Floor Statements

I would like to say a few words about the now-completed National Defense Authorization Act for fiscal year 2006, and in particular about section 1405 of that act, which expels lawsuits brought by enemy combatants from United States courts. I see that my colleague, the senior Senator from South Carolina, is also on the floor.

I would like to begin by commenting on the need for this legislation. This provision originally was added to the bill in an amendment that was offered by Senator Graham and of which I was a cosponsor, as well as Senator Chambliss.

Keeping war-on-terror detainees out of the court system is a prerequisite for conducting effective and productive interrogation, and interrogation has proved to be an important source of critical intelligence that has saved American lives.

In Rasul v. Bush, the U.S. Supreme Court interpreted section 2241 of title 28 to authorize enemy combatants held outside of the United States to file habeas-corpus petitions challenging their status in federal courts. Such a process is both without precedent and is utterly impractical.

Giving detainees access to federal judicial proceedings threatens to seriously undermine vital U.S. intelligence-gathering activities. Under the new Rasul-imposed system, shortly after al-Qaida and Taliban detainees arrive at Guantanamo Bay, they are informed that they have the right to challenge their detention in Federal court and the right to see a lawyer. Detainees overwhelmingly have exercised both rights. The lawyers inevitably tell detainees not to talk to interrogators. Also, mere notice of the availability of these proceedings gives detainees hope that they can win release through adversary litigation-- rather than by cooperating with their captors. Effective interrogation requires the detainee to develop a relationship of trust and dependency with his interrogator. The system imposed last year as a result of Rasul--access to adversary litigation and a lawyer--completely undermines these preconditions for successful interrogation.

Navy VADM Lowell Jacoby expounded on the preconditions for effective interrogation in a declaration attached to the United States' brief in the Padilla litigation in the Southern District of New York. Vice Admiral Jacoby at the time was the Director of the Defense Intelligence Agency. He noted in the Declaration that:

DIA's approach to interrogation is largely dependent upon

creating an atmosphere of dependency and trust between the

subject and the interrogator. Developing the kind of

relationship of trust and dependency necessary for effective

interrogations is a process that can take a significant

amount of time. There are numerous examples of situations

where interrogators have been unable to obtain valuable

intelligence from a subject until months, or, even years,

after the interrogation process began.

Anything that threatens the perceived dependency and trust

between the subject and interrogator directly threatens the

value of interrogation as an intelligence gathering tool.

Even seemingly minor interruptions can have profound

psychological impacts on the delicate subject-interrogator

relationship. Any insertion of counsel into the subject-

interrogator relationship, for example--even if only for a

limited duration or for a specific purpose--can undo months

of work and may permanently shut down the interrogation

process.

Specifically with regard to Jose Padilla, Vice Admiral Jacoby also noted in his Declaration that:

Providing [Padilla] access to counsel now would create

expectations by Padilla that his ultimate release may be

obtained through an adversarial civil litigation process.

This would break--probably irreparably--the sense of

dependency and trust that the interrogators are attempting to

create.

The system of litigation that Rasul has wrought is unacceptable.

I am glad that we have been able to work together on this issue. I would add that interrogation of these detainees is important. In his Declaration to the Southern District of New York, DIA Director Jacoby described how interrogation has proven to be a critical intelligence tool--indeed, our most important intelligence tool--in past conflicts and in the current war on terror. Interrogation was our most valuable source of information in World War II and the gulf war, and has played a key role in stopping numerous terrorist attacks in the present conflict. Vice Admiral Jacoby stated in that declaration:

Interrogations are vital in all combat operations,

regardless of the intensity of the conflict. Interrogation

permits the collection of information from sources with

direct knowledge of, among other things, plans, locations,

and persons seeking to do harm to the United States and its

citizens. When done effectively, interrogation provides

information that likely could not be gained from any other

source.

The Department of the Army's Field Manual governing

Intelligence Interrogation, FM 34-52, dated 28 September

1992, provides several examples of the importance of

interrogations in gathering intelligence. The Manual cites,

for example, the United States General Board on Intelligence

survey of nearly 80 intelligence units after World War II.

Based upon those surveys, the Board estimated that 43 percent

of all intelligence produced in the European theater of

operations was from HUMINT, and 84 percent of the HUMINT was

from interrogation. The majority of those surveyed agreed

that interrogation was the most valuable of all collection

operations.

The Army Field Manual also notes that during OPERATION

DESERT STORM, DoD interrogators collected information that,

among other things, helped to: develop a plan to breach Iraqi

defensive belts; confirm Iraqi supply-line interdiction by

coalition air strikes; identify diminishing Iraqi troop

morale; and identify a United States Prisoner of War captured

during the battle of Kafji.

Vice Admiral Jacoby also noted that interrogations of enemy combatants captured in the War on Terror have played a vital role in preventing numerous terrorist attacks. Again, quoting from his declaration in the Padilla litigation, Jacoby noted that interrogations of combatants such as those held at Guantanamo Bay have:

. . . provided vital information to the President, military

commanders, and others involved in the war on Terrorism. It

is estimated that more than 100 additional attacks on the

United States and its interests have been thwarted since 11

September 2001 by the effective intelligence gathering

efforts of the Intelligence Community and others.

In fact, Padilla's capture and detention were the direct

result of such effective intelligence gathering efforts. The

information leading to Padilla's capture came from a variety

of sources over time, including the interrogation of other

detainees. Knowledge and disruption of Al Qaida's plot to

detonate a `dirty bomb' or arrange for other attacks within

the United States may not have occurred absent the

interrogation techniques described above.

There are other examples of the importance of intelligence obtained from interrogation. In a recent new release, the Defense Department described valuable information that was obtained from interrogation of Mohamed al Kahtani, an enemy combatant being held at Guantanamo Bay. The Pentagon release noted that interrogation of Kahtani has yielded information that:

Clarified Jose Padilla's and Richard Reid's relationship

with al-Qaida and their activities in Afghanistan; provided

infiltration routes and methods used by al-Qaida to cross

borders undetected; explained how Osama Bin Laden evaded

capture by U.S. forces, as well as provided important

information on his health; and provided detailed information

about 30 of Osama Bin Laden's bodyguards who are also held at

Guantanamo.

The Pentagon's news release concluded: ``the result of those interrogations [at Guantanamo Bay] has undoubtedly produced information that has saved the lives of U.S. and coalition forces in the field.''

Let me cite another example: a June 27, 2004 Washington Post story notes that on November 11, 2001, Pakistani forces captured Ibn al- Shaykh al-Libi, a Libyan national who ran the Khaldan paramilitary camp in Afghanistan. In January 2002, al-Libi was handed over to U.S. forces and interrogated. According the Post, interrogation of al-Libi:

. . . provided the CIA with intelligence about an alleged

plot to blow up the U.S. Embassy in Yemen with a truck bomb

and pointed officials in the direction of Abu Zubaida, a top

al Qaeda leader know to have been involved in the September

11 plot. In March 2002, Abu Zubaida was captured. . . .

[Interrogation of Zubaida] led to the apprehension of other

al Qaeda members, including Ramzi Binalshibh, also in

Pakistan. The capture of Binalshibh and other al Qaeda

leaders--Omar al-Faruq in Indonesia, Rahim al-Nashiri in

Kuwait, and Muhammad al Darbi in Yemen--were all partly the

result of information gained during interrogations, according

to U.S. intelligence and national security officials.

The bottom line is that keeping detainees out of court makes effective interrogation possible, and interrogation has proved to be an invaluable source of intelligence, allowing the United States to capture important terrorists, prevent future terrorist attacks, and save the lives of American soldiers in the field.

I should also say a few words about some of the attacks that have been made against our amendment. For example, some critics have suggested that our amendment is inconsistent with the McCain amendment--that it prevents detainees from suing to enforce the McCain amendment. The response to this criticism is relatively straightforward: our amendment does not take anything away because the McCain amendment does not create a private cause of action in the first place. That amendment directly regulates military officers and is enforced through the usual mechanisms of military discipline.

To be clear, neither the CSRT nor the ARB process is designed to entertain grievance about the conditions of confinement. Is that your understanding as well?

No one really argued that the McCain amendments do create a private cause of action, except that some groups have suggested that the Graham/Kyl amendment is somehow inconsistent with the McCain amendments, the implication being that the Graham amendment wiped out the forum for bringing some cause of action that otherwise was created. Obviously, if the McCain amendment did create a private right of action, our amendment would bar the courts from entertaining that action. But the fact alone that the same Congress that adopted the McCain amendment also adopted the Graham/Kyl amendment tends to confirm, I would think, that the McCain amendments never were intended to create a private right of action in the first place.

As a matter of fact, the Supreme Court recently has tightened the standards for spontaneously recognizing such actions in cases where Congress is silent on the matter--I believe it was in the recent case of Alexander against Sandoval. The McCain amendments do

not state that they create a private cause of action. They regulate the conduct our troops rather than creating rights. And we have alternative means of their enforcement--as my colleague mentioned, through the system of military discipline--and thus we do not need a private cause of action to be implemented. I would be pretty surprised if, under those circumstances, anyone were to argue that the McCain amendment created a private right of action. So the senior Senator from South Carolina is correct, the Graham-Levin-Kyl amendment does not take away any cause of action created elsewhere in this bill, because the bill does not create any rights of action. Some members have been arguing that the McCain amendment will establish a standard that perhaps could be employed in another cause of action. That is, of course, true. But if such a cause of action is to exist, Congress will have to create it in the future. No cause of action currently available could serve as a vehicle for enforcing the McCain amendment in a private lawsuit, and I think that all the backers of that amendment consistently agree that the McCain amendments themselves did not create a private right of action. Again, it would be strange to construe this Act as intending such a private action when by the same hand this Congress would take away any forum for asserting such action.

Right. It may not be quite right to characterize this bill's provisions as transferring jurisdiction. Rather, they extinguish one type of action--all of the actions now in the courts--and create in their place a very limited judicial review of certain military administrative decisions.

The DC Circuit will have to give the petitioner leave to amend his claim, I assume?

We agree on that point. The one thing that critics have said about this bill that is correct is that it is a jurisdiction stripping bill. It strips every court of jurisdiction to hear claims from detainees held in Guantanamo Bay. The courts' rule of construction for these types of statutes is that legislation ousting the courts of jurisdiction is applied to pending cases. It has to. We're not just changing the law governing the action. We are eliminating the forum in which that action can be heard. And there is no exception anywhere in this bill for keeping intact part of that forum to hear the case. The case simply has nowhere to be heard.

I have just been handed a memorandum on this subject. The governing cases on this question are the Landraf case, as well as Hallowell v. Commons, 239 U.S. at 506, and Sherman v. Grinnell, 123 U.S. at 679. As the Landraf court noted, these statutes ``speak to the power of the court rather than the rights or obligations of the parties.'' These cases articulate the rule that will govern the detainee habeas actions and other lawsuits that currently are in the courts: legislation removing jurisdiction applies to pending cases and removes those cases from the courts.

Yes. The Constitution gives Congress the power to make ``exceptions'' and ``regulations'' to the Supreme Court's jurisdiction--or at least, to its appellate jurisdiction. It was Marbury v. Madison that held that Congress could not regulate original jurisdiction, but the court since then has made clear that even habeas actions filed directly in the Supreme Court are regarded as falling within a subspecies of the Supreme Court's appellate jurisdiction. This would be an interesting exam question for a law school class.

The Congress's authority to use this power was affirmed by the Supreme Court in the case of Ex Parte McCardle. That case involved, I believe, an even sharper use of this authority than this bill does--I believe that there the Supreme Court had even heard argument in that case before Congress stripped the court's jurisdiction over it. The Supreme Court upheld the statute and dismissed Colonel McCardle's case for want of jurisdiction.

So long as the Constitution still is good law. I am not aware that the clause in Article III allowing Congress to make exceptions and regulations to Supreme Court appellate jurisdiction has been repealed.

I suppose that some might argue that stripping the Supreme Court of jurisdiction over a pending case is unconstitutional if it is driven by some impure motive. But I can't imagine that the court would take away an authority clearly granted to Congress by the Constitution, regardless of what motive one might attribute to us. I am a member of this body, and would have great difficulty describing some definitive motive or intent to every law that we enact. I don't know how the Supreme Court or any other court could accurately discern such a motive. The laws that we enact have meanings that can be discerned through ordinary rules of construction. I think the rule of law is much more secure when the meaning of legislation is governed by those universally accessible rules of construction rather than through some attempt to psychoanalyze Congress's motive. And in any event, as I recall, this amendment was filed before the Supreme Court even granted review in the Hamdan case. That makes it a little

hard to argue that the amendment was motivated by a desire to strip the court of its jurisdiction in that case. I don't think that the Constitution gives Hamdan a greater right to have his case go forward than it did to Colonel McCardle.

Yes, in my opinion, the court should dismiss Hamdan for want of jurisdiction. That is what they did in Ex Parte McCardle. I assume that we may see an unhappy dissent from the court's order from one or two of the Justices--there may be some members of the court who refuse to accept McCardle and article III. But I think that a majority of the court would do the right thing--to send Hamdan back to the military commission, and then allow him to appeal pursuant to section 1405 of this bill.

The court also may well request a round of briefing on the effect of the effect on the Hamdan case. I suppose that a lawyer in the SG's office can look forward to rereading Ex Parte McCardle and the debates on the case in Hart & Wechsler's. But again, I don't think that this will change the result.

As for legislative history, I think it usually is regarded as an element of the canons of construction. It gives some indication of what Congress at least understood what it was doing--the context in which a law was enacted. Although, I understand that Justice Scalia does not read legislative history. I suppose that for his sake, we will have to strive to be exceptionally clear in the laws that we write.

Where to even begin? The U.S. has been accused before in its history of imperialistic behavior, but I think that this is the first time ever that a portion of a sovereign nation has been annexed to the United States by the U.S. Supreme Court.

Rasul begins with a discussion of two cases that were irrelevant to the question before the court, Ahrens v. Clark and the Braden case. Ahrens had adopted a strict rule that district courts may only hear cases within their territorial jurisdiction. Braden then softened that rule for particular circumstances--for cases where a defendant is in prison in one state but under indictment in another, allowing the defendant to bring a habeas action to challenge the indictment in the latter state's courts. Neither of these cases has anything to do with enemy combatants.

From a discussion of these relatively mundane decisions, the Rasul majority adopts a rather stunning non-sequitir: that ``because Braden overruled the statutory predicate to Eisentrager's holding, Eisentrager plainly does not preclude the exercise of section 2241 jurisdiction over petitioners' claims.''

It could almost be a rule of construction that when a lawyer says ``plainly'' or ``clearly,'' he usually is identifying the weakest point in his argument. Braden is a case concerned more with the technical aspects of judicial administration than with core questions of the scope of the writ. Eisentrager is different. The Nazi soldiers denied access to the writ in that case did not simply file in the wrong forum--Alabama instead of Kentucky--or at the wrong phase of their sentences. Eisentrager denied review to the Nazi soldiers because they were Nazi soldiers in the custody of the U.S. military in occupied Germany. It is not a case about how we administer the writ of habeas corpus, but about the power and nature of the writ and who may employ it. I doubt that there was any member of the court who participated in Braden who believed that the court in that case was destroying the foundation of Eisentrager.

So according to section III of Rasul, Braden killed the ``statutory predicate'' for Eisentrager and that's that. No more territorial jurisdiction requirement for habeas courts. Apparently even the Rasul court itself was unwilling to buy this argument, however, because section IV of the opinion goes on to explain that Guantanamo Bay, Cuba is really part of the territory of the United States--something which section III just told us irrelevant and unnecessary to the court's decision.

But territorial jurisdiction does matter--a point that the court seems to concede by attempting to annex Guantanamo Bay to the United States. But Cuba is not the United States. Eisentrager should be restored to its rightful place as the precedent that governs litigation attempted by enemy combatants outside of our territory--even for the special case of Guantanamo Bay. Eisentrager was the law of the land for over 50 years, until Rasul carved a hole into it. Through this act, Congress patches that hole and restores Eisentrager's role as the governing standard. We do this not because, or not just because, Rasul doesn't make sense and is wrong. We do it because Eisentrager's reasoning is compelling, and the rule that is established wards off much mischief.

Let me quote two key passages from Eisentrager that explain why enemy combatants outside the United States should not have access to U.S. courts. As that court began by noting, there has been:

. . . 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.

Nothing in the text of the Constitution extends such a right,

nor does anything in our statutes.

Not only has this always been the law, but it should remain so. Eisentrager explains rather clearly and eloquently why we do not let enemy combatants sue our soldiers in our courts:

A basic consideration in habeas corpus practice is that the

prisoner will be produced before the court. This is the crux

of the statutory scheme established by the Congress; indeed,

it is inherent in the very term ``habeas corpus.'' And though

production of the prisoner may be dispensed with where it

appears on the face of the application that no cause for

granting the writ exists, Walker v. Johnston, we have

consistently adhered to and recognized the general rule.

Ahrens v. Clark. To grant the writ to these prisoners might

mean that our army must transport them across the seas for

hearing. This would require allocation of shipping space,

guarding personnel, billeting and rations. It might also

require transportation for whatever witnesses the prisoners

desired to call as well as transportation for those necessary

to defend legality of the sentence. The writ, since it is

held to be a matter of right, would be equally available to

enemies during active hostilities as in the present twilight

between war and peace. Such trials would hamper the war

effort and bring aid and comfort to the enemy. They would

diminish the prestige of our commanders, not only with

enemies but with wavering neutrals. It would be difficult to

devise more effective fettering of a field commander than to

allow the very enemies he is ordered to reduce to submission

to call him to account in his own civil courts and divert his

efforts and attention from the military offensive abroad to

the legal defensive at home. Nor is it unlikely that the

result of such enemy litigiousness would be a conflict

between judicial and military opinion highly comforting to

enemies of the United States.

Other authorities also have emphasized that the Anglo-American common law tradition includes no place for habeas petitions filed by enemy aliens in military custody outside our territory. Law Professor Peter Lushing, in an internet posting commenting on the Graham amendment shortly after it passed the Senate, put the matter quite colorfully: ``the guys in the powdered wigs would have flipped over the idea that habeas extends to foreigners we are in combat with who have been captured and are being held by us abroad.'' He concludes: ``the Rasul decision has extended habeas far beyond what anybody alive during the ratification of the Constitution would have envisioned.''

Former U.S. Attorney General William Barr testified on the subject of detainees in the war on terror before the Senate Judiciary Committee on June 15 of this year. His testimony made a considerable impact on members of the committee--it persuaded several of us that something needed to be done legislatively to correct the current situation. Here is what Attorney General Barr had to say about the history of habeas and detainees:

The determination that a particular foreign person seized

on the battlefield is an enemy combatant has always been

recognized as a matter committed to the sound judgment of the

Commander in Chief and his military forces. There has never

been a requirement that our military engage in evidentiary

proceedings to establish that each individual captured is, in

fact, an enemy combatant.

Attorney General Barr went on to note:

World War II provides a dramatic example. During that war,

we held hundreds of thousands of German and Italian prisoners

in detention camps within the United States. These foreign

prisoners were not charged with anything; they were not

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

courts; and the American military was not required to engage

in evidentiary proceedings to establish that each was a

combatant.

The concerns that were expressed in the passage from Eisentrager that I quoted earlier also have been expressed by other, more recent commentators, with the present conflict against Islamic extremism in mind. For example, in a 2003 article in George Washington Law Review, law professor John C. Yoo notes the special importance of ``interrogating enemy combatants for information about coming attacks'' in this conflict, and concludes:

. . . de novo judicial review threatens to undermine the very

effectiveness of the military effort against al-Qaeda. A

habeas proceeding could become a forum for recalling

commanders and intelligence operatives from the field into

open court; disrupting overt and covert operations; revealing

successful military tactics and methods; and forcing the

military to shape its activities to the demands of the

judicial process.

Similarly, Andrew McCarthy, a former federal prosecutor who led the case against Sheik Omar Abdel Rahman, offered a stinging criticism of Rasual the day after the Supreme Court issued its opinion. He stated that:

How can it conceivably be appropriate to impose on our

soldiers the burdens of stopping to collect evidence and

write incident reports in the middle of fighting a war? Of

course they do a measure of that now--after all, it is much

in their interest correctly to sort out whom to hold and whom

to release. But, until now, that has certainly not been done

with the rigor anticipation of litigation will doubtless

produce. It is not enough to say, hopefully, that U.S. courts

will be indulgent given what's involved. Empirically,

judicial demands on governmental procedural compliance become

steadily more demanding over time, and government naturally

responds by being even more internally exacting to avoid

problems. In no time flat, what was once thought a trifling

inconvenience becomes a major expenditure--in this case one

that will inevitably detract from the military mission which

is the bedrock of our safety.

McCarthy also summarized why the Rasul decision is at war with the role and duties of the Federal judiciary in our constitutional framework:

In the Framers' ingenious construct, the courts of the

United States are supposed to be a bulwark protecting members

of the uniquely American community--i.e., citizens of the

United States and those aliens who, by their lawful

participation in our national life, have immersed themselves

into the fabric of American society--from the excesses of an

oppressive executive or a legislature insufficiently heedful

of their fundamental rights. It is the institution that

ensures the law and order a free people must have in order to

thrive.

Nevertheless, as manifested in Rasul, yesterday's case

involving claims of foreign enemy combatants captured on

faraway battlefields and held by the military in Guantanamo

Bay, Cuba--an installation outside the jurisdiction of any

U.S. court--the judiciary is no longer a neutral arbiter

there to ensure that Americans get a fair shake from their

government and its laws. Instead, it is evolving, or

morphing, into a sort of United Nations with teeth. It has

seized the mantle of international arbiter, ensuring that the

world--including that part of it energetically trying to kill

Americans--has a forum in which to press its case against the

United States.

McCarthy went on to conclude: ``Rasul is a dangerous decision. Congress should slam the door on al-Qaeda today.''

And again, former Attorney General Barr also commented on this same question--on the impracticality of applying judicial process and standards to questions of the detention of enemy combatants. Because of his authority and the force of his arguments, I quote from his June 15 testimony at length:

There appear to be courts and critics who continue to claim

that the Due Process Clause applies and that the CSRT process

does not go far enough. I believe these assertions are

frivolous.

I am aware of no legal precedent that supports the

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

the zone of battle have Fifth Amendment rights that they can

assert against the American troops. On the contrary, there

are at least three reasons why the Fifth Amendment has no

applicability to such a situation. First, as the Supreme

Court has consistently held, the Fifth Amendment does not

have extra-territorial application to foreign persons outside

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

Constitution does not create, nor do general principles of

law create, any juridical relation between our country and

some undefined, limitless class of non-citizens who are

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

to their capture, none of the detainees had taken any

voluntary act to place themselves under the protection of our

laws; their only connection with the United States is that

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

the nature of the power being used against these individuals

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

to subject these individuals to the obligations and sanctions

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

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

Process is inapposite.

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

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

is that the propriety of any decision can be judged by

determining whether it satisfies some objective standard of

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

arbiter based on an adversarial evidentiary hearing. What we

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

effort to take the judicial rules and standard applicable in

the domestic law enforcement context and extend them to the

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

or more dangerous.

These efforts flow from a fundamental error--confusion

between two very distinct constitutional realms. In the

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

disciplinary--sanctioning an errant member of society for

transgressing the internal rules of the body politic. The

Framers recognized that in the name of maintaining domestic

tranquility an overzealous government could oppress the very

body politic it is meant to protect. The government itself

could become an oppressor of ``the people.''

Thus our Constitution makes the fundamental decision to

sacrifice efficiency in the realm of law enforcement by

guaranteeing that no punishment can be meted out in the

absence of virtual certainty of individual guilt. Both the

original Constitution and the Bill of Rights contain a number

of specific constraints on the Executive's law enforcement

powers, many of which expressly provide for a judicial role

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

realm, the Executive's subjective judgments are irrelevant;

it must gather and present objective evidence of guilt

satisfying specific constitutional standards at each stage of

a criminal proceeding. The underlying premise in this realm

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

guilty going free than mistakenly to deprive an innocent

person of life or liberty.

The situation is entirely different in armed conflict where

the entire nation faces an external threat. In armed

conflict, the body politic is not using its domestic

disciplinary powers to sanction an errant member, rather it

is exercising its national defense powers to neutralize the

external threat and preserve the very foundation of all our

civil liberties. Here the Constitution is not concerned with

handicapping the government to preserve other values. Rather

it is designed to maximize the government's efficiency to

achieve victory--even at the cost of ``collateral damage''

that would be unacceptable in the domestic realm.

Attorney General Barr brought these concerns into relief with the following hypothetical example:

Let me posit a battlefield scenario. American troops are

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

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

the troops believe they had received sniper fire. The troops

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

suggested that the Constitution vests these men with due

process rights as against the American soldiers? When do

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

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

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

forces. Does this give rise to Bivens' Constitutional tort

actions for violation of due process? Alternatively, suppose

the fleeing men are captured and held as enemy combatants.

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

released unless the military can prove they were enemy

combatants? Does the Due Process Clause mean that the

American military must divert its energies and resources from

fighting the war and dedicate them to investigating the

claims of innocence of these two men?

This illustrates why military decisions are not susceptible

to judicial administration and supervision. There are simply

no judicially-manageable standards to either govern or

evaluate military operational judgments. Such decisions

inevitably involve the weighing of risks. One can easily

imagine situations in which there is an appreciable risk that

someone is an enemy combatant, but significant uncertainty

and not a preponderance of evidence. Nevertheless, the

circumstances may be such that the President makes a judgment

that prudence dictates treating such a person as hostile in

order to avoid an unacceptable risk to our military

operations. By their nature, these military judgments must

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

and even surmise. The President's assessment may include

reports from his military and diplomatic advisors, field

commanders, intelligence sources, or sometimes just the

opinion of frontline troops. He must decide what weight to

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

of the present state of the conflict and the overall military

and political objectives of the campaign.

Attorney General Barr goes on to consider the practical consequences of applying civilian due process concepts in the context of military detention of enemy combatants:

The imposition of such procedures would fundamentally alter

the character and mission of our combat troops. To the extent

that the decisions to detain persons as enemy combatants are

based in part on the circumstances of the initial encounter

on the battlefield, our frontline troops will have to concern

themselves with developing and preserving evidence as to each

individual they capture, at the same time as they confront

enemy forces in the field. They would be diverted from their

primary mission--the rapid destruction of the enemy by all

means at their disposal--to taking notes on the conduct of

particular individuals in the field of battle. Like

policeman, they would also face the prospect of removal from

the battlefield to give evidence at post-hoc proceedings.

Nor would the harm stop there. Under this due process

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

of detailed investigation of detainees' factual claims once

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

change the nature of the military enterprise. To establish

the capacity to conduct individualized investigations and

adversarial hearings as to every detained combatant would

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

more cumbersome and expensive. For every platoon of combat

troops, the United States would have to field three platoons

of lawyers, investigators, and paralegals. Such a result

would inject legal uncertainty into our military operations,

divert resources from winning the war into demonstrating the

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

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

vis every other fighting force in the world.

Second, the introduction of an ultimate decision maker

outside of the normal chain of command, or altogether outside

the Executive Branch, would disrupt the unitary chain of

command and undermine the confidence of frontline troops in

their superior officers. The impartial tribunals could

literally overrule command decisions regarding battlefield

tactics and set free prisoners of war whom American soldiers

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

such a prospect on military discipline and morale is

impossible to predict.

Attorney General Barr also noted that ``Supreme Court's decision in Rasul was a statutory ruling, not a constitutional one.'' He went on to point out:

An important consequence follows: Congress remains free to

restrict or even to eliminate entirely the ability of enemy

aliens at Guantanamo Bay to file habeas petitions. Congress

could consider enacting legislation that does so--either by

creating special procedural rules for enemy alien detainees,

by requiring any such habeas petitions to be filed in a

particular court, or by prohibiting enemy aliens from hauling

military officials into court altogether.

Obviously, the Congress has taken the former Attorney General up on his suggestion, particularly the third variation of it.

I should also say a few words about military commissions. The Judiciary Committee also heard enlightening testimony on the history of these commissions. Former Attorney General Barr commented on them as follows:

Throughout our history we have used military tribunals to

try enemy forces accused of engaging in war crimes. Shortly

after the attacks of 9/11, the President established military

commissions to address war crimes committed by members of al-

Qaeda and their Taliban supporters.

Again, our experience in World War II provides a useful

analog. While the vast majority of Axis prisoners were simply

held as enemy combatants, military commissions were convened

at various times during the war, and in its immediate

aftermath, to try particular Axis prisoners for war crimes.

One notorious example was the massacre of American troops at

Malmedy during the Battle of the Bulge. The German troops

responsible for these violations were tried before military

commissions.

As an aside, those disturbed by the tendency of some in the press and politics to take the side of the Guantanamo detainees--of those captured while at war with America--might find it interesting that the same phenomenon developed with regard to the Malmedy detainees. The Malmedy German soldiers were tried and convicted of massacring American POWs near the Belgian village of Malmedy during the Battle of the Bulge. This crime unquestionably occurred--the bodies of over 80 U.S. soldiers were recovered in a field, most of them shot in the head. Members of the German unit responsible for this crime later were captured and tried by a military commission. Over the years, these Nazi soldiers, at least some of whom unquestionably massacred American G.I.s, somehow managed to turn the tables on the U.S. military in the press and in political circles. Senator Joseph McCarthy took up their cause, as did other Senators. The most fanciful allegations of abuse made by these Nazi murderers were indulged by various prominent Americans, and the whole incident became a public relations embarrassment for the U.S. military. Eventually, this pressure campaign succeeded in winning the commutation of all death sentences given to the Malmedy killers, and all of the German soldiers involved--even their commander--were released from prison by the mid-1950s. For those who find it disturbing that the sympathies of the press (especially in Europe) and of various intellectuals have been misplaced on the side of the Guantanamo detainees, at least we can take comfort in the fact the perversions of truth and rank miscarriages of justice that have

resulted from such misplaced sympathy so far in this war pale in comparison to those that followed from Malmedy.

Perhaps first among those who would object to any sympathizing with the Guantanamo detainees would be Andrew McCarthy, the former Federal antiterror prosecutor. He has written often on this and other war-on- terror topics. I was pleased to see that shortly after the Graham/Kyl amendment first passed the Senate, he wrote a column for National Review Online lauding our efforts. It was titled ``Restoring Law and Order,'' and McCarthy's only complaint was that ``it has taken our national legislature nearly a year-and-a-half--during all of which we have been at war--to stir itself to address this serious national- security problem.'' So you can imagine my disappointment when, just two days later, Mr. McCarthy posted another column commenting on the final Senate language, which include some compromises to ensure bipartisan support. This column was titled ``Snatching Defeat from the Jaws of Victory.'' Some of its language I won't recite here. But its specific complaints bear scrutiny. Mr. McCarthy alleged that ``the senators resolved Tuesday that the ultimate decision about who is properly considered an `enemy combatant,' should rest with federal judges, not our military commanders.'' As he characterized the final Senate language, ``a panel of robed lawyers will second-guess the determination of [our soldiers'] commanders on scene that certain captives warranted detention--that holding them would be beneficial to the war effort.'' Similarly, with regard to military commissions, Mr. McCarthy complained that ``everything that happens in the commission would be reviewed by judges if this measure passes.''

I do not think that these words are an accurate characterization of the Senate-passed language. I think that Mr. McCarthy probably relied on inaccurate characterizations of the language that were published in the press at the time rather than on the language itself. Nevertheless, Mr. McCarthy's complaints did cause me and others to take another look at the language, to make sure that it does what we intended.

Limited judicial review of the decisions of the CSRTs and military commissions is authorized by paragraphs 2 and 3 of subsection 1405(e) of the conference report. These paragraphs authorize the same two narrow judicial inquiries into the ``status determinations'' and ``final decisions'' of the CSRTs and military commissions. The difference in language here is not intended to connote any substantive difference in the scope of review--it simply attempts to accurately characterize the work of each entity: ``making status determinations'' for the CSRTs, and ``reaching final decisions'' for the military commissions.

The review authorized by each of these paragraphs goes only to the following questions: did the CSRTs and commissions use the standards and procedures identified by the Secretary of Defense, and is the use of these systems to either continue the detention of enemy combatants or try them for war crimes consistent with the Constitution and Federal law? The first inquiry I think is straightforward: did the military follow its own rules? This inquiry does not ask whether the military reached the correct result by applying its rules, or even whether those rules were properly applied to the facts. The inquiry is simply whether the right rule was employed.

As to the second inquiry, here the language has been further modified in order to make clear the narrow scope of the inquiry. The original Senate language spoke of whether ``subjecting'' an enemy combatant to the CSRT or commission systems was constitutional and legal. This formulation was somewhat illogical in that the detainee would not complain of the fact that he was forced to go through a CSRT--rather, he would want to challenge its adequacy as a means for justifying his continued detention. And in any event, our concern was to make clear that this language in no way invites a re-evaluation of the correctness of the military's decision, even under a deferential standard of review. Nor does it invite an as-applied challenge. All that this language asks is whether using these systems is good enough for the ends that they serve--to justify continued detention or to try an enemy combatant for war crimes. The only thing that this provision authorizes is, in effect, a facial challenge. In fact, we anticipate that once the District of Columbia Circuit decides these questions in one case, at least so long as military orders do not substantially change, that decision will operate as circuit precedent in all future cases, with no need to relitigate this second inquiry in the future. In effect, the second inquiry--into the constitutionality and lawfulness of the use of CSRTs and commissions--need only be decided once by the court.

It bears quoting some of the thinking that undergirds the establishment of these review standards. Attorney General Barr, in his June 5 testimony before the Judiciary Committee, describes the philosophy and approach that paragraph 2's scope of review for CSRTs is designed to reflect:

It seems to me that the kinds of military decisions at

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

military operations--are quintessentially Executive in

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

employ in the domestic law enforcement arena. They cannot be

reduced to neat legal formulas, purely objective tests and

evidentiary standards. They necessarily require the exercise

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

of the reasons why the Constitution vests ultimate military

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

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

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

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

the military and political objectives of the campaign.

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

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

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

suggests that the court has the ultimate decision-making

authority and is only giving weight to the judgment of the

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

here is that the ultimate substantive decision rests with the

President and that courts have no authority to substitute

their judgments for that of the President.

And the thinking that underlies paragraph 3's scope of review for military-commission decisions is well articulated in Johnson v. Eisentrager:

It is not for us to say whether these prisoners were or

were not guilty of a war crime, or whether if we were to

retry the case we would agree to the findings of fact or the

application of the laws of war made by the Military

Commission. The petition shows that these prisoners were

formally accused of violating the laws of war and fully

informed of particulars of these charges. As we observed in

the Yamashita case, ``If the military tribunals have lawful

authority to hear, decide and condemn, their action is not

subject to judicial review merely because they have made a

wrong decision on disputed facts. Correction of their errors

of decision is not for the courts but for the military

authorities which are alone authorized to review their

decisions.'' ``We consider here only the lawful power of the

commission to try the petitioner for the offense charged.

There is another matter that I should mention before I yield the floor to my colleague from South Carolina. Some have asked why the jurisdiction-removing language in the bill is limited to Guantanamo. The answer is that Rasul is only about Guantanamo. Although the opinion contains the discussion of Ahrens and Braden that undercuts the ``territorial-jurisdiction'' rule for habeas courts, in the end the decision appears to be based on the unique status of the naval station at Guantanamo Bay--the permanent nature of the lease, for example, which can only be terminated by the United States. Justice Kennedy adopted a similar focus in his concurring opinion. I believe that Justice Kennedy's concurrence goes so far as to declare that Guantanamo is in practical respects a U.S. territory.

Some have raised the concern that the logic of Rasul will be extended to U.S. military and intelligence detention facilities in Iraq or Afghanistan. I think that such an extension would be very foolish and I do not think that the court will go there. I do not think that the Supreme Court is going to declare parts of Afghanistan or Iraq to be the territory of the United States. If the court does do so, we can of course legislatively overrule it, as we legislatively overrule Rasul today. But I do not think that it is either necessary, or respectful of the court's capacity for common sense, to preemptively overrule such an outlandish hypothetical decision. Does the Senator from South Carolina agree?

Well, that is what I thought before Rasul was decided. But we can cross that bridge if we get to it.

Mr. President, I see that we are nearing the end of our allotted time. If I could quickly address a few other minor issues and summarize briefly. It is important to note that the limited judicial review authorized by paragraphs 2 and 3 of subsection (e) are not habeas-corpus review. It is a limited judicial review of its own nature. All habeas actions are terminated by this bill. I hope that this change will also put to rest any arguments that extending habeas to prisoners also extends to them some type of substantive rights. I do not believe that supposition is correct because habeas is a vehicle for asserting rights, not a source of rights. The fact that an individual has access to habeas does not mean that he has any of the rights that he asserts. But in any event, because this bill leaves no habeas in place, that debate need not be rejoined.

Also, some have suggested that by vesting exclusive jurisdiction in the DC circuit for the paragraph 2 and 3 appeals, this bill bars even Supreme Court appellate review. That was not the drafters' intention, nor do I believe that it is a correct reading of the legislative language. Supreme Court review is implicit, or rather, authorized elsewhere in statute, for all judicial decisions. It is rarely mentioned expressly. In fact, when it is mentioned, it is sometimes to preempt Supreme Court review. Far example, the limit on successive federal habeas petitions for state prisoners in section 2244 bars petitions for certiorari following a three-judge panel's decision on a successive-petition application. The clear implication of these provisions is that Supreme Court review is implicitly allowed except where expressly barred, and thus since it is not barred here, it is allowed.

uniform standards of interrogation for detainees

Mr. President, I rise today to call attention to a provision contained in the conference report to H.R. 3010, the fiscal year 2006 appropriations bill for Departments of Labor, HHS, and Education. I am pleased to see that House and Senate conferees were able to provide $100 million for the Teacher Incentive Fund. The Teacher Incentive Fund was first proposed in the President's fiscal year 2006 budget, and will offer an appropriate incentive to States and local education agencies to advance the goals of the No Child Left Behind Act.

The No Child Left Behind Act, enacted 4 years ago, raised expectations for students and teachers. Students are expected to raise their achievement level, and teachers are accountable for reaching the specific goals. The Teacher Incentive Fund is an appropriate follow up to the No Child Left Behind

Act. It is a pilot program for States and school districts to provide additional compensation to teachers who make a measurable impact on raising student achievement. Under this incentive program, Federal funds would be available to States and local school districts for the purpose of developing new compensation systems to reward teachers who raise achievement and to provide an incentive to attract effective teachers to what the Department of Education calls high-need schools. These are schools with high poverty rates and poor performance on State assessments. The Teacher Incentive Fund provides States and school districts with another tool to raise teacher quality and, thus, close the achievement gap, which, of course is the primary goal of the No Child Left Behind Act.

In October, the Senate Republican Policy Committee, of which I am the chairman, released a policy paper in support of merit pay for teachers in general and the Teacher Incentive Fund specifically. The paper, titled ``Teachers Are Key to Success of `No Child Left Behind' Act: Better Pay for Better Teaching,'' discusses research in support of merit pay for teachers, and the success merit pay programs have achieved.

Mr. President, I ask unanimous consent that this paper be printed in the Record following my remarks.

Mr. President, I have a unanimous consent request to remake.

As my colleagues know, there is one major unfinished piece of business yet that we need to conclude, and it is the action on the tax reconciliation bill. This is a bill which has the section 179, small business expensing, the small savers credit for low-income families, those making under $25,000 a year, above-the-line deduction for college tuition costs, R&D, tax credit, and extension of capital gains and dividends.

These are all-important matters that we need to act on.

As a result, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 325, H.R. 4297, the House reconciliation bill.

I ask unanimous consent that all after the enacting clause be stricken and the text of S. 2020 as passed by the Senate be inserted thereof; that the bill, as amended, be read a third time and passed, the motion to reconsider be laid upon the table, the Senate insist upon its amendment and request a conference with the House and the Chair be authorized to appoint conferees at a ratio of 2 to 1.

Reserving the right to object to the proposed amendment to the unanimous consent, I believe on our side we would not object to the form of the so-called AMT patch that the Senator from Montana has proposed. Of course, we would object to his counting of that against the reconciliation number, or the so-called pay-go provision.

I guess I ask for an amendment to his proposed amendment which would accept the broader AMT patch, as the Senator first described it, but nothing in addition to that.

Mr. President, one of the key items of business that we have to do before Christmas is to reauthorize the PATRIOT Act. I know there is some confusion about exactly where we stand on that. Let me clarify that right now.

First, where are we with respect to the reauthorization of the PATRIOT Act? Why? And what can we do to move forward? I think most folks by now appreciate the fact that after September 11, we understood there were significant problems with our law and we needed to make some changes to fill in some loopholes and to make changes that would give our law enforcement and intelligence agencies the tools they needed to fight this new enemy, the terrorists. As a result, we passed the PATRIOT Act. But we said we wanted to sunset provisions of the PATRIOT Act so that we would have to revisit them before they would become permanent law. We are now at that point. The law will expire on December 31 unless we reauthorize it.

So the Senate worked on it for about 8 months. We passed a version of the PATRIOT Act to be reauthorized. The House of Representatives did the same thing. There were some modest differences between the two bodies. We created a conference committee to iron out the differences, and I served on that committee. The Senate got most of its way in the conference committee. Most people have said about 80 percent of the compromising was done by the House. Nonetheless, the version we have before us is a version that I support. It is a good version, as the House of Representatives found when it passed overwhelmingly before the House recessed and left Washington, DC. In fact, I believe 44 Democrats supported the reauthorization of the PATRIOT Act in the House. Now it is up to us to approve it as well and then

send it on to the President for signature.

Once a conference report is completed, it is no longer amendable. We all understand that. But some Members of the Senate decided they wanted to amend it, even though there is no procedure for amending it. So they decided to filibuster the bill. When we took a vote on it, it had majority support. There were over 50 Senators who wanted to reauthorize the PATRIOT Act, but the minority of Senators wouldn't let us vote on it. They successfully filibustered it. They said: We are not going to let you vote on reauthorizing the PATRIOT Act because we would like to make some more changes.

The time for making changes is up. You can't make any more changes once a conference report has been filed. They know that. So it is a little curious to me why they keep saying, we want to extend it so we can make some more changes. That is not the procedure of the Senate, and it can't be done. The conference has been discharged. The House of Representatives has gone home. Even if we wanted to go back into the conference and make changes, we couldn't do it.

There is a way we can accommodate those who wish to make further changes to the PATRIOT Act, but it is not by filibustering. It is by allowing us to have the vote, pass the PATRIOT Act reauthorization, and then introduce those changes you would like to make in it, and we will deal with those in the regular process of hearings and presenting the matter to the floor. As a matter of fact, I would like to do that myself. There are some things I would like to add to the PATRIOT Act, and I fully intend, after we reauthorize it, to introduce that either as an amendment to a bill next year or as a separate bill, and to seek hearings in the Judiciary Committee so we can try to move the additional things I would like to see in the act.

My colleagues are certainly welcome to do the exact same thing. We might even get together and try to have one hearing at which that is done. That is the regular order. That is the way we could make the changes they are talking about, if a majority of Senators agree. But I think that is the rub. I suspect they can't get a majority of the Senators to agree to the changes they would like to make. They couldn't get a majority of the conference committee in the House or the Senate to agree. So they would now like to try to use pure force rather than logic to get their changes.

If they have the confidence that their changes make sense, then why wouldn't they want to simply offer them next year and let's vote on them? If they have 51 votes, they become law. Instead, they want to somehow pressure us at this point into letting the PATRIOT Act expire, and then everyone feels we have to do something so we accept their unreasonable demands.

That is not the way to legislate, and it is not a responsible action. We should defeat the filibuster, not allow the PATRIOT Act to expire but to extend it for the period of time that the conference agreed, which is a period of 4 years. And if additional changes are to be made, they can be made starting as soon as we come back here next January. That is the way to do business.

There are those who have said: Let's extend it for a few months. As I said, you can't extend it for a few months. There is no legislative way to do that. It expires December 31. The conference committee is closed down. The House has gone home. We are going to finish up in another day or two here. So you simply can't snap your fingers and extend a law. You have to pass it. It has to be signed into law by the President. He said, no, we are not going to have any short-term extension. We have a long-term extension right in front of us. It is called reauthorization. Allow the Senate to vote. If you do, they will vote with a majority vote to reauthorize the act. Then it is done. If you then want to make changes, you are welcome to do that.

What are these big changes that have been talked about? The only ones I have heard about are two that were mentioned by the Senator from California who spoke before I did. I don't understand either one of them. She said we have to make changes, some checks and balances, with regard to these library records or bookstore records. Secondly, if you have your house searched, you need notice within 30 days.

That is what the compromise provides. The conference committee provided a 30-day notice if your house is searched, so that instead of the reasonable standard, which is what exists today, you would have to be notified in 30 days. By the way, why aren't you notified immediately? In most cases, you are. But there are some cases where you are not notified of a warrant that has been issued. Why is that so? Suppose you are a couple of gangsters and the prosecutor wants to tap your telephone to find out if you are making illegal deals about drug running. He goes to the court and gets a warrant to tap your phone. Are you told about that? No, of course not. Sometimes a warrant is obtained and you are not told about it. You are not told if your house is searched or if your telephone is tapped because to do so would allow a witness to be compromised or a party of interest to escape the country or the information not to be obtained because you know that you are under the watchful eye of the prosecutor at the time. So sometimes you are not told about a warrant. But there is always a limit on that timewise.

In the PATRIOT Act, the House had something like, I believe, 150 days or 180 days. The compromise was 30 days, which is exactly what the Senator from California said we needed. I don't understand what the problem is there.

With respect to libraries, this is the section 215 we have talked about forever and ever. This is simply the business records administrative subpoena for which 335 examples exist in our books on the law today. If you are investigating somebody for Medicare fraud, you can get one of these subpoenas. A subpoena is not a warrant. A subpoena is a request for information. If you suspect somebody of fraud on the IRS, the IRS can get one of these administrative subpoenas. It is a request for information. Do you have to have a judge authorize that request? Not for 335 of these. There is only one that you have to have a judge for, and that is if you are investigating terrorism. The one that ought to be the easiest is the hardest because we are so concerned about protecting civil liberties that we say under the PATRIOT Act, you have to go to a judge first, even for a subpoena--not just a warrant, for a subpoena.

So it has all the protection I think one would want. But we say we need a standard. So what is the standard the courts have applied? A relevancy standard. We will put that in, too. That is still not enough. We want a three-part test that ties it into international terrorism. Fine, we put that in. And one more thing; we want to make sure any records are destroyed within a reasonable time and that people are not told of this information. We said the Justice Department has to set that up. That is still not good enough. We want to make sure it is not abused. Fine. We will have a report from the executive branch every 6 months to Congress explaining in great detail how many subpoenas were issued, what the problems were with them, if any, and anything else that Congress wants to know about the use of these so we can have oversight.

There is not much more you could do and still have an effective section 215. Why is section 215 used? As we know, two of the hijackers, al-Mihdhar and al-Hazmi, the two who were on the plane that came into the Pentagon and killed 125 people there, as well as the people on that flight from Dulles Airport, their airline reservations for September 11 were checked on August 31 on a computer at a library, and had we had the PATRIOT Act library record ability to check that out, and had we known of those two people who I am talking about here, we could possibly have known they were checking reservations for September 11 and intercepted them and prevented them from getting on that airplane.

The bottom line is there are circumstances in which you want business records. Libraries have business records the same as any other kinds of entities. There is nothing wrong.

This has been the law forever. We have built in a lot of protections. I don't know what more anybody would want with respect to protections for these particular records.

So even if you assume that there is more to be done, my question is, how

much more? The differences have been characterized from the other side as minuscule. They have said let's extend this and a couple of other changes we want to make. If that is the case, then why is the other side willing to let the entire act expire? We don't have the protections of the PATRIOT Act over provisions that are not that important, especially since they could be offered next year in an amendment to any bill. We could have hearings for them in the Judiciary Committee. There would be no problem considering these kinds of requests.

If it expires, the PATRIOT Act's provisions no longer protect us. One of those is to allow the FBI and the CIA to talk to each other. Let me explain why this is important. This wall that used to exist was torn down by the PATRIOT Act. Patrick Fitzgerald, who is the U.S. attorney who is currently a special prosecutor, as we know, looking into another matter, testified how the wall worked in practice.

He said:

I was on a prosecution team in New York that began a

criminal investigation of Osama bin Laden in early 1996. The

team . . . had access to a number of sources. We can talk to

citizens. We could talk to local police officers. We could

talk to other U.S. Government agencies. We could talk to

foreign police officers. Even foreign intelligence personnel.

And foreign citizens. . . . We could even talk to al-Qaida

members--and we did. But there was one group of people we

were not permitted to talk to. Who? The FBI agents across the

street from us in lower Manhattan assigned to a parallel

intelligence investigation of Osama bin Laden and al-Qaida.

We could not learn what information they had fathered. That

was ``the wall.''

The ``wall'' had deadly consequences. The 9/11 Commission report contained detailed examples of how the wall prevented them from cooperating, the FBI and CIA, prior to 9/11--and perhaps the biggest example is the one I cited in which Khalid al-Midhdar and Nawaf al- Hazmi, two of the hijackers, were known to the CIA and that they were connected to terrorism. They had been connected to the Cole bombing and they were in the United States. The CIA refused to give the FBI the information because of this wall.

I mentioned the fact that we later learned they had actually checked their September 11 airline reservations on a library computer. The FBI agent working on the case in Washington, DC, after being unable to communicate with the CIA, said this:

Whatever has happened to this--some day someone will die--

and wall or not--the public will not understand why we were

not more effective in throwing every resource we had at

certain ``problems.''

That agent was right, and thousands did die. That wall is going to go back up if the PATRIOT Act is not reauthorized. So those people who have filibustered the PATRIOT Act and prevented us from voting on it, prevented the will of the majority from prevailing in this body. Since a majority of both House of Representatives and the Senate favors reauthorization of the PATRIOT Act, those people will have prevented us from having in place the PATRIOT Act to protect us from the terrorists. They will have allowed this wall to be resurrected to prevent the FBI and the CIA from talking to each other and we are going to be right back where we were before September 11.

Again, I say, as the FBI agent did, what happens if some terrorists should strike us and we could have prevented that had the PATRIOT Act been in effect? Those who filibuster this act had better ask themselves that question. They have a very simple way to get around the answer; that is, allow us to have our vote. It will take 20 minutes. We can reauthorize the PATRIOT Act and it is back in force and then any other little changes you want to make to it, we will consider them next January, next February. What is wrong with that offer, considering what is at stake.

I urge my colleagues again that the PATRIOT Act needs to be reauthorized. All it takes is for the other side to stop its filibuster, allow us to take the vote and, by a majority vote, we will reauthorize it, thus giving the American people the protection we deserve from the law enforcement and intelligence agencies who need this vital tool.

Mr. President, I object.

Reserving the right to object, would the minority leader stand for a question?

In the Philadelphia Inquirer, a reporter by the name of James Kuhnhenn has quoted the distinguished minority leader, and this has been out on the airwaves. I don't want people to be quoted inaccurately. This was according to a report of December 17, 2005, and this comment is attributed to the Senator from Nevada: ``We killed the PATRIOT Act.''

I ask my friend, the distinguished minority leader, whether that is an accurate quotation of what the Senator said.

I will explain why I ask the question. It was reported to me that in the remarks the distinguished Senator made, he said, ``Let's be clear about who is killing the PATRIOT Act.'' I just wanted it to be clear that the action taken to prevent us from getting a vote on the PATRIOT Act was an action, a filibuster, or not invoking cloture, and that action has prevented us from completing action on the PATRIOT Act, which means we were not able to take a final vote on it and therefore to reauthorize it.

Objection, Mr. President.

If I may ask the minority leader----

Mr. President, the minority leader has the time right now; is that correct?

If the leader would like to relinquish the floor to me, I can respond to the Chair rather than going through the minority leader. Otherwise, I will go through the leader and respond to the Senator from Illinois that way.

Mr. President, let me respond to the minority leader and to the question asked of me. The words that the minority leader used were ``killed the PATRIOT Act.'' I don't suggest that this reflects his view that the PATRIOT Act should not exist. I want to be very clear about that, just as I am sure the question posed to me by the Senator from Illinois doesn't mean to suggest that my objecting to a 3-month extension means that I don't want the PATRIOT Act to exist. I have made it crystal clear in all of my comments before today that that is precisely what I want to see--if not the PATRIOT Act in its existing form, until December 31, in the modified form as developed in conference between the House and Senate. I think we can both agree that we understand that the PATRIOT Act is a good thing and indeed it is a good thing whether in the existing form or in the form that came out of conference committee.

Let me address that for a moment. As we know, in the Senate, we passed it out unanimously--unanimously--and it is difficult for me to see why Members of the other side of the Chamber are proud of having filibustered it so it cannot come up--don't use the word ``killed it''--having prevented it from coming to a vote when, by everyone's agreement, about 80 percent of what the Senate passed unanimously ended up in the final version of the conference committee report. By 80 percent, I mean of the contentious issues. Most of the bill was not contentious. There were a few provisions that were. On those, the House of Representatives in the conference committee conceded most of the ground. So, in other words, the Senate mostly got its way in that discussion.

It seems to me that what the other side is basically arguing is, unless we get our way 100 percent, then we are not going to agree to this. The distinguished minority leader pointed out that everybody knows how the filibuster rules work. I think it is also clear everyone knows how the two Chambers work together. We pass our version of the bill, the House passes its version of the bill, there are a few items in disagreement, and those are

compromised. It is not that one Chamber gets its way and the other Chamber has to concede to everything.

What has been clear from the House of Representatives is that 3 months, 6 months, 1 year is not going to change anything. They have come to the conclusion that they have already conceded more than they should have. Frankly, from my position, I would be of that same view.

It seems to me that were there to be additional concessions made, we would no longer have a PATRIOT Act that could easily be used by our law enforcement and intelligence people to protect us. It would make it more and more difficult. As a result, you do have to draw the line somewhere and say: Look, if you try to change this any more, it is not going to protect the American people; in fact, it is going to prevent law enforcement and intelligence people from doing their job of protecting the American people.

There does come a point in time when you have to say this is it. Either you are going to be for extending this or not, and that is the position we were in last week when the minority--a majority favored moving forward; I think it was 52, 53 votes. A minority said no, but that minority under our rules had the ability to prevent us from moving forward.

I will be happy to yield for a question.

Let me answer that question, and I will be happy to yield again.

I don't believe the Senator heard me use the words ``radical position.'' I have not contended anything is a radical position. What I have said is it would not work. We do want something that will work to protect the American people.

Mr. President, let me answer the question this way: Since it is not at all clear, given the holidays and the fact the Senate is only in session at the very end of January, that we could resolve heretofore unresolvable issues in 90 days, how about a 1-year extension? That way, we would make sure the PATRIOT Act did not expire, we would have it in force, and whatever time it took for us to try to reach agreement, there would at least not be uncertainty; we would know what the law was. If we were able to reach agreement in the meantime, then, of course, we could pass the bill and whatever changes that would be made were made. Let me answer the question that way and perhaps not pose a specific unanimous consent request but see what the response of the Senator from Illinois would be were I to do that.

The Senator from Illinois certainly makes the point that when you have a longer deadline, work tends to be put off. I make this point: The distinguished chairman of the Judiciary Committee is here. We have been working for the better part of a year on this reauthorization of the PATRIOT Act. The chairman can tell us when the Judiciary Committee took it up. There were a lot of sessions before that. For many months now, this issue of reauthorization has been well known to all of us. We have known what the deadline was, and we worked on it and worked on it hard.

I think people of good faith have reached the degree of compromise they believe they can reach at this point. Given the fact that most of the concessions were made by our House colleagues and that they have indicated they are not ready to make any additional concessions and that the President has made it clear he does not want to see the act degraded any further than the conference report presented to us, I suggest that at some point legislators need to make a decision either to vote yes or no and not to hide behind what is, in effect, a procedural vote--namely, a filibuster--and saying: We are really for it; that wasn't really a vote to kill it; we were just voting not to vote on it. When you filibuster a bill, when you vote not to vote on something, it is the same thing as voting against it in practical effect when the act expires on December 31.

So my suggestion is that we roll up our sleeves, if you want a real deadline, instead of 3 months from now, we have another week. We are going to be here apparently until Friday. Let's conclude our work, vote on it, have an up-or-down vote, and see whether people really are ready to go into the new year without an extension of the PATRIOT Act.

I am happy to yield the floor to the Senator from Pennsylvania.

Mr. President, this resumes our discussion of the PATRIOT Act, which we were discussing before this little interlude. Since much of the attention has been focused on section 215 of the PATRIOT Act, I want to discuss that for a little bit.

The Senator from Illinois, for example, was talking about that just before we broke and, specifically, talked about the subject of section 215, which includes financial records, library records. Incidentally, ``library'' is never mentioned in the PATRIOT Act. It is just that library records are included in the general definition of business records. As a result, people have focused on that. So we are going to talk about that for just a little bit.

As he pointed out, the standard for a court to issue a warrant is relevance. That is the same standard that is used in all the other civil subpoenas. It is a standard that the courts had begun to impose since we did not have a standard within the law itself. Given the fact that is the standard the courts began to impose--and it is a reasonable standard--we amended that into the law. Part of what passed the Senate unanimously was a relevance standard. So there is nothing wrong with having a relevance standard. I would think those who are weary of the application of the PATRIOT Act would agree this was a good addition. It is an additional safeguard to have a relevant standard.

What exactly is section 215? That is what I would like to address. What it allows is for the FBI to seek an order from the Foreign Intelligence Surveillance Act Court for the production of tangible things--that is the definition--including books, records, papers, documents, and other items for an investigation to obtain foreign intelligence information. That is the key. You are before the Foreign Intelligence Surveillance Act Court, and you are asking for information that pertains to an investigation of foreign intelligence information. That is further defined in the act as information relating to foreign espionage, foreign sabotage or international terrorism.

It is impossible to get from the court--talking about getting an order from a judge--anything that isn't relevant to foreign espionage, foreign sabotage or international terrorism. All of this concern about wanting to find out what kind of books you checked out from the library is simply wrong. Anybody who talks about it in those terms and knows what I have said cannot be serious about objecting to section 215 of the PATRIOT Act.

Let's put it in context. There are 335 administrative subpoenas authorized for our Government. For example, if you are suspected of Medicare fraud, the Department of Health and Human Services has to issue an administrative subpoena to get information relating to whether you might be guilty of Medicare fraud, such as your business records or somebody else's business records that would perhaps go to proving that case. Or perhaps bank fraud, you could get the bank records that might pertain to that. In none of these other 335 cases is it necessary to go to a court first. There is only one exception. Under the PATRIOT Act, you are required to go to the FISA Court in order to get a subpoena with respect to terrorism. One would think that given the seriousness of terrorism and sometimes the emergency nature of it, it would be easier to get a subpoena dealing with terrorism than it would Medicare fraud or bank fraud. That is not the case. We care so much about civil liberties, we added this requirement that you have to go to court first in order to get the subpoena. This is not a search warrant. This is a subpoena. It is merely a request for information. Unlike a warrant, a subpoena does not allow the Government to enter someone's home or business or property to take things. It is only a request. If the recipient objects to it, the Government has to go to court and defend the subpoena and seek an order for its enforcement. That, too, is where I disagree with my friend from Illinois. There is an ability to say, no, we will not submit the records, in which case the Government has to prove them in court.

Most Government agencies already have the authority to issue subpoenas, and there are 335 of them in the code. It is interesting. If Mohamed Atta were suspected of Medicare fraud, then the Department of Health and Human Services could get a subpoena into business records that might demonstrate whether he is connected with that Medicare fraud. It seems to me to be a little bit incongruous not to allow the Department of Justice to go to the FISA Court and ask for a subpoena in the event that they suspect him of terrorism, especially when we have added the other protections in here that the conference report has added--the relevancy standard and an additional three-part test that makes it clear that it has to relate to foreign espionage or terrorism.

Some people say: The section 215 subpoena is a little different because these other subpoenas relate to regulated industries. Even subpoenas that are involved in investigating industries that are used to get information from citizens outside the regulated industry use it in a situation where people are outside of the industry and not just the regulated industry itself. For example, if you are talking about some kind of business fraud, if the SBA is seeking an administrative subpoena, they are not just subpoenaing the beneficiary itself. They can subpoena others doing business with the entity under investigation. In one important way, the PATRIOT Act has more protections in it than any of the others because you are required to go to court first. I dare say that most of the people who are raising questions about this don't advertise the fact that you have to go to court, you have to get approval from a judge first.

Even a subpoena to appear before a grand jury is issued without going to the judge. There may be a misconception about that, but all the prosecutor has to do is write out the subpoena and you have to supply these business records in accordance with the law to the grand jury. You never have to go to a court first. The only time you have to go to court first is a subpoena invoked under section 215.

One of the complaints is that 215 can be used to obtain books from libraries or other kinds of business records. Of course, to the extent library records are business records, that is true. But it does not, obviously, allow the FBI to simply go into a library and figure out what somebody is reading. It can be used to get library records but only if they are relevant to an investigation into foreign espionage or terrorism.

Let me give an example. Some people remember the case of the Unabomber, Ted Kaczynski. This was an example given by the Justice Department because his brother had actually relayed to Federal agents his suspicion that Ted Kaczynski was behind the decades-long string of attacks. Remember the mail bomb attacks? At the time, the Unabomber had published his manifesto in the New York Times which cited several obscure, even ancient texts. In order to confirm the brother's suspicions, Federal agents subpoenaed Ted Kaczynski's library records and discovered that he had, in fact, checked out the obscure texts that had been cited in the manifesto, thus helping lead them to Ted Kaczynski as the Unabomber. Is there anything wrong with that? Would anybody have an objection to that? That didn't even require going to a court to get the subpoena.

Section 215 also could have been used directly in investigating the conspirators who acted on September 11. How so? We now know that in August of 2001, a month before September 11, individuals using Internet accounts registered to Nawaf al Hazmi and Khalid al Midhar had used public access computers in the library of a State college in New Jersey. The computers in the library were used to shop for and review airline tickets on the Internet travel reservation site. Al Hazmi and al Midhar were hijackers aboard American Airlines Flight 77, the flight that took off from Dulles Airport and crashed into the Pentagon. The last documented visit to the library occurred on August 30, 2001, a dozen or so days before that fateful day. On that occasion, records indicate that a person using al Hazmi's account used the library's computer to review September 11 reservations he had previously booked.

I hope the significance of this sinks in. Library records confirmed airline reservations on September 11. During that same month, August of 2001, Federal agents knew that al Midhar and al Hazmi had entered the United States and initiated a search for those two

known associates of al-Qaida. Had the investigators caught the trail of these individuals and had the PATRIOT Act already been law, the investigators likely would have used section 215 to review the library's records of their Internet usage. Imagine if we had then picked them up, how the course of history might have changed.

This is the use of section 215 relative to library records. It has nothing to do with you and me, nothing to do with what we read in the library. It has to do with determining whether there is information relevant to a foreign terrorist or international espionage, nothing more. It could theoretically have had an impact on the course of events that occurred on September 11, had we been able to use it in connection with al Hazmi and al Midhar. I also want to mention the fact that over half a dozen reports submitted by the inspector general of the Department of Justice have uncovered no instances of abuse of this section. The latest public report indicates that the authority had been used approximately three dozen times and that it had not been found to have been abused. Moreover, in the conference report which was filibustered, the one we would like to be able to vote on so that the act could be reauthorized, we require reports every 6 months to the Congress. These reports are very specific as to the kinds of information with respect to section 215 that we want to review, including whether, as a result of the audits done by the inspector general, there is any potential abuse or there was any potential abuse of this section.

So, Mr. President, we have the original section 215, which already had protections that are unlike any other use of an administrative subpoena; added onto that is the requirement that you have to go to the FISA Court, that it must relate and must be relevant to an investigation into espionage or terrorism. And we have an after-the- fact report so that if anything went wrong, or that the inspector general had reason to suspect. That information comes to the Members of Congress every 6 months. It seems to me that any fair reading and fair consideration of section 215 would lead to the conclusion that it is an authority that we need, that it is an important tool for law enforcement, that it has adequate protections built into it, and that all of the hype that surrounds this is, frankly, just exactly that-- that it is an effort to draw some kind of conclusion, create some kind of confusion here that something is wrong with the law, that it is potentially used to eavesdrop on American citizens or somehow sneak their records in a way that could nefariously be used by the U.S. Government.

There is not one example where this has occurred or where anybody is complaining about the use of section 215 that harmed them. With all of the protections we have built in, I ask my colleagues, what else exactly do you want? What could you do? How would you change this? What would be different? Why isn't the bill that is before us adequate to both protect American civil liberties and, importantly, protect all of our freedoms by giving law enforcement and intelligence agencies the ability they need to carry out their mission?

Let me conclude with respect to this argument that if we just had a little bit more time, maybe we could reopen this and resolve issues. First of all, the conference committee is closed. As a matter of procedure, we cannot just reopen a conference committee. Secondly, a lot of things could have been raised or were raised in conference committee that would be revisited.

I will tell you what some of those things would be in the event you are interested in having these things revisited. I wanted to include a provision relating to terrorist hoaxes. That is not in here. We know when somebody phones in with a hoax, the police or the fire department or the bomb squad or the hazardous material squad need to be sent out. It can be a horrible drain on law enforcement, and there ought to be a way to deal with these hoaxes in a much more serious way.

Law enforcement would like to have a better definition of ``material support.'' This is used in statutes to deal with people who are providing support--the accessory before the fact kind of situation. Because of the kind of support that can be provided to terrorists, that section probably could stand some further definition. I would like to be able to do that in another conference committee.

The Classified Information Procedures Act is something that was initially considered and should be considered again if a new conference committee is opened. Frankly, the House was asked to eliminate an important death penalty provision, and they did that in conference, as well as some other provisions that I very strongly would like to have in the bill.

Let it be clear that if a new conference committee were created, there would be all sorts of issues that would be brought to bear, and negotiation is a two-way street. There are other ways we could improve on by strengthening the PATRIOT Act. I would want to be sure that those things are developed and are brought to bear.

Finally is this matter that has been brought up regarding eavesdropping on the citizens of the United States. A couple of my colleagues, just before the vote on the PATRIOT Act on the cloture motion, said they had been going back and forth on whether to support it. They read the article in the New York Times and that was dispositive in their minds that they had to vote against cloture. Bear it in mind, it has nothing to do with the PATRIOT Act. In other words, the disclosure of this kind of intelligence gathering that has been in the news in the last 72 hours or so has nothing whatsoever to do with the PATRIOT Act. I gather there is a view that, well, if the administration does one kind of thing, they might therefore be willing to abuse the law in another situation. That is exactly why all of these protections have been built into the PATRIOT Act.

I would think my colleagues would want to pass the PATRIOT Act, make sure that it is now the law, rather than leaving the PATRIOT Act the way it is today. They asked for an extension. Yet if they wanted to improve it and add additional protections, one would think they would want to act quickly to get these protections into the law. Congress will, in fact, obviously, be looking into these new allegations. I urge my colleagues, as well as the American citizens, to think about two things. First of all, the question of whether anybody has complained during the time, under both President Clinton and President Bush, the procedures have been in effect for us to be able to gather certain kinds of information and to do so under the powers of the President. When we are at war, he has ability to accept communications of the enemy. Nobody has to point to a section of the law that gives him some kind of search warrant authority to go to a judge and ask for the ability to do that. All Presidents have always used that authority in a time of war. The President relies upon that authority in this particular case. Members of Congress had been briefed on that for years.

Only until this New York Times article came out did Members of Congress find themselves absolutely shocked that this kind of activity might be going on and, furthermore, that it caused them to vote against consideration of the PATRIOT Act, which that has nothing to do with. I will say it again.

These stories in the media have nothing to do with the PATRIOT Act. So it seems to me that that is not a good excuse for not being able to vote on the PATRIOT Act.

The second thing I want to say with respect to that is--and I certainly do not refer to any of my colleagues in the Senate when I make this comment--but there is in the media a significant degree of hypocrisy. I note some of the stories day after day were focused on the improper disclosure of the identity of a person working for the CIA, as if this is about the worst thing that could ever occur. ``How dare anybody leak classified information'' was the mantra day after day. How indeed.

But have you heard anybody raise the question of the appropriateness of the leaking of this very highly classified program that is now out in the media and discussed by American citizens, about the collection of information that relates to terrorists? It is called eavesdropping on American citizens, but that is not what it is. The President made clear in his press conference this morning that we are talking about communicating with terrorists or people who have connections

with known terrorists. If you call one of those people, you might expect that somebody might want to know about that. Or if they call you. In that case, I guess you might consider yourself vulnerable to the U.S. Government being interested in what you are doing talking to a terrorist. But we are not eavesdropping on American citizens.

The real question I ask is, where is the outrage with respect to the release of this classified information, disclosure of this highly classified program which, as the President noted this morning, can greatly degrade our intelligence capability and harm our ability to fight the war on terrorism? He was asked to give an example, and he did. He gave the example of how it used to be that we knew how Osama bin Laden was communicating. He was communicating pursuant to a certain device. Somebody leaked to media that we had the ability to intercept the communications from that particular device. Guess what he did. He stopped using it. He went underground, and we could no longer listen in to what he was saying. What he was saying beforehand was very helpful. Now we cannot hear anything.

The same thing is true here. Somebody, in order to hurt the administration, I gather, decided it would be a really dandy thing to leak to the public a highly sophisticated program used to gather information from terrorists, to help us protect the American people in the war on terrorism. Have you heard any condemnation of that on the Senate floor? Have you heard any condemnation of it in the mainstream media? No, they were very concerned when the identity of a CIA agent who is known anyway, I gather, was released. I guess that is high dudgeon. I have not heard a peep out of anybody in the mainstream media criticizing whoever it was that leaked this highly classified program, that is now out in the public.

Mr. President, this leaker has to be brought to justice, and the President this morning said he gathered that the usual processes in the Department of Justice to look after such things were in place and were being pursued. I certainly hope so because every time a leak such as this occurs, it degrades the country's ability to protect the citizens of the United States. Whatever this collection methodology is--and thankfully it hasn't been described in much more detail, but whatever it is, we don't want the other side to stop doing it or that is another avenue of information that is closed off to us.

So why would we want to make a big public disclosure of all of this? At a minimum, when those of us in the Congress look into this further, as we surely will, we will need to do this in a classified setting. I wonder how much of that will remain classified. I wonder whether we are able to keep a secret around here.

If we are going to fight the war on terror, let's remember, unless we want to fight it on the battlefields of Afghanistan or the streets of Baghdad, the best way to defeat the terrorists is through intelligence- gathering agencies. What that means is having the capability to find out what the other side is doing so we can try to stop it by infiltrating their organization, by compromising it in one way or another. That is critical to fighting the war on terror.

Intelligence is our main method of dealing with this war. If we keep compromising our capability because people feel compelled to breach our national security, to violate the law because they want to bring information out that will embarrass the administration or that will affect the PATRIOT Act--the article, remember, according to some was written a year before the New York Times published it on the day we had the vote on the PATRIOT Act. Perhaps coincidence. But unless we are going to start objecting to that kind of behavior, it will continue. Then we will wonder why our intelligence agencies and law enforcement agencies were not better able to protect us when there is another attack.

I urge my colleagues, as well as the American people, to consider the losses we will suffer as a result of this kind of behavior and to try to bring to account those who engage in this kind of behavior, not to condone it.

We in the Congress will do everything we can to make sure all authorities are used legally. The President can be assured of that. But in the meantime, it seems to me we ought to feel a little bit more secure that we have great capabilities collecting intelligence, and we need the ability to do that in order to protect the American people.

I hope we will have another opportunity to take a vote on the PATRIOT Act, that we can extend it, we can reauthorize it so it can again be used to protect the American people from this evil of terrorism that we face.

Mr. President, I compliment the Senator from Pennsylvania on a job exceedingly well done in trying to find a way that we can reauthorize the PATRIOT Act, with very emotional feelings on all sides of the issue and working through very difficult compromises, especially after the conference committee in which it would appear to me--and I think even our colleagues who oppose the bill would agree--the end result is probably about 80 percent Senate product and about 20 percent House product.

This is a defining moment. There are no more compromises to be made, no more extensions of time. The bill is what it is now, and it is very unfair and unrealistic to expect that either the House of Representatives would concede to the Senate position 100 percent or that the President would do so after what he has now said. As a result, we are going to have an opportunity to vote yes or no.

One of my colleagues said this is not a partisan issue. If 90-plus percent of the Democrats vote against cloture and 90-plus percent of the Republicans vote for cloture, it is hard to argue that is not partisan. It is true that this should not be a partisan issue, but having worked through it to the extent we have, and having had the very strong support in the House of Representatives with over I think it was 44 Democrats in the House of Representatives voting for reauthorization of the PATRIOT Act, it seems to me that the Senate would do well to also try to act here in a more bipartisan way and not to have a partisan vote.

We need to reauthorize the PATRIOT Act. It is the tool for our law enforcement and intelligence agencies to help protect us from terrorists. Just as we send our men and women into battle with good training and equipment, we have to do the same thing with law enforcement and our intelligence agencies. If we deny them the key tool, the PATRIOT Act, they are not going to be able to do their job to protect us. And there is no more time to stretch this out with maybes or let's negotiate more, and so on. This act will expire on December 31. My colleagues either vote yes to reauthorize it or no, not to reauthorize it. There is no middle ground.

I will say this as directly and seriously as I can. I doubt there is anyone in this Chamber today who would argue with the proposition that we needed to tear down the wall between the law enforcement and intelligence agencies. The PATRIOT Act does that. The wall goes right back up again on January 1. Is that what we want? God help us if there is some kind of terrorist attack when we are not protected by the PATRIOT Act and the act could have enabled our law enforcement or our intelligence people to help protect us. We will have to answer for that if we don't vote to extend the PATRIOT Act.

I implore my colleagues to put partisanship aside, to consider the fact that not everybody can get 100 percent of what they want, to recognize that the House of Representatives has made a tremendous concession to us, whether you talk about the period of time, the section 215 concessions, and, of course, the sunset concessions.

I found it very difficult myself to sign the conference report because, frankly, we had made it so difficult for law enforcement to do its job with some of the compromises that were made, but they were made in order to achieve a consensus on which we could vote. Now we find that consensus in jeopardy.

Mr. President, I urge my colleagues to think very carefully about what they are about to do. If they vote against cloture, they are voting to allow the PATRIOT Act to expire. We will not have that tool available for law enforcement and intelligence agencies to protect us from terrorists. Is that what you want? I daresay the American people will hold us accountable if anything happens and we are not able to reauthorize the PATRIOT Act.

Mr. President, I thank the chairman for his remarks. We know of two stories that the 9/11 Commission wrote following the investigation into what went wrong. What they found was that there was not only the wall that separated our intelligence and law enforcement officials from being able to speak to each other, but other problems with the law that we corrected with the PATRIOT Act. Had the PATRIOT Act been in effect prior to 9/11, it is possible that not all of or even part of 9/11 would have happened.

There are two specific stories. One related to Zacarias Moussaoui, the other related to two fellows by the name of Hazmi and al Mihdhar. These were the fellows who used library computers to verify their airline reservations on 9/11. We knew that they were connected--well, one agency with the Government knew that they were connected with the al-Qaida. The other agency knew that they had tried to come into the United States and decided that maybe we should try to find them but had no idea how important it was to try to find them. And had we been able to be on their tail at this time and find out that they were verifying airline reservations on September 11, knowing that they were connected to al-Qaida and were up to no good, history might well be different than it is today.

How on Earth we could allow the corrections in the law that we put in place as a result of our investigation to lapse is beyond me. The terrorists have not stopped their efforts to attack us, and largely we have been free from attack because of things such as the PATRIOT Act.

So the chairman is exactly right. We corrected the errors that were brought to our attention that prevented us from doing what needed to be done before September 11. That is what this PATRIOT Act conference report is all about. The act needs to be reauthorized. Our people need that tool to protect us. Why would we allow it to lapse, especially on a partisan basis? We need to think very carefully about what we are about to do. I hope for the sake of the American people and our security that the Senate will act responsibly and ensure that the PATRIOT Act will continue to protect us and not allow it to lapse.

Mr. President, I rise today to comment on the Senate's passage of H.R. 3402, the Violence Against Women and Department of Justice Reauthorization Act of 2005. My comments are directed at Title X of the bill, the ``DNA Fingerprint Act of 2005.'' This provision is nearly identical to S. 1606, a bill of the same name that Senator Cornyn and I introduced earlier this year. The DNA Fingerprint Act was added to the Senate version of VAWA reauthorization, S. 1197, in the Senate Judiciary Committee on a Kyl/Cornyn amendment that was accepted by voice vote. I am pleased to see that this provision has been maintained in the final bill.

The DNA Fingerprint Act will allow State and Federal law enforcement to catch rapists, murderers, and other violent criminals whom it otherwise would be impossible to identify and arrest. The principal provisions of the bill make it easier to include and keep the DNA profiles of criminal arrestees in the National DNA Index System, where that profile can be compared to crime-scene evidence. By removing current barriers to maintaining data from criminal arrestees, the Act will allow the creation of a comprehensive, robust database that will make it possible to catch serial rapists and murderers before they commit more crimes.

The impact that this act will have on preventing rape and other violent crimes is not merely speculative. We know from real life examples that an all-arrestee database can prevent many future offenses. In March of this year, the City of Chicago produced a case study of eight serial killers in that city who would have been caught after their first offense--rather than after their fourth or tenth--if an all-arrestee database had been in place. This study is included in the congressional record at the conclusion of my introduction of S. 1606, at 151 Cong. Rec. S9529-9531 (July 29, 2005).

The first example that the Chicago study cites involves serial rapist and murderer Andre Crawford. In March 1993, Crawford was arrested for felony theft. Under the DNA Fingerprint Act, the State of Illinois would have been able to take a DNA sample from Crawford at that time and upload and keep that sample in NDIS, the national DNA database. But at that time--and until this bill may be enacted--Federal law makes it difficult to upload an arrestee's profiles to NDIS, and bars States from keeping that profile in NDIS if the arrestee is not later convicted of a criminal offense. As a result, Crawford's DNA profile was not collected and it was not added to NDIS. And as a result, when Crawford murdered a 37-year-old woman on September 21, 1993, although DNA evidence was recovered from the crime scene, Crawford could not be identified as the perpetrator. And as a result, Crawford went on to commit many more rapes and murders.

On December 21, 1994, a 24-year-old woman was found murdered in an abandoned building on the 800 block of West 50th place in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the September 1993 murder, and this December 1994 murder could have been prevented.

On April 3, 1995, a 36-year-old woman was found murdered in an abandoned house on the 5000 block of South Carpenter Street in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the two earlier murders that he had committed, and this April 1995 murder could have been prevented.

On July 23, 1997, a 27-year-old woman was found murdered in a closet of an abandoned house on the 900 block of West 51st Street in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the three earlier murders that he had committed, and this July 1997 murder could have been prevented.

On December 27, 1997, a 42-year-old woman was raped in Chicago. As she walked down the street, a man approached her from behind, put a knife to her head, dragged her into an abandoned building on the 5100 block of South Peoria Street, and beat and raped her. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the four earlier murders that he had committed, and this December 1997 rape could have been prevented.

In June 1998, a 31-year-old woman was found murdered in an abandoned building on the 5000 block of South May Street in Chicago. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the four earlier murders and one rape that he had committed, and this June 1998 murder could have been prevented.

On August 13, 1998, a 44-year-old woman was found murdered in an abandoned house on the 900 block of West 52nd Street. Her clothes were found in the alley. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the five earlier murders and one rape that he had committed, and this August 1998 murder could have been prevented.

Also on August 13, 1998, a 32-year-old woman was found murdered in the attic of a house on the 5200 block of South Marshfield. Her body was decomposed, but DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the six earlier murders and one rape that he had committed, and this additional murder could have been prevented.

On December 8, 1998, a 35-year-old woman was found murdered in a building on the 1200 block of West 52nd Street. She had rope marks around her neck and injuries to her face. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the seven earlier murders and one rape that he had committed, and this December 1998 murder could have been prevented.

On February 2, 1999, a 35-year-old woman was found murdered on the 1300 block of West 51st Street. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the eight earlier murders and one rape that he had committed, and this February 1999 murder could have been prevented.

On April 21, 1999, a 44-year-old woman was found murdered in the upstairs of an abandoned house on the 5000 block of South Justine Street. DNA evidence was recovered. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the nine earlier murders and one rape that he had committed, and this April 1999 murder could have been prevented.

And on June 20, 1999, a 41-year-old woman was found murdered in the attic of an abandoned building on the 1500 block of West 51st Street. DNA evidence was recovered from blood on a

nearby wall, indicating a struggle. That DNA evidence identifies Crawford as the perpetrator. If the DNA Fingerprint Act had been law, and Crawford's profile had been collected after his March 1993 arrest, he would have been identified as the perpetrator of the ten earlier murders and one rape that he had committed, and this additional murder could have been prevented.

As the City of Chicago case study concludes:

In January 2000, Andre Crawford was charged with 11 murders

and 1 Aggravated Criminal Sexual Assault. If his DNA sample

had been taken on March 6, 1993, the subsequent 10 murders

and 1 rape would not have happened.

The City of Chicago study goes on to discuss the cases of 7 other serial rapists and murders from that city. Each of these criminals had a prior arrest that could have been a basis for a DNA collection but had no prior conviction. Collectively, together with Andre Crawford, these 8 serial rapists and killers represent 22 murders and 30 rapes that could have been prevented had an all-arrestee database been in place.

The DNA Fingerprint Act eliminates current Federal statutory restrictions that prevent states from adding and keeping arrestee profiles in NDIS. In effect, the Act would make it possible to build a comprehensive, robust national all-arrestee DNA database.

Here is how the DNA Fingerprint Act works. First, the Act eliminates current Federal statutory restrictions that prevent an arrestee's profile from being included in NDIS at the same time that fingerprints are taken and added to the national database. Under current law, as soon as someone is arrested, fingerprints can be taken as part of the booking procedure and uploaded to the national database. But DNA cannot be uploaded until the arrestee is charged in an indictment or information, which can take weeks. Allowing local authorities to collect and upload DNA at the same time as fingerprints--as part of a unified procedure--establishes a clear and straightforward process, making it easier and thus more likely that states will move to an all- arrestee database.

Second, current law places the burden on the State to remove an arrestee DNA sample from NDIS if the arrestee later is acquitted or charges are dismissed. The U.S. Justice Department has criticized this as an unwieldy requirement to impose on State labs--it effectively requires lab administrators to track the progress of individual criminal cases. Under the DNA Fingerprint Act, an arrestee will be required to take the initiative to have his profile removed form NDIS if he does not want it compared to future crime-scene evidence. The arrestee will be required to file a certified copy of a final court order establishing that all indexable charges have been dismissed, have resulted in acquittal, or that no charges were filed within the applicable time period. This is the same system that some States use if an arrestee wants to have an arrest struck from his record. And it is more restrictive of law enforcement than the rule for fingerprints-- there is no expungement of fingerprints from the national database, even if the arrestee is acquitted or charges are dismissed.

The bureaucratic burden imposed by the current system discourages States from creating and maintaining comprehensive, all-arrestee DNA databases. It also effectively precludes the creation of a genuine national all-arrestee database; only convicts' DNA profiles can be kept in the national database over the long term.

Some critics have complained that this expungement provisions in the DNA Fingerprint Act do not require expungement for State offenses that have no statute of limitations--i.e., for offenses for which the ``applicable time period'' does not expire. Others have complained that some States may not make certified court orders available for all of the scenarios under which expungement is contemplated under this bill. The answer to all of these complaints is that these are questions for the States to resolve. If a state chooses to abolish its statute of limitations for murder, rape, or other crimes, that is the State's decision to make. Certainly a person arrested for a serious crime in a State with no statute of limitation for the offense would be more significantly burdened the fact that he may be subject to further arrest and prosecution at any time than by the fact that his DNA is in the national database and may identify him if he commits a crime. Similarly, it is up to the States to decide when certified court orders should be made available to memorialize particular events. All that the DNA Fingerprint Act requires is that if the State does make such an order available to an arrestee--for example, for purposes of having an arrest struck from his record--then the arrestee could also use that order to have his DNA profile removed from NDIS.

Third, the DNA Fingerprint Act would allow expanded use of Federal DNA grants. Current law only allows these grants to be used to build databases of convicted felons. The DNA Fingerprint Act permits these grants to be used to analyze and database any DNA sample whose collection is permitted by State or local law.

Fourth, the DNA Fingerprint Act allows the Federal Government to take and keep DNA samples from Federal arrestees and from non-U.S. persons who are detained under Federal authority. (A ``United States person'' is a citizen of the United States or an alien lawfully admitted for permanent residence. See 50 U.S.C. 1801(i).) The act gives the Attorney General the authority to issue regulations requiring the collection of such DNA profiles--including requiring other Federal agencies to collect the profiles. As the National Immigration Law Center noted in its October commentary on this section of the Act, ``[u]nder this provision, the attorney general could authorize the Dept. of Homeland Security and its immigration agencies to collect DNA samples from immigrants who are arrested and `non-United States persons' who are detained under the authority of the United States.'' And as the NILC's commentary also notes, the word ```detained' covers a wide spectrum of circumstances. The dictionary definition of `detained' is to keep from proceeding or to keep in custody or temporary confinement.''

Finally, the act tolls the statute of limitations for Federal sex offenses. Current law generally tolls the statute of limitations for felony cases in which the perpetrator is implicated in the offense through DNA testing. The one exception to this tolling is the sexual- abuse offenses in chapter 109A of title 18. When Congress adopted general tolling, it left out chapter 109A, apparently because those crimes already are subject to the use of ``John Doe'' indictments to charge unidentified perpetrators. The Justice Department has made clear, however, that John Doe indictments are ``not an adequate substitute for the applicability of [tolling].'' The Department has criticized the exception in current law as ``work[ing] against the effective prosecution of rapes and other serious sexual assaults under chapter 109A,'' noting that it makes ``the statute of limitation rules for such offenses more restrictive that those for all other Federal offenses in cases involving DNA identification.'' The DNA Fingerprint Act corrects this anomaly by allowing tolling for chapter 109A offenses.

Further evidence of the potential effectiveness of a comprehensive, robust DNA database is available from the recent experience of the United Kingdom. The British have taken the lead in using DNA to solve crimes, creating a database that now includes 2,000,000 profiles. Their database has now reached the critical mass where it is big enough to serve as a highly effective tool for solving crimes. In the U.K., DNA from crime scenes produces a match to the DNA database in 40 percent of all cases. This amounted to 58,176 cold hits in the United Kingdom 2001. (See generally ``The Application of DNA Technology in England and Wales,'' a study commissioned by the National Institute of Justice.) A broad DNA database works. The same tool should be made available in the United States.

Some critics of DNA databasing argue that a comprehensive database would violate criminal suspects' privacy rights. This is simply untrue. The sample of DNA that is kept in NDIS is what is called ``junk DNA''-- it is impossible to determine anything medically sensitive from this DNA. For example, this DNA does not allow the tester to determine if the donor is susceptible to particular diseases. The

Justice Department addressed this issue in its statement of views on S. 1700, a DNA bill that was introduced in the 108th Congress (See Letter of William Moschella, Assistant Attorney General, to the Honorable Orrin Hatch, April 28, 2004):

[T]here [are no] legitimate privacy concerns that require

the retention or expansion of these [burdensome expungement

provisions]. The DNA identification system is already subject

to strict privacy rules, which generally limit the use of DNA

samples and DNA profiles in the system to law enforcement

identification purposes. See 42 U.S.C. 14132(b)-(c).

Moreover, the DNA profiles that are maintained in the

national index relate to 13 DNA sites that do not control any

traits or characteristics of individuals. Hence, the

databased information cannot be used to discern, for example,

anything about an individual's genetic illnesses, disorders,

or dispositions. Rather, by design, the information the

system retains in the databased DNA profiles is the

equivalent of a ``genetic fingerprint'' that uniquely

identifies an individual, but does not disclose other facts

about him.

In its September 29 Statement of Views on S. 1197, this year's Senate VAWA bill, the Justice Department commented favorably on the inclusion of the DNA Fingerprint Act in that bill. The Department noted:

Title X of the bill contains provisions we strongly support

that will strengthen the ability of the Nation's justice

systems to identify and prosecute sexually violent offenders

and other criminals through the use of the DNA technology.

These reforms have generally been proposed or endorsed by the

Department of Justice in previous communications to Congress.

See Letter from Assistant Attorney General William E.

Moschella to the Honorable Orrin G. Hatch concerning H.R.

3214, at 3-7 (April 28, 2004); Letter from Assistant Attorney

General William E. Moschella to the Honorable Orrin G. Hatch

concerning S. 1700, at 5-6 (April 28, 2004).

Section 1002 would remove unjustified restrictions on the

DNA profiles that can be included in the National DNA Index

System (``NDIS''), including elimination of language that

generally excludes from NDIS the DNA profiles of arrestees.

Section 1003 is a parallel amendment to allow the use of DNA

backlog elimination funding to analyze DNA samples collected

under applicable legal authority, not limited (as currently

is the case) to DNA samples collected from convicted

offenders. Section 1004 would authorize the Attorney General

to extend DNA sample collection to Federal arrestees and

detainees. A number of States (including California,

Virginia, Texas, and Louisiana) already have authorized

arrestee DNA sample collection under their laws. Section 1004

would create legal authority to extend this beneficial reform

to the Federal jurisdiction. Section 1005 would strike

language in 18 U.S.C. section 3297 that currently makes that

provision's statute of limitations tolling rule for cases

involving DNA identification uniquely inapplicable to sexual

abuse offenses under chapter 109A of the Federal criminal

code.

In one respect, the amendments in section 1002, which are

absolutely critical to the future development and

effectiveness of the DNA identification system in the United

States, fall short of our recommendations. They moderate

existing expungement provisions requiring the removal of DNA

profiles from NDIS in certain circumstances, but do not

completely repeal the expungement provisions of 42 U.S.C.

14132(d), as we have recommended. Paragraph (2) of section

1002 should be amended so that it simply repeals subsection

(d) of 42 U.S.C. 14132. We have previously observed:

``States usually do not expunge fingerprint records . . .

if the defendant is not convicted, or if the conviction is

ultimately overturned, nor are they required to remove

fingerprint records in such cases from the national . . .

criminal history records systems. There is no reason to have

a contrary Federal policy mandating expungement for DNA

information. If the person whose DNA it is does not commit

other crimes, then the information simply remains in a secure

database and there is no adverse effect on his life. But if

he commits a murder, rape, or other serious crime, and DNA

matching can identify him as the perpetrator, then it is good

that the information was retained.''

Letter from Assistant Attorney General William E. Moschella

to the Honorable Orrin G. Hatch concerning H.R. 3214, supra,

at 5; see 150 Cong. Rec. S10914-15 (Oct. 9, 2004) (remarks of

Senator Cornyn).

We note with approval that the Committee has made the

salutary reforms of title X that expand the collection and

indexing of DNA samples and information generally applicable,

and has not confined the application of these reforms to

cases involving violent felonies or some other limited class

of offenses. The experience with DNA identification over the

past fifteen years has provided overwhelming evidence that

the efficacy of the DNA identification system in solving

serious crimes depends upon casting a broad DNA sample

collection net to produce well-populated DNA databases. For

example, the DNA profile which solves a rape through database

matching very frequently was not collected from the

perpetrator based upon his prior conviction for a violent

crime, but rather based upon his commission of some property

offense that was not intrinsically violent. As a result of

this experience, a great majority of the States, as well as

the Federal jurisdiction, have adopted authorizations in

recent years to collect DNA samples from all convicted

felons--and in some cases additional misdemeanant categories

as well--without limitation to violent offenses. See, e.g.,

42 U.S.C. 14135a(d)(l). The principle is equally applicable

to the collection of DNA samples from non-convicts, such as

arrestees. By rejecting any limitation of the proposed

reforms to cases involving violent felonies or other limited

classes, the Committee has soundly maximized their value in

solving rapes, murders, and other serious crimes.

(Letter of William Moschella, Assistant Attorney General, to the Honorable Arlen Specter, September 29, 2005.)

I note with pride that in addition to receiving the strong support of the Justice Department, the DNA Fingerprint Act is endorsed by the Rape, Abuse, and Incest National Network, Debbie and Rob Smith, and the California District Attorneys Association. I include in the Record at the conclusion of my remarks letters from these individuals and organizations supporting the DNA Fingerprint Act.

I would also like to comment on an issue that I chose not to address in the DNA Fingerprint Act but that I may need to address in future legislation. This matter concerns the efficient use of the limited Federal dollars available for offender DNA analysis. Some State crime laboratories recently have been required to remove criminal offender profiles from the national DNA database system because of Federal regulations that require a 100 percent technical review of offender DNA samples tested by private DNA laboratories, rather than review of a random sampling. Given that private laboratories must meet the same accreditation and quality assurance standards as public laboratories in order to test samples for CODIS, and given that these quality assurance standards include the same reviews of DNA analysis reports which are required of public laboratories, I question why the additional 100 percent review is required.

Moreover, offender DNA samples are not themselves considered evidence. After matched to an unsolved case on CODIS, regulations require that the offender sample be reanalyzed to confirm the match and then a new sample is collected from the suspect and tested anew to reconfirm the match. DNA cases with named suspects tested by accredited private laboratories are routinely brought directly to court without the duplicated public laboratory review requirement. If these private laboratories can be trusted to perform quality analysis for the thousands of DNA cases that have resulted in conviction for over 15 years, then it stands to reason that they could also be trusted with database samples which will be reanalyzed twice after a match is made.

While I understand the concern that potential incorrect results from an offender's sample could lead to a missed opportunity to solve a crime, I also am concerned about the potential for additional crimes to occur while an offender's profile is queued in a laboratory review backlog. It has been brought to my attention that there are other forensic disciplines, such as drug chemistry, in which laboratories use statistically based formulas to achieve a high degree of certainty without requiring a 100 percent review of all samples. I also am aware that the National Institute of Justice already requires that outsourced DNA samples include a requirement for five percent of a given batch to be blind samples.

This duplicated requirement for review of samples tested at private laboratories appears to be an inefficient use of federal funds and, more importantly, delays justice for victims seeking a name for their attacker. Before--and ideally, instead of--my introducing legislation to address what appears to be a non-statutory problem, I would suggest that the Attorney General and the FBI reevaluate the necessity for this regulation. The Justice Department also ought to consider the possibility of permitting accredited private laboratories limited but direct ability to upload data to the national DNA Index System, similar to the permission granted to private laboratories in the United Kingdom's DNA database system.

Finally, I would like to thank those who have made it possible to enact the

DNA Fingerprint Act as part of this year's VAWA reauthorization bill. This includes my colleague, Senator Cornyn, with whom I introduced S. 1606 and who offered the Kyl amendment on my behalf at the Judiciary Committee's executive meeting; Chip Roy and Reed O'Connor of Senator Cornyn's staff; and Lisa Owings and Brett Tolman of Chairman Specter's staff. It is my understanding that absent some aggressive staffing by Mr. Tolman at various stages of the legislative process, the effort to have the DNA Fingerprint Act enacted into law as part of VAWA this year would not have succeeded. His contribution is duly noted and appreciated.

I ask unanimous consent that the following letters be printed in the Record.

Mr. President, I do want to agree with one thing my colleague from Colorado said just a moment ago. He said the fundamental freedoms of Americans are at stake. I agree with that. But they are not threatened by the U.S. Government. They are threatened by foreign terrorists who struck us on September 11 and who have continued to threaten us since that time.

There was much criticism of our Government as a result of our failure to prevent that attack on September 11, particularly when the 9/11 Commission reported that there were some things that could have been done that just might at least theoretically have prevented that attack. We quickly acted in the Congress to put in place the legal mechanisms to enable our law enforcement and intelligence people to begin protecting the American people. What we found was that there were a lot of loopholes in our laws that needed to be filled in order to give our law enforcement and intelligence people the weapons, the tools, the support that they needed to protect us.

We did that with the PATRIOT Act. However, because of concerns that possibly some of these authorities could be abused, we said we are going to sunset them so that we have to come back and reconsider what we did, and that is what we are all about here now.

As a result of significant debate in this body and in the other body, we each passed different versions of a reauthorization of the PATRIOT Act, and since then accommodated those differences in what is called a conference committee. We are now considering that compromise between the House and Senate versions in a compromised conference committee report. Those of us who helped to write the original PATRIOT Act and were very anxious to get these authorities in place believe that in some respects we have gone too far. We have leaned over too far backward to those who are so afraid that somehow somebody's freedom might be stepped on in this country, that they have not enabled us to fight the terrorists that are the real enemy. They have not given us the tools we need. But in order to get the conference committee resolved and get the bill on the floor here, we agreed to sign the report and have this debate.

Now we find there are people on the other side who insist on having it all

their way. Every single thing they want has to occur or else they are going to filibuster the bill. What does that mean? It means they are going to talk it to death, refuse to allow us to have a final vote on it, with the result that the PATRIOT Act is gone on December 31.

They say: We will agree to extend it for a little while. That is no answer. We have a process. We have gone through the process. It has been very difficult. It has been long. It has been hard. We have gotten a product that is the result of compromise. That is the way we work in the Senate and in the House and in this country, and that compromise has to be voted on, yes or no. If you don't like it, then vote no.

Here is what I suggest. We are at war. We have to be responsible and serious about what we do. I will say it right now, if the filibuster results in this act ceasing to exist, if there is no more PATRIOT Act next year and an attack occurs in this country and it could have been prevented by the provisions of the PATRIOT Act, then everyone who votes to support a filibuster will have to answer for that attack.

There were some things we could have done in the past. I would like to refer to what they are because, from the 9/11 Commission, we know that some of the things we put in the PATRIOT Act might prevent an attack in the future, some of the very things that are being criticized by those who are suggesting they might filibuster. Let me give just a little bit of the detail.

We now know that one of the things that stood in the way of a successful investigation was the previous law, gaps in our terrorism law that prevented the FBI from doing certain things--in particular, to exploit leads that related to al-Qaida.

We came tantalizingly close to substantially disrupting or even stopping this terrorist plot. The investigation to which I refer involved a person by the name of Khalid Al Mihdhar. He was one of the eventual suicide hijackers of American Airlines flight 77, which crashed into the Pentagon, killing 58 passengers and crew and 125 people on the ground. An account of the pre-September 11 investigation of Mihdhar is provided in the 9/11 Commission's staff statement No. 10. Here is what that statement says:

During the summer of 2001 a CIA agent asked an FBI official

* * * to review all of the materials from an Al Qaeda meeting

in Kuala Lumpur, Malaysia one more time. * * * The FBI

official began her work on July 24, of 2001. That day she

found the cable reporting that Khalid Al Mihdhar had a visa

to the United States. A week later she found the cable

reporting that Mihdhar's visa application--what was later

discovered to be his first application--listed New York as

his destination. * * * The FBI official grasped the

significance of this information.

The FBI official and an FBI analyst working the case

promptly met with an INS representative at FBI Headquarters.

On August 22 INS told them that Mihdhar had entered the

United States on January 15, 2000, and again on July 4, 2001.

* * * The FBI agents decided that if Mihdhar was in the

United States, he should be found.

At this point, the investigation of Khalid Al Mihdhar came up against the infamous legal ``wall'' that separated criminal and intelligence investigations at the time. That is a wall, by the way, which will be re-erected if this filibuster succeeds and the PATRIOT Act falls. That wall, everyone agrees, had to come down. The Joint Inquiry Report of the House and Senate Intelligence Committees describes what happened next:

Even in late August 2001, when the CIA told the FBI, State,

INS, and Customs that Khalid al-Mihdhar, Nawaf al-Hazmi, and

two other ``Bin Laden-related individuals'' were in the

United States, FBI Headquarters refused to accede to the New

York field office recommendation that a criminal

investigation be opened, which might allow greater resources

to be dedicated to the search for the future hijackers. * * *

FBI attorneys took the position that criminal investigators

``cannot'' be involved and that criminal information

discovered in the intelligence case would be ``passed over

the wall'' according to proper procedures. An agent in the

FBI's New York field office responded by e-mail, saying:

``Whatever has happened to this, someday someone will die

and, wall or not, the public will not understand why we were

not more effective in throwing every resource we had at

certain problems.''

You would think we would have learned the lesson of 9/11. If the filibuster succeeds, those who vote for the filibuster will be voting to allow this wall to be reerected. The very wall that we tore down with the PATRIOT Act so the FBI and CIA could talk to each other, the very wall that might have, had we torn it down before 9/11--that wall might have prevented us from discovering two of the key people involved in 9/11, and had we stopped them from getting on the airplane, we might have stopped at least one of the attacks of 9/11.

Whatever has happened to this, someday, someone will die,

and wall or not, the public will not understand why we were

not more effective in throwing every resource we had at

certain problems.

Unfortunately, this grim prediction turned out to be true; almost 3,000 people died.

We then acted to make sure it would never happen again. Now there are people threatening to filibuster the PATRIOT Act, which will go out of existence on December 31 if the filibuster succeeds, and people will wonder how it is that this wall was resurrected after the experience we had.

Here is what the 9/11 Commission said about the effect of the wall between the criminal and intelligence investigations with respect to the investigation of Khalid al Mihdhar:

Many witnesses have suggested that even if Mihdhar had been

found, there was nothing the agents could have done except to

follow him onto the planes. We believe this is incorrect.

Both Hazmi and Mihdhar have been held for immigration

violations or as material witnesses in the Cole bombing case.

Investigation or interrogation of these individuals, and

their travel and financial activities, also may have yielded

evidence of connections to other participants in the 9/11

plot. In any case, the opportunity did not arise.

As we know, Mr. President, the PATRIOT Act dismantled this legal wall between intelligence and criminal investigations. It was enacted too late to prevent 9/11, but it will prevent future acts of terrorism unless we allow it to expire.

I would like to talk about another key investigation prior to September 11. I will probably have to get just about 5 more minutes of time. Before I do, let me make just this one point about those who say we do not have to let it expire, we could just extend it for another 3 months or so.

Why do they say that? Because they think they can get some more concessions. The House of Representatives is done making concessions, and I agree with them. I would say the concessions already made could go too far, could hamper our law enforcement capability of catching terrorists or infiltrating their organizations or finding evidence to implicate them in crimes. Nonetheless, that time is passed. There is no more conference committee to go back to. We have reached all of the compromises, and not everybody can get everything they want. I certainly have not gotten everything I want. But I understand that at a certain point, the people of the United States have to pull together and act in a unified way to ensure that we have a law in place that will help us fight this war on terrorism.

I think it is extraordinarily selfish to say we have to have our way or no way, let the Act expire. Oh, we will maybe let it go for another 3 months. What kind of uncertainty does that create? Three months, using one set of procedures and not knowing what the law is going to be.

I ask the Senator from Pennsylvania how much more time he can yield me?

I will not ask for any more time, then, except to say at a later time I will tell the story of Zacarias Moussaoui and how the PATRIOT Act helps to resolve the situation we couldn't resolve with Zacarias Moussaoui, either, and had we done that, he may not have been involved in the 9/11 activities.

I ask unanimous consent to consume such time as I may take.

Mr. President, I am going to speak in a moment about the PATRIOT Act, but before I do, I want to respond to a couple of comments that were made by the Senator from Massachusetts.

I served with Congressman Murtha when I was in the House of Representatives, and there is no greater patriot in the United States than Congressman Murtha. In that, the Senator from Massachusetts and I agree. I disagree with Congressman Murtha's opinions, but that is a matter of debate and that is one of the reasons we have the kind of open society that we do.

I do not think anyone is trying to crush debate or dissent or prevent questions from being asked. But it is a fact that when the President of the United States is accused of deliberate manipulation of intelligence to bring us into war--some have even said lied in order to bring us into war--that deserves response. That is part of a healthy debate.

When the President spoke in response, I think he was entitled to be listened to and not ridiculed and not condemned for criticizing those who disagreed with him. Neither side need back away from making their arguments and arguing that the other side is wrong. But of course no one should be questioning anyone else's patriotism. It is assumed anyone who serves this Government, and certainly anyone who has put on the uniform of this Government, is a patriot. In the case of Congressman Murtha, I would be the first to assert that fact.

I think there are two critical facts with respect to this dispute. The first set of facts is that our intelligence, and that of virtually every other nation in the world, believed that Saddam Hussein was a threat to the world and had weapons of mass destruction and in some cases was developing capability for additional weapons of mass destruction, such as nuclear weapons. Some of that intelligence turned out not to be correct. But it does not mean that the people who debated the issues were liars or deliberately misrepresenting the facts. I daresay, if you took comments I made on the floor of the Senate and comments the Senator from Massachusetts made on the floor of the Senate, they would align pretty closely. They were pretty similar because they were based on the same intelligence. The same thing was said by other Democrats and Republicans, by people in the administration, by people in the former administration. I do not think it is appropriate to assign deliberate motives to mislead to any of those people.

I myself believe that the information was not correct with respect to the weapons of mass destruction but that the people who were giving it to us honestly believed it was correct. So I don't even think the people in the CIA were deliberately misleading anyone, though they turned out to be wrong. Can't we agree that people make mistakes, especially with respect to that murky area of intelligence where nothing is ever black and white, where everyone is always gathering bits and pieces of information and trying to construct a jigsaw puzzle out of it when a lot of pieces are missing and where the enemy is deliberately trying to deceive you? It is very difficult business. While I am somewhat critical, as a member of the Intelligence Committee, of the people who were engaged in the activity at the time, I don't question their motives either.

The other fact that I think is true is that it would be wrong for us to leave Iraq now. This is where I would disagree with Congressman Murtha. I believe the consequences of leaving or setting up a timetable to leave soon, before the job is done, would not only be absolutely devastating for the people in Iraq who have been trying to set up their own government but would also set us back in the war against these terrorists, these evildoers, these radical Islamists who are watching very carefully what we do in Iraq. When you remember what Saddam Hussein said about the weak horse and the strong horse, you know how important it is for the United States to maintain a firm, strong position with respect to completing the job in Iraq.

To the extent that there is a suggestion that we will back out if they keep enough pressure on us, it does play into their hands because they simply play the waiting game in order to wait us out until they can move in and do more evil deeds. That is where I think the debate comes down. It is a legitimate debate to have, but I think the President is on the right side of that debate. We have to finish the job before we withdraw.

I am happy to.

Mr. President, I was very happy to have the Senator from Massachusetts take a long time to make a lot of points, asking an important question. Therefore, I am happy to engage in what amounts to a debate on the issue. I would be delighted to comment on the specifics that he points out.

I served on the Intelligence Committee for 8 years during this period of time and have a fair degree of information about it. I need to reflect a little bit carefully about what one can now say because, after a while, you realize, when you are on the committee, it is better not to say a lot because it might be one of the things you should not be talking about. But I think I should speak to each of these items.

The last one first. No, I don't agree that being in error is the same as misleading. I don't think that the people in the intelligence agencies were misleading us. They were, in some instances, in error. Frequently, they expressed their views with caveats and degrees of certainty that, frankly, are not reflected in the public debate.

Let me make my point here. They have a very careful way of expressing their views. In the public debate, I have noted the political people are not nearly as nuanced and careful in expressing these views as the member of the intelligence community is.

Second, with respect to that, ordinarily the way that views were expressed to us, and specifically in this case, they represented the majority opinion or the consensus within the intelligence community. Where there were significant questions or differences of opinion within the intelligence community, those were noted and sometimes with respect to some issues, there were divisions. Without getting into a lot of detail, there has been a lot of talk about another issue that the Senator did not raise, the so-called aluminum tubes. Without getting into a big debate about it, you had the majority of the intelligence community believing that those were for one purpose related to production of nuclear materials. And you had a couple of other agencies that had expertise in the area saying they didn't think so.

I am not sure that anyone has ever concluded which were actually correct, or not, but a lot of information has been thrown out that clearly the majority opinion was wrong. I don't know that one can say that.

So I think we have to be careful. There are frequently, in intelligence estimates, little caveats: We are not sure how good this particular source is; we are not sure about this particular element.

But usually a consensus is reached. That consensus is what was briefed to us and that is what we were relying on. With respect to the four specific points--with respect to the issue of yellow cake coming from Niger, it was a fact that the intelligence the United States had was not nearly as conclusive as the intelligence from Great Britain, and therefore the President was advised--not the President himself directly but his speechwriters were advised--not to suggest that our intelligence confirmed the attempts of Iraq to acquire this nuclear material from Niger but rather to refer to a different intelligence service which, in fact, had concluded that the attempt had been made. That was the British service and that was the reference in the speech. The British service still stands by its position.

With respect to the bioweapons, there was very good evidence to suggest, prior to the war, that Saddam Hussein not only had a viable bioterrorism program but that he had even mobilized--in one respect, mobilized that program.

I am not certain we can say, from the Senate floor, how we have finally evaluated the intelligence with respect to that. I think it would be probably difficult for any Senator to discuss the issue in great length. I would be willing to acknowledge that, certainly, questions have been raised about whether it turns out that there were mobile units devoted to creation of bioweapons.

Third, with respect to the intelligence that Iraq agents had actually instructed terrorists in bomb making and poison making, that information was very clear. It was issued by CIA Director George Tenet. It was public information, so that can be discussed on the floor of the Senate, and I am aware of nothing that draws any question about that particular evidence. I do not recall whether it specifically related to al-Qaida or terrorists or al-Qaida-connected terrorists. I probably should not speak to that issue because I am not certain how much is classified. But it is absolutely certain in public testimony, and in a letter George Tenet specifically sent to the Congress he discussed the issue of Iraq training terrorist bomb makers in the art of chemical weapon-making.

Finally, in regard to this alleged meeting that never actually occurred, if it is the meeting in Czechoslovakia that the Senator was referring to, that is a matter of dispute. I don't think it has ever been resolved one way or the other.

The point of all of this is it is one thing to say the intelligence was inconclusive and in some cases that there were disputes in the intelligence community and in some cases it was not accurate. It is quite another to allege that the people who used the intelligence were misleading other people.

Certainly, I was not deliberately misleading anyone, and I am certain the Senator from Massachusetts was not deliberately misleading anyone when we said roughly the same thing based upon the same intelligence that suggested that Saddam Hussein was a threat and had weapons of mass destruction.

The final point on this, and then I do want to turn to the PATRIOT Act, there is a bit of a double standard in that critics of the administration are now saying: You can't just look to the consensus opinion, you need to look at some of those within the intelligence community who were dissenting about certain aspects of intelligence, the so-called nuggets. If you look deeply into this report, you will find there was some element of it that did not quite jibe with the rest of the consensus or there was some entity in our Government that didn't totally agree with the consensus opinion. As I said, you are going to see that through any national intelligence estimate or any other description of intelligence analysis.

We encourage that. One of the 9/11 Commission recommendations, and the other commissions that have looked into this, is that there is not enough devil's advocacy going on. There is too much ``group think'' within the intelligence community. So it is a good thing to have that intelligence questioned.

I remember there was actually criticism of Vice President Cheney because he went down to the CIA headquarters and had the temerity to ask these agents: Are you sure about this? Are you sure about this intelligence?

They said: What's he doing that for?

He is a so-called consumer of the intelligence. He has every right to say: Are you absolutely sure of this?

People within the administration should be questioning as well. That is why I think it is so unfortunate that there is, literally, a cabal to attack the Defense Department for questioning some of the intelligence community's estimates--not all of which turned out to be right, as we know. But there is an investigation that has been actually formally requested. In order to get it resolved, the Defense Department has agreed to conduct an inspector general's investigation into one of the offices of the Department of Defense, into the question of whether it should have questioned the intelligence of the

CIA and taken its analysis and its questions to other people within the Defense Department or the national security apparatus of the administration.

Why not? The whole point of these commission recommendations is people ought to be asking questions. The CIA is not a monastery of monks who get manipulated intelligence that nobody else ever looks at. The whole point of gathering intelligence is so our policymakers can use it and make decisions based upon it. When the policymakers have questions about it, they have every right to ask those questions. And when there is some evidence that suggests the intelligence is not exactly accurate, they have a duty to raise that kind of issue.

There is a bit of a double standard going on that when one wants to criticize the administration and wants to play devil's advocate, there was a little bit of evidence over here that contradicted the consensus in the community, and we should have paid more attention to that. Maybe so. You can't turn around and criticize those, in this case, in the Department of Defense who saw the same infirmities, and who had questions about the CIA intelligence and now are being criticized because they had the temerity to raise those questions. You can't have it both ways.

In reality, intelligence is an imperfect proposition at best, and we ought to be playing devil's advocate and be asking tough questions about it. But I daresay, unless you get very good evidence that someone was deliberately lying or misleading, you shouldn't throw those kinds of words around.

I would be happy to yield.

Mr. President, I say that is exactly right. In fact, the National Intelligence Estimate itself specifically characterized the dissenting as well as the majority views with respect to what those tubes were for. The majority view was that they were for centrifuge, for weapons material production. The minority view was they might be for artillery shells, or some other kind of projectile. There were two agencies within our government that held that latter view. The majority of the intelligence community held the former view.

But, yes, I remember as a member of the committee being briefed on that and hearing testimony on it numerous times.

That is true.

Mr. President, the Senator from Alabama is absolutely correct. There is an important factor the American people need to understand. There is not just one intelligence agency, the CIA; there are lots of different elements of our Government gathering information, a lot of it secret information. They meet as a group to try to put this together and to reach a consensus. But when the estimates are briefed to us and to the President, they try to arrive at a consensus. Frequently, that consensus is less certain because there are some dissenting views that characterize the consensus. Doubts are expressed in certain technical ways.

It is one thing for the community to say it is the community's judgment; of course, that is stepping down from saying we know it as a fact. A judgment is not fact, it is an opinion. Then there are further gradations down. We are exposed to those same--these are all footnoted. We all know who believed what. But at the end of the day, in order for us to get good advice, they try to put it together in a form that reaches a conclusion. Sometimes because there are differences within the intelligence community, those conclusions are not as certain or as certainly expressed as they are on other occasions because of that uncertainty.

Mr. President, the Senator from Alabama is correct. I would say that we should not make too much of these nuance opinions and disagreements. In one sense, they are important; but in another sense, you have to balance that against the fact that there was a mountain of evidence in different areas that all add up to the same proposition. And add to that--some of that turned out not to be correct--but add to that the element of judgment.

This can't be overemphasized. Intelligence analysts apply judgments and common sense to the evidence that they have. Because the evidence is rarely black and white, you very rarely get the bad guy to say, I will tell you everything I know, and it is everything you need to know about this. So you have to exercise judgment.

After the first gulf war, we later learned that Saddam Hussein was about 6 months away from having a nuclear weapon program. That is fact No. 1.

Fact No. 2: Throughout the ensuing decade, he hid his programs. He tried to deceive the inspectors. He refused to comply with U.N. resolutions to release information. One could, therefore, surmise--or at least it would not be a bad presumption to engage in--that if he had it at one point, or almost had it, we had evidence he was trying to get it. Again, he was hiding the ball at every opportunity. The intelligence analysts have to say, Which way am I going to presume this, that he does or that he doesn't? They concluded that there is every indication that we had better assume that he does.

The policymakers have to take that a step further. We say they are not absolutely certain; they are pretty sure, but they are not absolutely certain which way we should flop on this. Should we flop to the direction of inaction? Let's wait until we have absolute proof before we do anything, or go the other way? This is pretty dangerous business. If, in fact, he has, we had better act now before it is too late.

We think we will take the action that is based upon the proposition that he will have it. That is a judgment that we engaged in.

As my colleague, the Senator from Arizona, so eloquently has pointed out, the choice was when, not if, we would face Saddam Hussein. The question was, would we do it on his terms or on ours? We chose to do it on ours. The result is Saddam Hussein today stands trial for mass murder. The Iraqi people have an opportunity for freedom, and we have an opportunity to transform that region of the world into one that supports peace and opposes evildoers and terrorists as opposed to one which was a hot bed when Saddam Hussein was in charge.

Mr. President, I want to get to the matter I came to speak on, the PATRIOT Act.

The Senator from Massachusetts spoke to us about having respect for one of our colleagues in the other body who is, in fact, a patriot and who certainly should never be called a coward.

I also want to ask that same deference to those in the Defense Department and others who were doing their duty for our country, who could have been in the private sector making a lot of money and taking care of their families but chose to serve their country in another way in later life by acting on behalf of all of us in matters of national security. The Secretary of Defense, Don Rumsfeld, Paul Wolfowitz, Doug Fife, who headed the office I spoke of, these are patriots. And for anyone to suggest that someone like Doug Fife or Don Rumsfeld or Paul Wolfowitz were misleading anyone is, frankly, about as low as you can get. And even loose words such as ``unlawful'' have been thrown about.

This is a very bad state of affairs that we have come to when that is the kind of discourse we have in talking about people who have served our country honorably. I hope my colleagues will join me in trying to elevate the rhetoric rather than taking it down further. And that applies to everybody--Democrat and Republican Members of Congress, or the administration.

I came to talk about the PATRIOT Act. I would like to make some comments because we are in the middle of a big debate in the Senate and House about the reauthorization of the PATRIOT Act. If we don't reauthorize the PATRIOT Act, all of the tools that we have given to our law enforcement and intelligence community to help us win the war on terror are going to--not quite, but most of those tools will cease to exist. They will expire. That is why we have to reauthorize it.

Just as it is important for us to give the men and women in the military the tools they need in the missions we send them on, the war on terror, so, too, it is for us to ensure our law enforcement and our intelligence people have the tools they need to carry out the mission that we ask of them.

In the war on terror, intelligence and the ability to use it in the law enforcement community are critical to our success.

One of the greatest things we accomplished after 9/11 in passing the PATRIOT Act was to tear down the wall that had been created between our intelligence-gathering organizations and law enforcement. They couldn't talk to each other. One could gather information, but they couldn't give it to the other, and vice versa.

As a result, neither were able to do their job in getting information about terrorists and putting out that information to proper and good use.

There is virtually no disagreement that I know of that this part of the PATRIOT Act has been critical to our success since 9/11. Yet there are those on both sides of the aisle in this body who are threatening to hold up the reauthorization of the PATRIOT Act because they haven't gotten their way on every little thing that they want, and some of them don't even know what the conference committee has been negotiating. I am on that conference committee and I know what we have discussed, and I know what is still a matter of issue out there.

I want to talk a little bit about the PATRIOT Act because there is a great deal of ignorance about what this important tool does for our war on terror. And we cannot be ignorant, even though it is a matter of law and a little bit complicated. We don't have the luxury of being ignorant about this. We have to understand it to appreciate it.

I will speak to that for a little bit.

I believe, like some great controversies of the time, history books will record that the controversy over the PATRIOT Act was actually something we will look back on and say, What was all the fuss about? It is a little bit like when President Reagan talked about tearing down the wall and calling the Soviets the ``Evil Empire.'' There was great handwringing. This was not going to be good for our foreign policy. We look back on it now and say, What was all the fuss about? He was right. It was a good thing.

Those who are threatening to hold up the reauthorization of the PATRIOT Act should have pretty much the same words spoken to them about the wall. This time we are talking about the wall between intelligence and law enforcement. I say to them, ``Tear down this wall.'' We did it in the PATRIOT Act. They are about to let the PATRIOT Act expire because they have some view that every little thing they want has not gotten accomplished in the PATRIOT Act.

This is important business. For those who are threatening to prevent the reauthorization of the PATRIOT Act, I challenge them to come to the Senate today, tomorrow. I will be here. Let's have the debate.

What are the big deals in the PATRIOT Act? The biggest is the wall coming down, as I said. There is no disagreement about that. Yet, it is going to go right back up if we do not act.

The second provision in the PATRIOT Act that people have focused on is the so-called section 215 which allows a FISC, Foreign Intelligence Surveillance Court, to issue subpoenas to produce business records. That authority has been in the law for a long time. But we added it to the PATRIOT Act in order to allow the FBI to seek an order from this special court that was created for:

. . . the production of tangible things (including books,

records, papers, documents, and other items) for an

investigation to obtain foreign intelligence information.

Not to obtain foreign intelligence information. And FISC defines ``foreign intelligence'' as information relating to foreign espionage, foreign sabotage, or international terrorism.

Section 215 is basically a form of subpoena authority, such as that allowed for numerous other types of investigation. A subpoena is merely a request for particular information. Unlike a warrant--and this is important--a subpoena does not allow a government agent to enter somebody's property and take things. It is only a request. If the recipient objects, the Government must go to court and defend the subpoena and seek an order for its enforcement. Most Federal agencies have the authority to issue subpoenas, and many agencies have multiple subpoena authorities.

The Justice Department has identified over 335 different subpoena authorities in the United States Code. One can hardly contend that although the Federal Government can use subpoenas to investigate Mohammed Atta if it suspects he is committing Medicare fraud that it should not be allowed to use the same powers if it suspects he is planning to fly airplanes into buildings. What sense would that make?

Some critics argue that most of the existing authorities are different because section 215 subpoenas do not relate to heavily regulated industries

like some of the other subpoenas. But even subpoenas issued to investigate the industries are used to request information from persons outside the industry. For example, the Small Business Administration is authorized to use subpoenas to aid its fraud investigations. When it uses that subpoena, it can and often does request information from others doing business--from anyone doing business--with the recipient of the SBA loan.

In one important way, the authority in section 215 of the PATRIOT Act is even narrower than the authority given by most subpoena statutes. This is critical. Unlike these other authorities, a section 215 order must be preapproved by a judge. Many people who debate the PATRIOT Act ignore this or do not know it. They say, you do not even have to get a court order. It must be preapproved by a judge. Even grand jury subpoenas, despite their name, are simply issued by a prosecutor conducting a grand jury investigation with no judicial review prior to their issuance.

Chief among the complaints made by critics of this section is that it could be used to obtain records from bookstores or libraries. Some of these critics have even alleged that section 215 would allow the FBI to investigate someone simply because of the book he borrows from the library. Section 215 could, in fact, be used to obtain library records, though neither it nor any other provision of the PATRIOT Act specifically mentioned libraries or in any way is directed at libraries. Section 215 does authorize court orders to produce tangible records and that could theoretically include library records.

Where the critics are wrong is in suggesting a section 215 order could be obtained because of the books that someone reads or Web sites he visits. Section 215 allows no such thing. Instead, it allows an order to obtain tangible things as part of an investigation to obtain foreign intelligence information, information relating to foreign espionage or terrorism or relating to a foreign government or group and national security.

By requiring a judge to approve such an order, section 215 assures these orders will not be used for an improper purpose. And as an added protection against abuse, the PATRIOT Act also requires that the FBI fully inform the House of Representatives and the Senate every 6 months. These checks and safeguards leave FBI agents little room for the types of witch hunts the PATRIOT Act critics conjure up. Any use of the subpoenas, in other words, must be reported to us.

Further, and I ask Members to think about this for a moment, especially in view of some of the criticism that has been leveled at the act, I would like to emphasize there are very good and legitimate reasons why an intelligence or criminal investigation might extend to a bookstore or a library. One example former Deputy Attorney General Comey has cited is the investigation of the Unabomber, Ted Kaczynski. Remember that the Unabomber's brother had relayed to Federal agents his suspicion that Ted Kaczynski was behind this decades-long string of mail bomb attacks. At the time, the Unabomber had recently published this manifesto which cited several obscure and ancient texts. In order to confirm the brother's suspicions, Federal agents subpoenaed Ted Kaczynski's library records and discovered that, in fact, he had checked out these same obscure texts cited in the manifesto.

Section 215 also could have been used directly to investigate the perpetrators of the September 11 attacks. How so? We now know that in August of 2001 individuals using Internet accounts registered to Nawaf al Hazmi and Khalid al Midhar used public access to computers in the library of a State college in New Jersey. The computers in the library were used to shop for and review airline tickets on an Internet travel reservation site. Al Hazmi and Al Midhar were hijackers aboard American Airlines flight 77 which took off from Dulles Airport and crashed into the Pentagon.

The last documented visit to the library occurred on August 20, 2001. On that occasion, records indicate that a person using Al Hazmi's account used the library's computer to review September 11 reservations he had previously booked.

In August of 2001, Federal agents knew that al Midhar and al Hazmi had entered the United States. They initiated a search for these individuals because they knew they were associated with al-Qaida. Had the investigators caught the trail of these individuals--and by the way, one of the criticisms in the 9/11 Commission Report was that our Government did not adequately pursue these two individuals; that there was a lot of evidence they could have pieced together. They didn't follow it. They let them out of their sights, at which point they were gone. They knew they were here, but they could not find them. Had they followed the trail of the individual and had the PATRIOT Act already been law, the investigators would have likely used a section 215 to use the library records to see the Internet trail, and history might well be different.

Finally, over half a dozen reports submitted by the Inspector General of the Department of Justice have uncovered no instances of abuse involving section 215. The latest public report indicates this authority has been used approximately three dozen times--not all related to libraries, of course. Section 215 is not used very often. But we know that when Federal agents do use it, it is for an important purpose. I cannot imagine that any one of us would want to stop Federal agents from using section 215 in the way it has been used.

There were those who said we should have some additional restrictions on section 215; even though it is an important tool, we need it further restricted. So the conference committee said, all right, let's first make sure we have a new statutory relevance standard so there is no question the information obtained has got to be relevant to the foreign intelligence investigation.

Another concession made was that there would be a three-part additional test which would be put in place to presume relevancy if you can satisfy this three-part test. It is going to further complicate things, further delay things. It is not going to be easy for the Justice Department to prove.

Moreover, another layer of bureaucracy was imposed with so-called minimization standards. The Department of Justice would be required to put into regulation limits on how long the material could be kept, who it could be given to, and so on and so on.

Those who had concerns about section 215 brought those concerns forward and those have been negotiated. I know of no further issue relating to section 215 in the conference that Members of either side of the aisle have brought forward. So those of my colleagues who have said we are going to filibuster the conference report on the PATRIOT Act because, among other things, it has this section about library records. They ought to get informed about the section, and they also ought to appreciate the fact that the people who have negotiated this on both sides of the aisle, on both sides of the Capitol, have concluded they are now done with this section. We have put everything in there we need to to further ensure it can never be abused, but we want to retain it as an important part of our tools in fighting terrorism.

The second of the three sections I discuss is section 213, the delayed notice searches. This is the so-called ``sneak and peek'' search. It is an unfortunate name. Section 213 of the act merely codifies judicial common law, allowing investigators to delay giving notice to the target of a search that a search warrant has been executed against him. Section 213 allows delayed notice of a search for evidence of any Federal criminal offense if a Federal court finds reasonable cause to believe that immediate notice may result in endangering the life or physical safety of an individual, flight from prosecution, destruction, or tampering with evidence, intimidation of potential witnesses, or would otherwise seriously jeopardize the investigation. Notice still must be provided within a reasonable period of the warrant's execution, though this period may be extended for good cause.

The ACLU, in particular, has been critical of section 213. One might think an organization seeking to find fault with this section that deals with the war on terrorism might focus on something other than this particular PATRIOT provision because all it does is codify authority that has been allowed

by the Federal courts for several decades. This is not new. The ACLU alleges that section 213 expands the Government's ability to search private property without notice to the owner. It also states that section 213:

. . . mark[s] a sea of change in the way search warrants

are executed in the United States.

And it finally has charged that as a result of the section 213 authorization of delayed notice, ``you may never know what the government has done.''

None of these allegations is true. First, the target of a delayed notice search will always eventually ``know what the government has done'' because section 213 expressly requires that the Government give the target notice of the execution of the warrant ``within a reasonable period of its execution.'' Section 213 clearly and explicitly authorized only delayed notice, not no notice.

Further, section 213 neither ``expands the government's ability'' to delay notice nor can it even remotely be described as a ``sea change'' in the law. Twenty-five years ago the U.S. Supreme Court established that ``covert entries are constitutional in some circumstances, at least if they are made pursuant to a warrant.'' That citation is Dalia v. U.S. Congress first authorized delayed notice searches 35 years ago in the 1968 Omnibus Crime Control Act. These searches repeatedly have been upheld as constitutional.

In 1990, the U.S. Court of Appeals for the Second Circuit held:

Certain times of searching or surveillance depend for their

success on the absence of premature disclosure. The use of a

wiretap, or a ``bug,'' or a pen register, or a video camera

would likely produce little evidence of wrongdoing if the

wrongdoers knew in advance that their conversation or actions

would be monitored. When nondisclosure of the authorized

search is essential to its success, neither Rule 41 nor the

Fourth Amendment prohibits covert entry.

You can see why this is so. There are certain circumstances where you cannot let the ``bad guy'' know you are listening in on his conversations.

To the extent the ACLU intends to suggest that delayed notice searches are unconstitutional, it bears mention that the U.S. Supreme Court has already addressed that view. I mentioned the 1979 Dalia case in which the Supreme Court described that argument as ``frivolous.''

If anyone would still wish to argue that section 213 is controversial, I would note that on this point, too, the conference committee has resolved the only issue that was in contention. The Senate passed a bill that substantially reenacted section 213 with no restrictions on authority. The bill was, by the way, reported out of the Judiciary Committee on a unanimous rollcall vote, which means even the most vocal critics agreed to it, and it later passed the full Senate by unanimous consent. The only debate in the conference over section 213 is what the presumptive time limit should be for investigators to return to court to renew the delay-in-notice provision.

The Senate bill included a presumptive delay of 7 days, the House bill a presumptive delay of 180 days, with no provision for longer delay in particular cases. The conference committee has agreed to 30 days. I suggest that is an eminently reasonable compromise. And for all the huffing and puffing about so-called ``sneak and peek,'' this is what the real debate has come down to.

I have one more matter, and I will conclude very quickly, Mr. President.

The other section, the third section, is this one on roving wiretaps. It simply allows terrorism investigators to obtain a wiretap for any phone that a suspect uses rather than limiting the wiretap to a particular phone. Criminal investigations already have this authority. The PATRIOT Act simply updates the law to give terror investigators the same authority. As I said, this particular section is no longer in controversy. To my knowledge, all questions have been resolved in the conference committee on this.

Mr. President, I conclude by noting that the conferees have made a very good-faith effort to iron out differences, to add additional protections, preventions of abuse. What it boils down to is we have a law that finally gives law enforcement and the intelligence community the tools they need to fight terrorism. It brings down the wall that prevented them from cooperating in the past. It provides adequate safeguards to ensure that no liberties are being diminished. It applies only to the investigation of terrorism and crimes by terrorists against the citizens of the United States. It would be a pity if we did not move forward to reauthorize this important piece of legislation before it expires.

I renew my challenge to my colleagues. If anyone wants to discuss this, or debate it, I will be here today. I will be here tomorrow. For that matter, I will be here Monday if they want to do it. It is important we get this done and not leave here until we have given our law enforcement officials the tools they need to protect us.

Mr. President, I want to take some time to discuss the importance of preventing tax increases that are scheduled to occur over the next several years.

The budget resolution conference agreement reached in April provides reconciliation protection for $70 billion of tax reductions over 5 years, with the direction that the allocation be used to prevent tax increases during the budget window. This sent a signal to investors that capital gains and dividends tax rates would be extended through 2010. I am disappointed that the legislation approved by the Senate does not meet that expectation. Fortunately, the bill approved by the Ways and Means Committee in the other body does, and I pledge to all investors that I will continue to work for that outcome. Indeed, the Senate majority leader pledged that he would not bring the bill back from conference without an extension of these investment tax rates. Similarly, the administration released its Statement of Administration Policy on the bill, which urged Congress to extend the lower rates for capital gains and dividends, noting, ``These extensions are necessary to provide certainty for investors and businesses and are essential to sustaining long-term economic growth.''

The tax reconciliation bill is intended to prevent tax increases by extending ``widely applicable'' tax provisions. My colleagues might find it interesting that more taxpayers benefit from the lower rates on dividends and capital gains than benefit from any of the provisions included in the tax reconciliation bill approved by the Senate. For example, nationwide, fewer than 8 million filers were helped by the AMT hold-harmless provisions in 2003, while more than 30 million filers reported dividend income and more than 22 million reported capital gains Income.

Nationwide, 17 percent of all tax filers reported capital gains in 2003, the most recent year for which statistics are available. Of all filers reporting capital gains income in 2003, 30.1 percent had adjusted gross income under $30,000 compared to just 8.7 percent who had AGI of $200,000 or more. In Arizona, 18 percent of all filers reported capital gains income, and of those reporting capital gains income, 32 percent had AGI under $30,000.

The story is similar for tax filers reporting dividend income. Nationwide, 23 percent of all filers reported dividend income in 2003. Of all filers reporting dividend income in 2003, 30.6 percent had AGI under $30,000 compared to 6.9 percent who had AGI of $200,000 or more. In Arizona, 22 percent of all filers reported dividend income and, of those filers reporting dividend income, 32 percent had AGI under $30,000.

But beyond the number of taxpayers who have benefited directly, the most important thing to know about these lower rates that were enacted in 2003 is that they are working. At the lower rates, the tax penalty imposed on the additional investment earnings--the reward from taking on additional risk--is smaller, and thus makes the risk more attractive. When investors get to keep more of their reward, they are encouraged to invest more; with more investment, businesses have an easier time attracting the capital they need to expand, create new goods and services, and also create more jobs. It is all of this additional economic activity that creates economic growth.

All Americans have benefited as the economy has rebounded with the help of these tax policies. Whether you embraced these lower rates at the time or not, everyone must now acknowledge that since the 2003 tax relief legislation was signed into law, gross domestic product has grown by more than 3 percent for 10 straight quarters, most recently expanding at a 3.8-percent annual rate in the third quarter. The United States remains the fastest growing major industrialized country in the world. Business investment had fallen in nine consecutive quarters before the 2003 bill's passage, but cutting taxes on capital helped reverse that decline. In the last nine consecutive quarters, business investment increased at a 6.9-percent annual rate.

The strong economy has had a very positive effect on the Government's finances, as more revenue is flowing into the Treasury even at the lower tax rates. As a share of the Nation's GDP, the 2005 deficit was 2.6-percent--down from the 3.6-percent share in 2004. In fiscal year 2005, taxpayers sent $274 billion more in revenue to Washington than the year before and $100 billion more than the Congressional Budget Office predicted. Clearly the American taxpayers are doing their part.

Yet some of my colleagues claim that we cannot afford to keep these lower rates, even though they have spurred economic growth, because we are still running a deficit. If We are to keep these tax rates, they argue, we must raise taxes someplace else. What they are seeking is a flawed form of budget discipline called paygo or pay-as-you-go. I am consistently rated one of the most fiscally responsible Senators by nonpartisan watchdog groups, but I don't support paygo because it has nothing to do with budget discipline when applied to taxes. The fact is, paygo simply does not work. Americans are not undertaxed; our problem is that Congress spends too much, and paygo will do nothing to control the fastest growing part of the Federal budget: mandatory spending. Paygo only applies to new spending or tax cuts; it does not apply to existing mandatory programs that grow unchecked year after year without Congress acting. Mandatory spending will grow from just over half of total Federal spending this year to two-thirds of total Federal spending by 2015, and paygo will do nothing to control it. So paygo is a false solution that is designed to prevent us from extending tax cuts--from making sure tax rates do not increase automatically--but that does nothing to prevent spending from increasing automatically.

I talked earlier about the extension of the dividend and capital gains tax rates that I expect to be added to the reconciliation bill in conference. I also want to mention some of the provisions that are already in the bill. It extends for 1 more year the increased exemption amounts for the alternative minimum tax that are scheduled to expire at the end of the year. Clearly, Congress must address the problem of the AMI in a comprehensive way, but until we can agree on a solution we must not allow the increased exemption amounts to expire. If we allow these exemption amounts to fall back to their pre-2001 levels, millions of middle-income American families will get hit by the AMT. The bill also prevents the AMT from eroding certain credits.

The tax reconciliation bill also includes an extension of the increased small business expensing amounts. Under current law, small businesses can deduct the cost of qualified investments in the first year they are made, up to $100,000 indexed for inflation. After 2007, this amount will drop back to $25,000. The bill extends the increased amount through 2009. Allowing them to expense a greater portion of their investments enables small businesses, which create most new jobs, to invest and grow.

The bill also includes an extension of the saver's credit. The saver's credit is a nonrefundable tax credit that encourages low-income taxpayers to make contributions to an employer-provided retirement savings plan or an IRA. The tax reconciliation bill extends the credit through 2009; it is currently scheduled to expire at the end of 2006.

The bill also extends the above-the-line deduction for college- tuition expenses. Under current law, the provision that allows a taxpayer to take an above-the-line deduction for the cost of college tuition expires at the end of 2005. The tax reconciliation bill would extend it through 2009, which will

make it easier for families and students to plan for their educational expenses.

The bill extends for an additional year an entire group of business tax incentives that generally expire on a yearly basis. Many of these provisions should be made permanent, and some others probably could be allowed to expire. Some of the provisions that I strongly support include the 15-year depreciation-recovery period for restaurant improvements, the 15-year depreciation-recovery period for leasehold improvements, and the extension and improvement of the research and development tax credit.

Finally, the Senate-passed tax reconciliation bill includes several business tax incentives designed to encourage investment in the hurricane-ravaged area of the southeastern United States. These include financing incentives and depreciation provisions to encourage business investment, and are very time-sensitive. We must encourage businesses to rebuild in the gulf coast area; these particular incentives have proven successful in other areas and I expect they will be successful in the Gulf region as well.

So, Mr. President, this tax reconciliation bill is not perfect, but it does include several very important provisions. I am confident we will make the necessary improvements by adding an extension of the lower rates for dividends and capital gains once we get the bill into conference with the House.

I thank the Chair. I thank the chairman.

This is a choice between the product of the Finance Committee and the amendment offered by the Senator from North Dakota. I strongly urge my colleagues to support the product of the committee and to defeat the Conrad amendment.

Let's first focus on this issue of deficit. The deficit reduction that has occurred as a result of the President's tax policies supported by the Republican Members of Congress has been nothing short of incredible.

This is a choice between a continuation of a policy which provides economic growth for our country and more money for our families, more investment for our businesses, and therefore more jobs for Americans. Look at some of these statistics in terms of the gross domestic product growth in our country. Whether you embraced the lower rates at the time, I think everybody has to acknowledge that the rates

we put into effect in 2003 have had a dramatic effect.

Consider: The economy grew at a 3.8-percent annual rate in the third quarter. That is the 10th straight quarter the GDP grew at a rate above 3 percent. We remain the fastest growing industrialized country in the world. That is the longest such period of growth in our history since World War II.

Business investment: In the nine quarters before the 2003 tax rates were put into effect, business investment fell. We passed the tax provisions to cut taxes on capital gains, for example, and we reversed that. In fact, business investment has now increased at an annual rate of 6.9 percent. That means jobs to our economy and more wealth for American families.

In terms of deficit reduction, specifically, we are not undertaxed. Congress is spending too much. That is what is creating the deficit. Nevertheless, as a share of our GDP, the 2005 deficit was 2.6 percent, down from a 3.6-percent share in 2004. In fact, before Hurricane Katrina we were well on the way toward achieving the President's objective of cutting the deficit in half in the next 2 years. In fiscal year 2005, taxpayers sent Washington $274 billion more in revenue than the year before, and $100 billion more than we predicted back in January.

How could we be so far off? This economy is so strong, it is growing so rapidly that even at the lower tax rates we are producing more revenue to the Federal Treasury. This is not a path from which we should deviate. We should continue this path and not adopt the principle of the substitute amendment offered by the Senator from North Dakota. What his amendment presumes is something very strange in economics, and that is that somehow we have reached a magic Minerva, an equilibrium where the Federal Government is taking a tax in the right amount from American citizens never to be changed one iota, notwithstanding the fact we will continue to spend more and more and more, and we will have to have the taxes to pay for that spending or go deeper in debt.

The pay-go amendment that is the centerpiece of the amendment proposed as a practical matter does not affect the most significant aspects of our continued spending, namely the mandatory increases in our mandatory spending, our so-called entitlements--Medicare, Medicaid, Social Security, that which represents about two-thirds of the spending. As a result, the big-ticket items are not restrained in any way. All that is restrained is the ability to promote the continuation of our current tax rates. If we don't continue these tax rates, if we don't take action, for example, this year to extend the capital gains and dividends tax rates for another 2 years, we are going to find in a couple years the American taxpayers are going to be faced with a huge tax increase, and that is because without further action those tax rates will go up by 25 percent in 2 years. That is not right.

Now, some of our colleagues say, well, these tax rates only help the wealthy in our country. Well, is that so? From a column that was authored by Larry Kudlow, a noted economist: The investor class in America ``continues to grow by leaps and bounds . . . The number of families owning stocks has risen to 56.9 million from 54.1 million, meaning nearly 60 percent of U.S. households are invested in equities today.'' We ``have become a society of equity investors.''

Zogby polling shows that nearly all Americans--93 percent--earning $75,000 a year or more own stocks. They can't all be rich. And how about those earning up to $75,000 a year? In this group, more than half, or 56 percent, own shares. Of those earning below $50,000 a year--a group that in the aggregate pays very little taxes overall--30 percent own stocks.

So the continuation of the 15-percent rate on dividends is a matter that affects a very large swath of Americans. As a matter of fact, 23 percent of all filers spread evenly across income categories reported dividend income in 2003 and of that group, 30 percent, 30.6 percent had an adjusted gross income under $30,000. Rich people? I don't think so.

How about capital gains? Seventeen percent of all filers spread equally across income categories reported capital gains in 2003, and of that group 30.1 percent had adjusted gross income of under $30,000. The rich? I don't think so.

How about some of the other provisions in the bill from the committee? The savers credit, only 4 percent of filers benefited from that in 2004.

The above-the-line-deduction for college tuition costs, only 2.7 percent of filers claimed that deduction in 2003.

AMT, only 6 percent of filers are affected by that.

Now, why are all of these things in the committee mark? Because they still represent important policy and we continue to support all of those things.

With AMT, the number of filers is going to double so we have to do something about that. But the bottom line is when you are comparing that to capital gains and dividends, far more Americans are affected by capital gains and dividends and they are not just the wealthy. I read the statistics for $30,000 and under.

The other flaw in the amendment of the Senator from North Dakota is that the whole question of what ``tax cuts cost'' is upside down. The Senator from North Dakota raises that question with respect to revenues to the Federal Government. How much does it cost the Federal Government to have a tax cut? Think about it. That is a strange way to put it. How much does it cost the Federal Government to cut your taxes?

I will put that question the other way around. How much does it cost you when we have a tax increase? Because that is exactly what will happen in 2 years if we don't extend the current tax rates. We should be asking what it costs American families, American taxpayers, and the American economy, American businesses. What is it going to cost them if we take more of their hard-earned money and bring it back to Washington for us in our wisdom to figure out how to spend? That is the question we should be asking.

What is the productive part of our economy? Does the Government create jobs?

Other than these very hard-working clerks here and the other jobs in the Federal Government, we don't create jobs. The private sector creates jobs. It costs money to pay employees. That is why employers try to make money, so they can hire more people, more people will have jobs, their families will be better off. We all understand how the private market works. It requires capital, it requires profits, it requires the Government to get out of the way and not take so much of its money, frankly, and that is why the real question should be with regard to this so-called pay-go, not how much it is going to cost the Federal Government, but how much a tax increase which will result from the policies that are being proposed on the other side of the aisle, how much that tax increase is going to cost hard-working Americans. That is the real question we should be asking.

We need to support the proposal that is before us on the floor today, a proposal which in large measure makes American taxpayers better off and increases the revenues to the Treasury of the Government because the tax policies we have had in place since 2003 are working, both to help stimulate investment in the private sector and create more jobs, and because they are low enough that they create economic activity that can be taxed, providing more revenue to the Federal Treasury. We should reject the amendment of the Senator from North Dakota because it doesn't pursue that same policy goal.

The only caveat to this, of course, is that the capital gains and dividends tax rates I have been talking about are not included in the proposal on the floor or in the proposal of the Senator from North Dakota. But I can assure my colleagues it will be part of the conference report. There is no way we are going to consider a conference report that doesn't continue these current tax policies. To not do so, as I said, would be to begin the biggest tax increase in the history of this country, and we are not going to do that at a time when we need to keep the economy robustly growing as it has been.

I say to my colleagues, the tax proposals of President Bush have been working. Our economy is producing a tremendous number of new jobs, revenue growth for the private sector as well as for the Government sector. Why would we want to turn from that?

With respect to paying for it, let's remember who bears the cost.

There is no free lunch at the end of the day. The taxpayers are going to bear the cost. As a result, the real question we should be asking is not how much these policies cost the Government, but how much they cost the taxpayers.

I urge the Senate to vote against the amendment of the Senator from North Dakota and support the chairman's mark.

Will the Senator yield?

Since the Senator referred to me by name, I would like the opportunity to ask a question.

Mr. President, today the Senate is considering long-delayed legislation to reform our defined benefit pension system. While reforms are certainly needed, I must say that I am disappointed with how watered down this legislation has become since we passed it out of the Finance Committee earlier this year.

Obviously, the current system is in dire straits, with the Pension Benefit Guarantee Corporation, the Federal corporation that insures traditional pension plans, running a $22.8 billion deficit for fiscal year 2005. Moreover, the PBGC said that if events that occurred just after the fiscal year's end had occurred a few weeks earlier, the deficit would have been $25.7 billion. If the Government is going to continue to operate a pension-plan insurance program, we must make sure that employers fulfill their pension promises appropriately so that taxpayers are not asked to bail out the PBGC.

This legislation makes a first step toward requiring more realistic funding of pension promises, and it tries to assess more accurately which companies are in such financial difficulty that they are likely to declare bankruptcy and shed their pension plans as part of their reorganization, leaving it to the PBGC to cover their remaining obligations. While I believe the provisions approved by the Finance Committee were stronger and more responsible, I understand that compromises had to be made as the Finance bill was combined with the bill reported out by the Health, Education, Labor, and Pensions Committee. I hope these provisions will be retained and reinvigorated when this legislation is reconciled with the House pension-reform bill.

My primary concern about this legislation has to do with the special provisions for legacy airlines. The bill reported out of the Finance Committee allows certain airlines to freeze their existing defined benefit pension plans so that no new participants can be added and benefits will not increase in any way. Then it allows these companies an additional 14 years to pay off what they owe on these frozen plans. I agree that it makes sense to allow the airlines to freeze their pension plans so that their liabilities do not get any worse. Further, if giving the airlines extra time to pay their obligations will keep them from shifting the debts to the PBGC, then I believe we are acting responsibly to protect the American taxpayers. I must say, however, that this special treatment is unfair to those airlines that have been responsible about funding their pension liabilities or that have different, and more affordable, retirement savings plans for their employees.

Nor is that all we are apparently going to do to provide special relief for the legacy airlines. On the floor, an amendment will be offered, and will likely pass, that will lengthen the amortization period for the so-called ``hard-freeze'' provision to 20 years and to provide separate funding relief to certain other legacy airlines that will not be taking advantage of the ``hard freeze.'' This separate funding relief will allow these particular airlines an extended period to pay their pension obligations, but will not require the airlines to freeze completely their pension plans. Rather, this so-called ``soft- freeze'' would not allow new participants, but would allow benefit accruals if the company funds those accruals. This is terrible policy; if the airlines have the resources to fund benefit accruals, they should fund their existing obligations on a timely basis instead of taking on new obligations. Congress should not grant any company the ability to amortize its obligations over a longer period of time without requiring it to freeze its pension plan completely. Further, increasing the 14-year ``hard freeze'' to 20 years is overly generous and provides a one-size-fits-all plan for two legacy airlines that have very different financial situations. I am pleased that Chairman Grassley will oppose this amendment.

Finally, with respect to the Akaka amendment, I opposed this measure because it would exacerbate the already terrible fiscal problems facing the PBGC. Unfortunately, Federal regulations dictate that individuals age 60 and older may not serve as airline pilots. I am one of 20 Members of this Chamber who have cosponsored Senator Inhofe's bill to remove this blanket prohibition, a stricture which I have concluded cannot be justified as a safety measure. I am heartened that the Senate Commerce Committee will have the opportunity at their next markup to rectify the inequitable treatment of older pilots the right way--by removing the arbitrary mandatory retirement age. Unfortunately, the Akaka amendment would proceed the wrong way--by swelling the PBGC's deficits by raising the ceiling on allowable benefits.

Overall, this legislation moves forward the process of reforming our badly broken defined benefit pension-plan funding system, and for that reason I will support it even though I am very opposed to its special funding relief for certain legacy airlines. I hope, as the conference committee meets to work out a final version, that the conferees will work for the best possible funding requirements for all companies that participate in the system; that they will keep some kind of a benchmark to identify struggling companies; and that they will keep the legacy airline relief as responsible as possible. We must remember that the American taxpayer will be asked to bail out the PBGC if the system, which is supposed to be self-funding, cannot sustain itself. And a taxpayer bailout is an outcome that I know none of us wants to happen.