my colleagues' affirmative consideration of this amendment No. 317, and I thank the Senator from Oklahoma for his courtesies extended to me.

Mr. President, today I am pleased to join with Senator McCain introducing the Walnut Canyon Study Act of 2007. I cosponsored similar legislation in the last Congress. That legislation had a favorable hearing in the Senate Energy and Natural Resources Committee. Unfortunately, we were unable to enact it before the Congress ended.

The bill is simple. It directs the Secretary of Agriculture and the Secretary of the Interior, utilizing a third-party consultant, to conduct jointly a study of approximately 31,000 acres surrounding Walnut Canyon National Monument. The purpose of this study is to help the land managers ascertain the best long-term management strategy for these surrounding lands in order to protect the natural, cultural, and recreational values. I want to emphasize that adding these acres to the monument is not the end goal of this study.

As stated, the study area consists of approximately 31,000 acres. Approximately 25,000 acres are currently managed by the Forest Service through the Land Resource Management Plan for the Coconino National Forest. The plan was amended in early 2003 with local input to close the area to motorized access and remove the land encircling the monument from consideration for sale or exchange. The plan, as amended, is under revision. The remaining acres are comprised of State trust land managed by the State Lands Department and the Walnut Canyon National Monument itself, which is managed by the National Park Service. A small number of acres, about 200, are private land. That private land is already subject to the Coconino County and the Flagstaff City Council-approved Flagstaff-area Regional Land Use and Transportation Plan, RLUTP, which restricts development within the study area.

This legislation is the product of extensive public input that included State and local officials, Federal agencies, and local citizens who use the land surrounding the monument. This public participation highlighted the core of the debate: how can we best protect the natural and cultural resources in the area while continuing the multiple-use management in a way that has stability and permanence. I hope that this independent study will help answer that important question. I urge my colleagues to approve the bill at the earliest possible date.

Mr. President, today I am pleased to join with Senator McCain introducing the Walnut Canyon Study Act of 2007. I cosponsored similar legislation in the last Congress. That legislation had a favorable hearing in the Senate Energy and Natural Resources Committee. Unfortunately, we were unable to enact it before the Congress ended.

The bill is simple. It directs the Secretary of Agriculture and the Secretary of the Interior, utilizing a third-party consultant, to conduct jointly a study of approximately 31,000 acres surrounding Walnut Canyon National Monument. The purpose of this study is to help the land managers ascertain the best long-term management strategy for these surrounding lands in order to protect the natural, cultural, and recreational values. I want to emphasize that adding these acres to the monument is not the end goal of this study.

As stated, the study area consists of approximately 31,000 acres. Approximately 25,000 acres are currently managed by the Forest Service through the Land Resource Management Plan for the Coconino National Forest. The plan was amended in early 2003 with local input to close the area to motorized access and remove the land encircling the monument from consideration for sale or exchange. The plan, as amended, is under revision. The remaining acres are comprised of State trust land managed by the State Lands Department and the Walnut Canyon National Monument itself, which is managed by the National Park Service. A small number of acres, about 200, are private land. That private land is already subject to the Coconino County and the Flagstaff City Council-approved Flagstaff-area Regional Land Use and Transportation Plan, RLUTP, which restricts development within the study area.

This legislation is the product of extensive public input that included State and local officials, Federal agencies, and local citizens who use the land surrounding the monument. This public participation highlighted the core of the debate: how can we best protect the natural and cultural resources in the area while continuing the multiple-use management in a way that has stability and permanence. I hope that this independent study will help answer that important question. I urge my colleagues to approve the bill at the earliest possible date.

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

Madam President, a colleague of mine asked a little earlier if I would give a brief report of a trip to Iraq, from which I just returned, and I thought I would take this time to do that. Several of my colleagues, both from the House of Representatives and the Senate, Democrat and Republican, were able to make this trip, and I want to report primarily on what we found when we went to Iraq.

I will start by saying we were in Israel the same day Secretary Rice met with Prime Minister Ehud Olmert and Palestinian President Mahmoud Abbas, and so we had an opportunity to speak with a lot of leaders in Israel as well about the status of the negotiations that had been thought to proceed there, but with Hamas now likely being a part of the Palestinian Government they are likely going to come to a halt. This is most unfortunate.

Obviously, neither Israel nor the United States can have direct dealings with a government which is dominated by a faction that refuses to recognize Israel's right to exist or renounce terrorism or agree to previous Palestinian agreements. This will complicate the process of reaching a permanent accord that the people in the Palestinian areas particularly want to have and the people of Israel also want to have in order to bring violence to a close against them.

So, unfortunately, the news out of Israel is pretty much the same as it has been year after year after year after year: Israel simply does not have a partner for peace at this time. Obviously, Secretary of State Rice is continuing to pursue the situation as best she can to try to help the Israelis achieve that situation.

With regard to the Iraq situation, I took away three primary points from our visit, and I want to discuss them briefly. The first is that after having talked to our commanders on the ground, General Petraeus and General Odierno, and a variety of other general officers as well as troops of other rank, and Iraqi leaders, there is a sense of cautious optimism about the new plan that has been announced and, in fact, is already being implemented. Our troops have begun to arrive, Iraqi troops arriving in greater numbers than before, primarily in the city of Baghdad, and a new military strategy and a political, economic, and diplomatic strategy has begun to play out.

Early signs are encouraging, though everyone cautioned that there will be signs of progress, because they think it is a plan that can succeed, but there will also be bad days.

Nobody should declare victory simply because things seem to be going well for a while. An illustration of this is for about 3 days prior to our arrival there had been no major incidences of violence in the city of Baghdad, yet they were not willing to applaud that too loudly. Good thing, because as we were leaving the country, a couple of car bombs exploded. Clearly, it will be a matter of progress that is not necessarily obvious and certainly will take a while to achieve.

Nonetheless, progress is possible this time because things are now different. In fact, the Deputy Prime Minister of Iraq told us that in his visits with people on the streets of Baghdad he was seeing something new, and he said it was an attitude that this time things are different; that there is an opportunity here for success, for a plan to succeed, where it didn't exist before. It is not simply because of greater American presence, it is also because the Iraqis are beginning to do things differently than they had done in the past.

Whereas some people call this a troop surge, I think it is important to note there are many other factors involved in addition to the addition of Iraqi and American troops. For example, the Iraqis are now going to be much more involved in maintaining control of an area after it has been secured. Sometimes in the past the Iraqi or American troops would take an area, would clear it of terrorists or militias, only to have those people infiltrate back when we left. Clearly, an Iraqi presence must be maintained in order for stability to be preserved, and that is what we are now beginning to see.

The Iraqi Shiite death squads and militia activity have gone way down. Again, this is, we believe, partially because of some things the Iraqi Government has done, rounding up about 600 of the Shiite troublemakers and working with the people in places such as Sadr City to persuade them it is better to not resist control by the Iraqi Army than it would be to fight. These are positive signs, but they are certainly not an end of the problems.

There are little things that are being done, for example, to prevent car bombs from going into marketplaces and blowing up a lot of people. They are beginning now to create what are in effect pedestrian malls such as we have in the United States, where vehicles are not permitted. It might still be possible for a single suicide bomber to go into a market and cause destruction but certainly not as much as a car bomb.

The point is, from a military tactical standpoint, the rules of engagement, the activities of the Iraqis, as well as what the United States is doing, all are working together to consolidate the gains that have been made there and to preserve them.

There is also a diplomatic, economic, and political aspect. The newly announced legislation to distribute the oil revenues of the nation to the people of the country is a very important political step that will give the people of Iraq more confidence in their Government. This was mentioned by our Ambassador Khalilzad when we were there. So from the military standpoint there are some signs this is already beginning to work, and I certainly hope our colleagues here in the Congress will do their best to allow this plan to work.

That brings me to the second point. Our commanders, both in Kuwait and Iraq, were very clear that it was important the Congress pass the supplemental appropriations bill to provide

the necessary equipment and reinforcements and not to tie down the tactics of the people on the ground. They are very concerned that we will somehow put limits on the kind of equipment that goes into theater or the number of troops or where the troops go or how they are deployed. Clearly, Congress should not be trying to micromanage a war, and I hope my colleagues who have discussed that in some preliminary way will see the detriment to such an action and will not offer resolutions that would change the way these commanders are able to do their job. This is something specifically that General Petraeus asked of us.

The third and final point is the Iranian influence in Iraq cannot be denied. It is true, I cannot read Farsi, the language of Iran. On the other hand, when General Odierno holds up an item, one of those explosive devices, and says, in Farsi this says ``made in Iran,'' I can't verify that, but I believe General Odierno. He pointed to batch and serial numbers on a variety of other weaponry and said, this can all be traced back to Iran.

We are clearly in a situation where we must make it crystal clear to the Iranian leaders this will not be tolerated. We have a right to protect our troops in Iraq and their interference will be intolerable. We have to find a way to get the Iranians to back off of that.

Those were three of the key impressions we took from our trip to Iraq, and I think it boils down to this: Some of our colleagues like to point to the Baker-Hamilton report and say that is what we should be doing instead of what we are doing. Remember what Lee Hamilton said in testimony before the Senate not too long ago. He said, the President's announced strategy should be given a chance to succeed. He specifically said, give it a chance to succeed.

I think there was some discussion of elements of the study commission's recommendations, such as a temporary troop surge, which is not inconsistent with what we are now doing. That is what I think we should do, give this plan a chance to succeed. Our troops in theater, our commanders, and the Iraqi leaders all believe they can see early signs of success in this program, even though it has just begun, and they are cautiously optimistic that it can succeed. I think it would be unconscionable for the Congress, seeing the beginnings of success here, to then act in any way that would pull the rug out from under our troops and make it impossible for them to achieve their mission.

I deliberately did not raise the question of the debate back here in Washington with the troops I met, but they raised it with me. They can see what is going on. They watch television. They are very well aware of what is being debated here. They are proud of what they are accomplishing. Their morale is high. Yet I submit to my colleagues that were we to pass legislation that would undercut their ability to perform their mission as they see it, clearly that situation could change, and this bothers our troops. It certainly, I think, would have the effect of causing our enemies to ask whether we have the will to see this through. As General Petraeus said, this is all about a test of will. Secretary Gates, I believe, and General Petraeus said it as well--in this war, it is a test of wills, and the United States has to make it clear we have the will to see it through.

From our perspective as legislators, we can take the example of the young men and women whom we put in harm's way to achieve a message. The example I take from them is they have the will. They understand what is at stake. They are proud of what they are doing, and they want us to help them achieve the mission. I think that is the least we can do under these circumstances. I hope my colleagues, as we debate in the ensuing days, will keep in mind what these folks in Iraq who are on the ground looking at this every day have to say about the situation and that we won't do anything to undercut them but that we will do everything in our power to support their mission.