Floor Statements

Mr. President, I ask unanimous consent that the following letter be printed in the Record. The letter expresses the strong support of the Fraternal Order of Police for S. 2760, the Public Safety Officers' Defense Act.

Mr. President, I ask unanimous consent that the column ``An All-Out War on Proliferation'' by Undersecretary of State John Bolton, which appeared in Tuesday's Financial Times of London, be printed in the Record. This piece clearly articulates the Bush administration's aggressive approach to stopping the proliferation of weapons of mass destruction. The success of U.S.-led nonproliferation and counterproliferation efforts over the last 4 years shows strong U.S. leadership on a global scale. It is also an illustration of just what we are able to accomplish through U.S.-led multilateral, concrete action, rather than through inefficient bureaucracies and toothless treaties.

I congratulate Undersecretary Bolton for his outstanding piece, and I strongly recommend it to my colleagues.

Mr. President, while the distinguished Senator from Connecticut is still on the floor of the Senate, I commend him for his remarks. The real success, of course, is due to NASCAR. I hope the Senator appreciates that. In any event, I share his sentiments.

Mr. President, I wish to remark on something Senator Lieberman and I had been hoping to launch and then discuss in a little more detail, a subject on all of our minds, and that is the kind of challenge we face as the leading country in the world in this current war on terrorism.

I am very pleased that Senator Lieberman has joined with me and others, or I with him--I think he was the first and I was the second, to put it that way, to correct the record--in a reinstitution of the Committee on Present Danger. This is the third iteration of that committee, twice begun during the cold war--during the first stages of the cold war and then the later stages of the cold war--to ensure that America understood and was willing to face the threat of Communists and communism in a way that would result ultimately in victory.

There were times in the beginning of the war where I think there was an inadequate appreciation of the nature of that threat and how long a struggle it would be and how we prepared and how Americans would have to persevere in order to win that cold war, and then at a midpoint in the war when it seemed as if detente and acceptance of a permanent status of communism was really the only way the United States could ensure we would have peace in the future began to creep into our policy in so many ways that, again, the committee was formed and, under new leadership, said there is an evil in the world--communism--and we cannot coexist in it. In the end, it will have to face its demise, and we will have to win.

President Reagan embodied that spirit in calling the Soviet Union ``the evil empire,'' in both saying and doing that which enabled people to appreciate there could be a winner and a loser against communism, that it was a failed idea, and that we in the United States and the West generally could defeat it, and we did.

Along comes the war against the Islamic radicals who have committed terrorism across the globe, most recently in Russia. But on 9/11, all of the previous attacks of those terrorists who were brought into focus had been treated as a matter of law enforcement. On 9/11, President Bush understood that something much greater was at stake, an existential threat to the United States specifically and to our civilization generally that had to be met with firm resolve because the enemy was not content to seek some kind of peace negotiations or extract some temporary commitments, but rather by its own declarations was in a fight to the finish: Either they win or we win; either they die or we die.

This existential threat would have to be faced by a nation that was willing to engage in the fight as long as it took with whatever it took, regardless of the costs, because nothing more or less than our survival was at stake.

So this third iteration of the Committee on Present Danger was formed. Senator Lieberman and I have been honored to be the honorary chairmen of this effort, to remind Americans and to educate the rest of the world to the seriousness of this threat, to the fact that this is a war, and in war everyone must make sacrifices.

We send brave young men and women to do military missions that could cost their lives. A couple of my colleagues were on the floor earlier lamenting the cost of this war and the casualties among those who have served. Indeed, each one of us grieves for each one of those casualties, and the families and friends of all involved.

But the President has reminded us that in this case our security is not free and that sacrifices will have to be made.

The point of this committee is to remind everyone what is at stake, how difficult the battle will be, how, although we Americans are generally very impatient people who see a problem, want to get on it, solve it and move on, in this case, as with other wars, we have to be in it until the end, whatever the cost. In this case, like the cold war specifically, it is probably going to be a long conflict that will test our patience and our resolve, but that in the end ironically it is patience and resolve demonstrated to the enemy that are most likely to create the condition for our victory.

In this case, being in some respects a battle of ideas and resolve, if the enemy views us to be a weak horse, as Osama bin Laden has called us, then they will be emboldened to continue the battle and to bring it to the United States. On the other hand, if they view us as a strong horse, then they may appreciate the fact that in the end they cannot prevail. That will, more than anything else, permit us to win this war.

So with Senator Lieberman, I point out to my colleagues that in the ensuing weeks we will be engaged in this discussion in an effort to lay out all of the facts about the enemy that we face and the kind of war that we are going to have to be prepared to fight and the sacrifice that is going to be required not just of the men and women whom we place in harm's way for their military mission but the people involved in all of the other contexts of this battle, whether it be military, intelligence, law enforcement, and even right at home. There are many things Americans can do to help win this war.

My last point is simply this: The best thing that Americans can do to win

this war is to demonstrate our resolve not only to the enemy but also to our friends and allies, and most importantly to the people in harm's way, our men and women in the military and others who we have put on the front lines of the battle, to demonstrate to them that as a nation, while we may have some disagreements about the specifics of how we proceed with this conflict, we are united as a people in believing one main thing, and that is that the battle is worth it. So that whatever casualties do exist no one ever need be in doubt, be it the families, the friends, the colleagues in arms, or the service men and women, that their sacrifice was worth the price, whatever that price is.

If we ever begin to create the idea that this is not a war worth winning, that it is not a war worth sacrifice by Americans, then we will have done a great disservice not only to our overall war effort, because the enemy will surely pick up those signals, but also to the families and to the people in the military who are laying their lives on the line. They must continue to know that all of us believe this is a sacrifice worth making and that their sacrifice will not have been in vain.

I hope as time goes on, in debating the nuances of how we proceed with this conflict, all of my colleagues, Republicans and Democrats and everyone else in this great Nation, will understand the importance of reaffirming to those we have put in harm's way that whatever sacrifice they make, it is worth the sacrifice for the security of the people back home, for the opportunities they are creating for others and for the defeat of this insidious foe. That is something we will be talking about, especially as we move into the final phase of this legislative session and fund our homeland security effort, reform our intelligence community and our congressional oversight of that community, and do whatever we can do right now to help win this war, that we ensure that all Americans understand how they can contribute to the victory. Right now their biggest contribution can be to support the effort so the people who we have sent in harm's way will appreciate that their sacrifices, whatever they may be, are not in vain.

Mr. President, I am pleased to join many of my colleagues in supporting this landmark United States-Australia Free Trade Agreement, FTA. I say ``landmark'' because it is both historic in that it underscores the invaluable relationship between the United States and Australia--a relationship that is built on friendship, loyalty, and mutual support for economic and political freedoms--but also because it breaks new ground for an FTA.

For the first time, a free trade agreement negotiated by the United States has addressed the worldwide problem of prescription drug price controls. The United States is virtually the only developed nation that does not regulate pharmaceutical prices. American consumers, who finance the bulk of research and development for the entire world, should be very pleased that the U.S. Government has begun broaching the subject with other developed countries. Because some of my colleagues have raised concerns about the pharmaceutical section, I want to briefly review what the FTA does, and what it does not do, in the area of pharmaceuticals.

First, it is important to note that Americans will only benefit from the drug provisions and, in truth, so will Australians. The FTA makes suitable progress on addressing Australia's drug price controls; the U.S. did not have to make any concessions in exchange. I say suitable progress because, while the agreement makes important progress, Australia does not embrace a free market for drug pricing with the accord.

I joined a number of my colleagues on a Congressional delegation trip to Australia at the beginning of the year. During our meetings with Australian government officials we had the opportunity to debate the Australian drug pricing system. I believe the agreement we will approve today was possible, in part, because of those discussions.

In the FTA, the U.S. and Australia state that they ``recognize'' the importance of innovative pharmaceuticals in delivering high-quality health care. Incorporated in this, both countries agree to set pharmaceutical prices based on the ``objectively demonstrated therapeutic significance of the pharmaceutical.'' In practice, the U.S. Government is already in compliance with this provision because our Government does not ``mandate'' prices; certain Government agencies may negotiate prices with drug companies, but by and large, we allow the free market, including negotiations between drug companies, and insurance companies, to determine prices. While Australia could not take the next step and price drugs accordingly or adopt market-pricing, this is still an important first step. If the U.S. can convince our friends and trading partners to agree that innovative pharmaceuticals benefit everyone and that R&D is both costly and necessary to our health, then we can begin arguing for better burden sharing of R&D costs.

I want to talk for a moment about price controls and the effect they have on research and development. Some of my colleagues argue that the U.S. should adopt prescription drug price controls indirectly by importing price-controlled drugs from other countries as a means of reducing drug costs for American consumers. I believe this would be a terrible mistake for a number of reasons, one of which is the effect it would have on R&D. To date, the

U.S. has seen private pharmaceutical research move to the U.S. from Europe specifically because of price controls. Companies are able to recoup their R&D costs in the U.S. market and are consequently more likely to develop their new, breakthrough pharmaceuticals in the U.S. Americans like having the R&D performed in our country--we like the quality jobs it brings and we like having first access to new products--but we do not like the fact that Americans pay for almost all of the R&D for the world. Americans know this is simply not fair. If the U.S. adopts price controls, we will see the development of new, innovative pharmaceuticals drop off because there will be no one left to fund R&D. Rather, we must begin persuading other developed, market economies to begin shouldering their share of the burden. That is why the fact that the agreement recognizes the importance of R&D is so critical.

The FTA also commits Australia to make both transparency and timeliness improvements to their Pharmaceutical Benefits Scheme, PBS, that are intended to make the listing process for new pharmaceuticals more open and fair. The PBS is the system by which the Australian government sets price controls and provides subsidies for nearly all drugs sold in Australia. To improve transparency, Australia agrees to establish an independent review board to hear appeals of PBS listing decisions. This will enhance transparency and accountability in the operation of the PBS. Companies will gain a better idea of how and why decisions were made regarding their drug submissions. Prior to this agreement, U.S. drug companies would submit information on a new drug for listing by the PBS, the PBS would set the price, and the company would be left with a ``take it or leave it'' situation.

Some of my colleagues have asked whether the U.S. will have to establish a similar independent review board, but the general counsel of the USTR clarified for the Senate Finance Committee, during the July 14, 2004 consideration of the FTA, that because our processes are already open and transparent, no independent review board is required for any U.S. Government purchases of pharmaceuticals, by the Veterans' Administration, for example).

Finally, the FTA establishes a ``medicines working group'' that will provide a forum for continued dialogue between the United States and Australia on pharmaceutical issues. During our meetings in Australia we suggested such a working group as a way to guarantee that, if our pricing concerns could not be resolved in the FTA, we could continue to discuss the issue. The subject matters that the group might consider are not limited by the agreement, and therefore can be expected to include the importance of market-based pricing.

Now, to address the concerns of my colleagues. First, the FTA does not ban the importation of price-controlled drugs. As my colleagues know, it is already illegal for individuals to import prescription drugs into the United States. Now, Congress may vote to amend U.S. law to allow individuals to import prescription drugs from foreign countries. I would strongly oppose this, but we may do it. This agreement would in no way prohibit Congress from changing U.S. law to allow drug importation. The new U.S. law would supercede the agreement and would take effect despite any inconsistencies with the agreement. Also as some of my colleagues know, Australian law prohibits the export from Australia of drugs that are subsidized by the Australian government. This only makes sense, from the perspective of Australian taxpayers. Australian law does allow nonsubsidized drugs to be exported; but in reality, most of the drugs marketed and sold in Australia are under the subsidized system. As a consequence, Australia is not likely to be a significant exporter of low-priced drugs to U.S. consumers, should Congress allow drug importation, regardless of what this FTA says.

Another charge raised by some of my colleagues is that the patent protections in the FTA will in some way prohibit drug importation. The patent protections included in the FTA merely state that both nations agree to protect the patent owners' rights to determine how, by contract or other means, their patent is used by a licensed third party. It is not specific to pharmaceuticals, nor is it unique to this FTA; other U.S. trade agreements include similar language that merely reiterates and is consistent with existing U.S. patent laws. That is, under U.S. law patent holders already have the right through contracts and by other means to limit the use of their products. If an unscrupulous person wanted to steal a U.S. company's drug patent, illegally make the drug, and sell it into the United States, it would be a violation of U.S. law, regardless of whether the U.S. entered into this FTA or not.

I urge all of my colleagues to review the facts if they have concerns with the drug provisions of this FTA because this agreement will not increase drug prices in the U.S., it will not increase drug prices in Australia, and it will not prevent the U.S. from changing our laws in any way. It will, however, begin an important dialogue with our Australian friends about the importance of R&D and of paying for R&D; this is an important first step. I urge all of my colleagues to support the agreement.

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

Mr. President, today I rise in support of S. J. Res. 40, the Federal marriage amendment to the U.S. Constitution. I do so with conviction that this course is the right one, but with considerable frustration that we have come to this point as a nation. This constitutional amendment, in my view, should not be necessary.

The core definition of Western civilization's most stable and important social institution, traditional marriage, should not be jeopardized by litigation and court decisions. Activist trial lawyers should not be filing lawsuits asking courts to change the basic rules of marriage for all society. Judges should not be denouncing traditional marriages as a stain on the Constitution that must be washed away. But that is where we are: Confronting a coordinated, well- funded, and persistent campaign in the courts to undermine marriage.

After careful study, I have come to the conclusion that the only way to protect traditional marriage from these undemocratic forces is to pursue a constitutional amendment that protects traditional marriage. Only through such a constitutional amendment process will the American people genuinely have the opportunity to speak out and guarantee that traditional marriage is protected.

I wish to spend a few moments explaining why I think this issue is so important.

In short, traditional marriage--marriage as the union between a man and a woman--exists, first and foremost, as the best environment for the protection and nurturing of children. Traditional families are where we hope the children will be born and raised, and where we expect them to receive their values. And we hope these things for a good reason.

As one social scientist who testified before the Finance Committee earlier this year said, children on average experience the highest levels of overall well-being in the context of healthy marital relationships.

This testimony is consistent with an overwhelming body of social science testimony received by the Finance, Health, Judiciary, and Commerce Committees earlier this year. If we want our Nation's children to do well, we need to do what we can to ensure they grow up with mothers and fathers. So we need to protect the place where mothers and fathers properly unite--marriage.

I believe traditional marriage is an institution worth saving, and I believe we send a very important message to our children when we stand up for the institution of marriage. We tell them that marriage matters; that traditional family life is a thing to be honored, valued, and protected. We tell them marriage is the best environment for raising children, and we tell them every child deserves a mother and a father. We point them to the ideal and that the radical redefinition of marriage through the court threatens this ideal.

We cannot strip marriage of its core--that it be the union of a man and woman--and expect the institution to survive, as we have come to know it.

It is because I feel so strongly about preserving and even encouraging a healthy marriage culture that I have been so disturbed by the legal developments our Nation has witnessed over the past 10 years. We are on the Senate floor discussing an amendment to the Constitution because activist lawyers persist in filing lawsuits to force States to redefine marriage to include same-sex couples. These activists are

dodging the will of the American people who overwhelmingly oppose a redefinition of marriage and instead have been asking judges to rewrite the marriage laws.

More than a year ago, I asked the staff of the Republican Policy Committee, which I am privileged to chair, to analyze the court campaign of these activists and to speculate on their prospects for success. We concluded at that time the Massachusetts high court would likely find traditional marriage unconstitutional, and that a number of lawsuits attacking marriage would begin to expand dramatically.

While some quarreled with those predictions, unfortunately they have proven to be 100 percent correct. I wish to summarize briefly these legal developments that brought us to the point we are.

There is in this country a collection of activist lawyers who genuinely and sincerely believe marriage should be redesigned so couples of the same sex could marry. Groups such as the ACLU, Lambda Legal, and Gay and Lesbian Advocates and Defenders, GLAD, and others have frankly explained their strategy. Their goal is to use the courts to force the entire Nation to adopt same-sex marriage. They understand they cannot do it through the democratic process convincing people of the wisdom of their position, but must rather succeed in convincing judges to overturn our long-time understanding of the meaning of marriage.

They saw their first great victory in Vermont in 1999. In response to a suit by the ACLU and other activist groups, the Vermont State Supreme Court ordered the legislature to recognize same-sex marriage or to create some form of civil union that was exactly like marriage.

Vermont citizens at the time opposed both same-sex marriages and civil unions, but the court mandate was clear: Legislators must create same-sex marriage or some form of same-sex civil union or the court would do it for them. The legislators chose civil unions in the face of the court's dictate, but it can hardly be said that they acted in accordance with the democratic process. No, this was ruled by lawsuit, not by legislation.

These activist lawyers who had succeeded in Vermont quickly turned to new States, this time aiming for a complete transformation of the marriage laws. It is true that homosexual couples had gained all the rights and benefits available under Vermont law as married couples. The same-sex marriage activists did not just want rights and benefits, they wanted to redefine marriage itself to change the cultural norms that have characterized this institution of man and woman for ages.

These groups acted carefully. They put most of their efforts into a new lawsuit in Massachusetts. The people of Massachusetts opposed same- sex marriage, and their legislators would never change the law to allow it. But the activists were not interested in a democratic solution. They knew they could not convince many millions of citizens to undermine traditional marriage, so they decided to focus on just four people, the majority of the supreme court of the State. They did what too many Americans do nowadays, they filed a lawsuit. The result was a resounding defeat for traditional marriage and the people of Massachusetts who continue to oppose same-sex marriage in their State.

In November 2003, a 4-to-3 majority of the Massachusetts Supreme Judicial Court ruled in Goodridge v. Massachusetts Department of Health that the State constitution required the State to recognize same-sex marriages.

Of course, the State constitution said no such thing. It contained the same basic equal protection and due process clauses that exist in most State constitutions and in our U.S. Constitution. These clauses had never been understood to require the rewriting of marriage itself, but that is what the four judges determined.

As breathtaking as this decision was, even more stunning was the disdain that these four judges showed for traditional marriage and its supporters. The court wrote that there was ``no rational reason'' to preserve traditional marriage laws; that support for traditional marriage was rooted in little more than ``persistent prejudices'' and that the several-thousand-year-old institution of marriage was little more than ``an evolving paradigm'' that could be redrafted and rewritten by the courts whenever they desired.

One judge even scoffed at what he called the ``mantra of tradition.'' In a followup opinion reaffirming and expanding the earlier decision a few months later, the same four justices even said that the marriage laws of Massachusetts were ``a stain on the Constitution,'' and that the stain must be eradicated by the court.

Incredibly, the court even suggested that it would be better to abolish civil marriage altogether than preserve it in its traditional form.

On May 17 of this year, the Goodridge decision took effect, and the State began issuing same-sex marriage licenses in Massachusetts. Many same-sex couples from other States traveled to Massachusetts and then returned back to their own States.

While the Massachusetts Legislature has given preliminary approval to a State constitutional amendment to return marriage to its traditional meaning, it will be more than 2 years before the citizens can even vote on that amendment. In the meantime, for hundreds of people who have traveled to Massachusetts from all over the country, same-sex marriage is a reality.

So what happens next? Is it realistic to believe that same-sex marriage can be isolated to Massachusetts? Will the activist lawyers who brought that suit continue to press their claims on behalf of these ``couples'' who return to their States of residence? The answer is clear. The activist groups already are seeking to bypass the legislative process and impose their agenda through courts in other States.

There are now more than 35 lawsuits pending in 11 States across our Nation in which States' marriage laws have been challenged as unconstitutional, States such as California, Florida, Indiana, Maryland, Nebraska, New Jersey, New Mexico, New York, Oregon, Washington, and West Virginia. Many of these lawsuits are brought by the same lawyers who filed suits in Vermont and Massachusetts, activists from the ACLU, LAMBDA Legal, and GLAD in particular. In fact, the lawsuit in Maryland was filed only last week by the same legal team at the ACLU that is managing lawsuits in New Jersey and elsewhere. Many more lawsuits surely will follow.

As I said, the activist court strategy is no secret. The ACLU, LAMBDA Legal, a group calling itself Freedom to Marry, are very open about their hopes of imposing same-sex marriage through the courts.

Let us look at some of the lawsuits we can expect. First, these activists will file more suits challenging State marriage laws the same way they did in Massachusetts and are doing in 11 other States today.

Second, there will be lawsuits seeking to strike down the Defense of Marriage Act so that same-sex couples can get access to Federal benefits such as tax filing status, Social Security benefits from same- sex partners, and many of the other benefits or rights that the Federal Government grants to married spouses.

Already, for example, there is a lawsuit pending in Florida that directly claims that DOMA is unconstitutional.

Third, these activists will file lawsuits trying to force other States to recognize same-sex marriages in Massachusetts and any other place where they can convince judges to change the marriage laws against the people's will. Such a lawsuit currently is pending in Washington State, where a same-sex couple received a marriage license in Oregon and now insists that Washington must recognize that marriage, despite clear State law to the contrary.

Finally, there will be many other lawsuits that cannot be anticipated that will happen as same-sex married couples move from State to State, as many Americans nowadays do. These couples will try to get divorced when marriages fail. They will try to execute and enforce wills when one of them dies. They will have all kinds of run-of-the-mill business disputes as happens in other situations, and courts will struggle to figure out how to treat their legal relationships when these disputes arise.

Those struggles will take on a constitutional dimension. For example, two women who received a marriage license in Canada later decided to declare bankruptcy in Washington State.

They filed their petition jointly as though they were married. Because all bankruptcies are filed in Federal court pursuant to Federal law, the Defense of Marriage Act is implicated. The bankruptcy trustee has objected to their joint petition, citing DOMA's provision that for the purposes of all Federal law, marriage is the union of a man and a woman.

The bankruptcy petitioners now argue that DOMA itself is unconstitutional and that the bankruptcy court must recognize the Canadian same-sex marriage. Thus, a simple bankruptcy petition has taken on constitutional dimensions. Cases such as this will proliferate, some filed by activists and some filed by citizens just trying to live their lives, as appears to be the case in the bankruptcy petition in Washington State.

The result will be tremendous confusion in the courts throughout the Nation, as some States recognize same-sex marriage for some purposes while other States recognize them only for other purposes.

As these lawsuits progress, it will be the courts, not the people, that make the decisions on whether same-sex marriage will spread throughout the entire Nation.

In the not too distant future, the legal activists who are managing this attack on traditional marriage laws will decide that they are ready for the big case, a case before the U.S. Supreme Court. After wreaking havoc on traditional marriage throughout the Nation, these activists will tell the Supreme Court that the confusion in the States demands a national solution. They will argue, not unpersuasively, that we are one Nation, that we cannot long function with such fundamentally inconsistent understandings of marriage.

When that day comes, when the U.S. Supreme Court is presented with the opportunity to rule traditional marriage laws unconstitutional, it is very possible that the Court will side not with the oft-surveyed views of the American people but rather will find a constitutional reason to say the people have been wrong all this time.

Legal and cultural confusion cannot long endure on this question. When a case reaches the Supreme Court, it most likely will craft a national solution. What the same-sex marriage activists expect and hope for is exactly the result that concerns me. Once the Court has spoken, while there surely will be great public outcry if contrary to public opinion, our history shows it is very difficult to change a Supreme Court decision by constitutional amendment.

The only way the American people will ever have a voice in this matter is if Congress sends to the States for ratification a constitutional amendment defining and protecting traditional marriage. Federal DOMA, which has already been challenged, could easily be struck down by the courts. Marriage laws in the States likely will be struck down just as happened in Massachusetts. No Federal law, no Federal regulation, no State law, no State constitutional amendment, can prevent this from happening. The only solution is an amendment to the Constitution and the only question is when to start the process. The more time that elapses with conflicting State law and same-sex couples seeking to have their marriages recognized in different States, the more our society will be conflicted and the more lawyers and judges will be making the decisions.

The constitutional process is the most democratic, the most grassroots, the most respectful process available for the establishment of national policy. A constitutional amendment requires the support of two-thirds of both Houses of Congress. Then it requires the support of the legislatures of three-fourths of the States of the Union. Then, and only then, can the amendment become effective.

This is, as it should be, a very high hurdle. But it is a high hurdle that guarantees that the American people have a full and complete opportunity to speak to the issue, that they can express their views to their Senators, to their Congressmen, and to their State legislators. It takes time, but in the end, as opposed to court decisions, if a constitutional amendment passes, we know that the American people want it.

Look at the proposed constitutional amendment that is before us and examine what it will do. It is on the chart directly behind me. The first sentence reads:

Marriage in the United States shall consist only of the

union of a man and a woman.

The sentence is straightforward. It provides a common definition of marriage throughout the United States, one man and one woman. It guarantees that the central definition of marriage is preserved throughout our country. It protects the American people who overwhelmingly believe traditional marriage should survive against those who would undermine it. We are one nation. While we have a wide variation in many thousands of laws among different jurisdictions, for the central, core issues in the way we organize our society, we have common views and common laws.

That is why, as a nation, we denied one State admission into the Union until it outlawed polygamy. We recognized that marriage was only between one man and one woman, and we would not even let that State enter the Union if it did not agree with that basic, core value.

This first sentence just reaffirms what has long been our national policy and ensures that no court can say otherwise.

Now, turning to the second sentence, it reads.

Neither this Constitution, nor the constitution of any

State, shall be construed to require that marriage or the

legal incidents thereof be conferred upon any union other

than the union of a man and a woman.

This sentence simply ensures that only the people or their elected representatives, not judges, can decide whether to allow marriage or its legal incidents can be conferred on people. This would prevent what happened in Vermont. The State supreme court hijacked the democratic process and coerced the legislature to create same-sex civil unions. The people didn't want it but the court decreed it. The second sentence of this amendment would prevent that kind of result.

The reason to add the second sentence, thus, would be to ensure no court would be able to construe the State or Federal constitution to require the creation of same-sex marriage or any institution or arrangement containing the incidents or benefits that derive from marriage itself. In other words, courts will not be able to create a right to civil unions based on the equal protection or due process clauses of the Constitution. They will not be able to twist the constitutional language, in other words, to serve these narrow policy goals.

However, the marriage amendment in no way bars or bans these kinds of special civil union or domestic partnership arrangements, as long as they are enacted through the legislative process. The marriage amendment preserves our current State organized regime by protecting the rights of citizens to act in their State legislatures to provide whatever benefits to same-sex couples that they should choose. Those benefits could be narrow, granting special inheritance rights, for example, or they could be broad, a full civil union law, for example.

In another example the legislatures of California and New Jersey have recently created arrangements they call domestic partnerships, that grant many of the benefits of marriage to same-sex couples.

Let me say again, the legislatures of those States passed those laws. Benefits were granted through the democratic process. Nothing in the marriage amendment prevents the citizens of a State from acting through their regular legislative process to grant benefits to same-sex couples in that State. So if a State wanted to create marriage-like ``civil unions,'' it could still do so. A legislature's only constraint is it could not create same-sex marriage.

Before I close, I would like to say a few words to address a concern about the amendment that I have heard expressed by some of my Senate colleagues. Some claim the question of same-sex marriage can be handled effectively on a State-by-State basis. Some, including people I respect very much, have told me if Massachusetts wants to have same-sex marriage, it should be able to do so and that Arizonans should not care. They argue that because our States tend to manage most family law matters, there is no reason to place this issue in the U.S.

Constitution. They think of the issue as a thing of the distant future, something that we need not bother with. ``Let Massachusetts worry it,'' in effect.

I respect those who make this argument, but I strongly disagree with the notion that Congress can punt on the protection of marriage. The problem, it seems to me, with this line of thinking is that it assumes--in perfectly good faith, I am sure--a world that simply does not exist. The citizens of each State are not being permitted to decide this question. We should all sympathize with the citizens of Massachusetts who have been forced to see marriage in their State redefined and undermined, without the vote of the legislature or the citizens of that State.

Massachusetts is only the beginning. We see from the 35-plus lawsuits in 11 different States that the activists will continue to campaign in the courts. The lawyers who are championing this cause are not going to permit a State-by-State democratic solution. States rights implies not the courts but the people making the decisions.

The most prominent leader of the same-sex marriage movement, Evan Wolfson, who helped file the lawsuits in Vermont and Massachusetts and elsewhere, has candidly made the point. He scoffs at those who think the Nation can tolerate fundamentally different conceptions of marriage on a State-by-State basis. He understands that it is all or nothing. As he says on his Web site:

America is one country, not 50 separate kingdoms. If you're

married you're married.

In other words, people move around so much in this Nation that we cannot long endure a scenario in which some marriages disappear at the State line. The legal, social, and cultural complications are simply too great. The question of whether traditional marriage is to survive must ultimately be decided for the entire Nation.

In conclusion, the question is, Who decides? Will it be judges, scattered across the land and ultimately over in the Supreme Court? Or will it be the American people, through the constitutional amendment process? This is not some idle question of political theory. The process determines the result. If courts make the decision, they will redefine marriage for every State. If the people can decide, I have confidence they will stand up for marriage.

So, in conclusion, I call on my colleagues not to stand in the way of the people's right to speak. Let the American people make the ultimate decision as to whether we will jettison thousands of years of history and reinvent marriage or whether we will stand by the institution that we all rely upon so much for the future of our children.

I will say it again. This question cannot and will not ever be decided on a State-by-State basis. Either we will preserve traditional marriage in this Nation or we will see it redefined everywhere. The vote we will have in this Chamber is the first step, and I hope my colleagues will join me in making the right one.

I am happy to yield.

Mr. President, I think the Senator from Pennsylvania is exactly correct. I would like to argue that the Defense of Marriage Act is constitutional, but I share the same concerns that have been expressed by others, that the Court will find it unconstitutional. But in either result, this challenge will continue in the State courts. We have the precedent of Massachusetts, and a very clear strategy that the lawyers on the other side have outlined. They have not tried to hide their intentions. They have been very forthright about their intentions of getting State courts to declare State laws and the State constitutions to require same-sex marriage, just as they did in the State of Massachusetts. These 35 lawsuits in 11 different States--at least some of them--will argue this precise point. It is quite possible that on the same basis that the Massachusetts Supreme Court decided that its due process and equal protection language required the recognition of same-sex marriages, that identical language or almost identical language in all of the State constitutions--identical also, by the way, to the Federal Constitution--would require that other States like Massachusetts recognize same-sex marriage. So it won't matter that DOMA says that one State doesn't have to recognize the marriages of another if State by State the courts decide that in those respective States the law requires or the Constitution requires otherwise.

Mr. President, there is one area I agree with the proponents of same-sex marriage on, and that is, the country is going to go one way or the other. You cannot survive a situation in which some States recognize certain benefits, other States recognize other benefits, other States don't recognize any, others recognize same-sex marriages, others, civil unions, and so forth. He makes the point that it has to ultimately be all or nothing. I don't see how on that point he is wrong because people in this country move around.

I cited the case of the bankruptcy petition filed by the Canadian couple, but it could have just as easily been a married couple in Oregon and moving to Washington. The fact is disputes will arise all over the country in courts of States that didn't necessarily confront the question but will have to confront some element of it. When two people present themselves as having been lawfully married in another State and they have some dispute between them, the court of my State, for example, isn't going to be able to avoid the issue and will have to decide one way or other.

We are going to end up, I fear, in the situation in which a definition of marriage has many different meanings all across the country. Something as fundamental as that--as I said, the one thing I agree with the proponents of same-sex marriage on--cannot stand. You have to either define it one way or the other for our society to function--just to function. It becomes a question of, A, what that definition should be--and that is why I have a disagreement with those folks--and, B, who makes the decision.

My primary point is that the people of the country should be making the decision, not just a few lawyers and judges. The best way for people to have a voice in this is by the constitutional process in which they are directly and indirectly involved through the Senate, through the House, and through their own State legislatures.

I would be happy to yield. I actually give up the floor.

Mr. President, the Senator from Alabama is also an extraordinarily fine lawyer in his own right. Of course, the answer is yes. Once the Supreme Court has spoken, and there is language in this Lawrence case that suggests to many that the Court would be inclined to rule in that fashion, then the Court has just enunciated the supreme law of the land and no State constitutional provision or Federal law in any way could attempt to override that. That would be the law of the land.

Mr. President, the Senator from Alabama is correct. The Federal Constitution trumps State constitutions. Even if the people of a State amend their own State constitution, were the Supreme Court to declare that same-sex marriages are required by the equal protection or the due process clause of the U.S. Constitution, that would be the supreme law of the land, overriding any other Federal law, State law, or State constitution.

Mr. President, it has been interesting to hear some of our Democratic colleagues this morning make the charge that the Republican leadership is somehow diverting attention from the real problems of the day by scheduling a vote on an issue which, when I was back home this last weekend, was certainly on the minds of a lot of my constituents, and that is this question of whether judges in America are going to redefine what they have always understood to be their definition of marriage.

To take 1 day, or perhaps as much as 3 days, to debate that issue and get that issue resolved in the Senate does not seem to me to be too much to ask, in terms of conducting our business.

With respect to the claim that it is diverting us from attention to the economic issues that are of most concern to Americans, I have two responses. First, Americans seem to be concerned about more than one thing. They are concerned about raising their families; they are concerned about a good home for their children; they are concerned about a good economic future for their children. All of these are wrapped up in the totality of the things that were expressed to me over this Fourth of July break.

I don't think it is either fair or accurate to say there is only one thing Americans are concerned about and that is their economic future. But to the extent that is an issue and it becomes an issue in the Presidential campaign this year, I think some facts are worth pointing out.

I realize that sometimes facts get in the way of arguments. One of the main arguments of our colleagues on the other side of the aisle is that this is a bad economy. The Democratic Presidential candidate has talked about the Depression and the worst economy since--I don't know, Hoover, I guess. But the facts belie that claim. So perhaps this morning we should take a little time to discuss some facts, some actual statistics, some reality about the economy and not just the economy in general but the economy as it affects the average American.

On the question of jobs, one of the criticisms has been--originally the idea was there was no economic recovery. Then the economic recovery became undeniable. Then the claim was

it is a recovery in every sense except the creation of jobs. Then for several months in a row we began creating record numbers of jobs. Then the argument became: But they are not really good jobs.

There are some people you can never please, of course. In an election year, the party that is on the ``out'' has to criticize the party that is on the ``in.'' It is just that it is becoming harder and harder to criticize the Republicans because the economy has rebounded so well, largely because of policies that have been pursued by the Bush administration.

Let's examine the specific claim about employment and about wages and about what kinds of jobs Americans have and how the economic recovery is positively impacting the average American. Look at the June employment figures, which are the latest numbers we have. They demonstrate several things.

First, the quality of new jobs is rising. Nearly 80 percent of the new jobs created in June were in industry categories that pay an average hourly rate in excess of the overall average hourly rate in the private sector. So these new jobs in manufacturing pay a higher wage than the average. The inflation-adjusted average hourly earnings have increased 2.224 percent during the first 3.5 years of the Bush administration, compared with only a .13-percent increase during the same period of the first Clinton administration.

People say, What about disposable income? Not just wages but disposable income. Per capita aftertax disposable income, adjusted for inflation, has increased 7.1 percent, since President Bush took office, well above the 5.2-percent increase during the same period of the first Clinton administration.

It doesn't much matter how you look at it, statistics in every respect are superior to the Clinton administration statistics. They represent economic growth. They represent real return in terms of wages and inflation-adjusted wages for the average American as well as the American working in manufacturing.

Since the start of the Bush administration, full-time employment has averaged 82.56 percent, nearly a full percentage point higher than full-time employment during the same period of the first Clinton administration. So, again, no matter what comparison you make, Americans individually are better off today. It is not just a matter of the economy performing better, but they are individually better off today in terms of employment, in terms of jobs, in terms of earnings.

In the past year, the number of full-time positions has increased by nearly 1.3 million. I mention that because some make the argument that some of these are called ``McJobs''--a play on McDonald's--that they are just hamburger-flipping kinds of jobs. No. We are talking about full-time positions. And I talked about manufacturing jobs earlier.

More than 81 percent of part-time workers in June indicate they have chosen part-time employment for noneconomic reasons. The point is that while full-time jobs are increasing, those who are working part time are primarily working part time according to their own testimony for reasons that do not have anything to do with economics.

I also mention the fact that temporary jobs in June represented only 2.225 percent of all payroll jobs in the private sector.

I make all of these points not to suggest that we can't do better. In fact, the President has said we will not rest until everybody who wants to work can find a job.

When you look at some of the counties in Arizona, for example, in Pima and Maricopa Counties where the employment rate is 4.1, 4.2, or 4.3 percent, something in that order, and when you look at an area where there is a substantial amount of illegal immigration with the people working in sectors that Americans have not wanted generally to work, you can see this is the closest thing to full-time employment we could possibly have in this country.

Let me give some more statistical data because part of the problem in the debate has been claims by one side and facts on the other side. I know that sometimes people's eyes glaze over when they hear too many numbers, but the reality is that numbers tell the story here. They are like pieces of a puzzle. They are reality. When you put them together, what they represent is not just a strong economy but an economy that is helping individual families provide more income and more security for their work situation.

The employment data released by the Bureau of Labor Statistics earlier this month demonstrate this strong job growth. In June, nonfarm payroll employment increased by 112,000 net new jobs. So far this year, nearly 1.3 million net new payroll jobs have been created, and over 1.5 new payroll jobs since last August. According to the Bureau of Labor Statistics' current population survey, which is the household survey, the unemployment rate remains steady at 5.6 percent, which is well below the peak of 6.3 percent in June of 2003. In other words, more Americans are working than at any time in the country's history--139 million individuals. I think that is a record we can be proud of.

I make this point: There is a certain sense in which talking down the economy creates a psychology in the market and becomes a self- fulfilling prophecy. I notice there has been criticism in the past by Members on the other side when Republicans have, during the Clinton administration, noted certain problems with the economy. They said don't talk down the economy, that it will have an effect itself on confidence in the market and confidence among consumers.

This is what disturbs me about some of the rhetoric from the other side. Every measurement of the economy is improving and every measurement with respect to individuals within the economy is improving substantially and is better than the comparable times during the Clinton administration, yet you hear people constantly talking it down. There is a point at which this itself can have a negative impact.

I would like to quote from a Wall Street Journal commentary that sort of describes this phenomenon I am talking about. Here is the Wall Street Journal:

Here's a quick primer on how to track an economic recovery.

When the media fret that the U.S. is heading for a decade of

stagnation like Japan, that means profits and investment are

picking up. When you hear that profits have risen but we're

stuck in a ``jobless recovery,'' businesses have started

hiring. And finally when a cry goes up that American workers

can find only low-paying menial jobs, that's the tip-off that

the economy is booming.

Congratulations, America. The return of ``McJobs'' rhetoric

signifies that an expansion is in full swing.

Of course, the Journal goes on to detail a lot of the statistical information I have been talking about.

By focusing on the quality of the jobs that are being created, the pessimists are once again counting on the public to overlook the facts we have been talking about here. As I have indicated, the facts demonstrate that the U.S. economy is not only producing a steady stream of jobs, but the new positions are well paying and they are industrial jobs. So whether you are talking quality or quantity, it is very hard to deny that this economic recovery is helping all Americans.

One of the concerns has been about manufacturing. There is no question that there are shifts occurring all around the world to an information technology kind of economy, and a lot of the old industrial base of this country has been affected by that. But there are also some statistics that I believe give hope with respect to manufacturing in this country, which is still the No. 1 country for manufacturing in the world.

In June, nearly 80 percent of the new jobs were created in major industry categories which pay an average hourly rate in excess of the overall average hourly rate in the private sector of $15.65. In June, 39,000 new professional and business services jobs were created in an industry with an average wage of $17.38 per hour--11 percent more than the overall average hourly wage; 19,200 new transportation and warehousing jobs were created in an industry with an average wage of $16.50--7 percent above the overall average. In contrast, because some speak about the leisure or hospitality industry where wages are less, the average wage there is $8.86. That only accounted for 6 percent of the new jobs created.

Again, for those who say there are new jobs being created but they are in

the lower paying categories and not in the industrial categories, the statistics simply belie that. They say that is not true.

The point is, very broadly speaking, the employment figures in June are consistent with an upward trend of well-paying industries creating valuable jobs, and this has been occurring for more than a year.

In June, the average hourly earnings of production or nonsupervisory workers increased at an annualized rate of 1.2 percent, the sixth consecutive monthly increase. Importantly, the growth in hourly earnings was broad based, with wages increasing in 9 out of the 11 major industry sectors and unchanged in 3 sectors since June.

Since the beginning of the Bush administration, real average hourly earnings--that means adjusted for inflation --have increased by 2.224 percent compared to the Clinton administration. In the first Clinton administration, real average hourly earnings grew by only 1.3 percent. Moreover, in the 2\1/2\ years following the 1990-1991 recession, real average hourly earnings fell .66 percent. So the current increase demonstrates that earnings are outpacing inflation to the benefit of American workers and their families--again, in sharp contrast to the Clinton years.

Finally, using the broader measure of ``compensation,'' which includes both wages and benefits, the earnings picture improves even more. Between the first quarter of 2001 and the first quarter of this year, compensation paid to workers in the private industry has increased a total of 12.18 percent. Specifically, wages have grown by 9.44 percent, and employment benefits, including health and pension benefits, have increased by 18.98.

No matter how you look at this, individual employees are doing better in terms of the kind of jobs they have, what those jobs are paying both in terms of compensation and in terms of money, as well as compensation in terms of other benefits. There is no way to look at the economic growth and its impact on individual families and workers without seeing the good news. As I said, the only explanation I have for pessimistic talk is the reality of politics.

If you are going to try to replace somebody in an office, you have to complain about something. In this case, however, I think those who are complaining about the economy and are somehow suggesting that President Bush and the Republican administration have not done enough to improve the economy for working families basically have not been looking at the facts. The facts have demonstrated quite clearly that this economic recovery is helping a very broad spectrum of people in this country, from industrial jobs to all other kind of jobs.

Disposable income is another measure by which you can determine whether families are better off--dollars left after taxes. Here is where the Bush administration has really made big strides because of the tax cuts we passed, which some on the other side of the aisle would take away.

In the first 12 quarters, the Bush administration's per capita aftertax income increased by 12.5 percent, in large measure as a result of the individual tax rate reductions we enacted in 2001 and 2003 that were part of the Bush tax reduction programs which he signed into law and is asking us to make permanent. With that kind of improvement in per capita income--this is disposable income, dollars left over after you pay the taxes that our colleagues on the other side of the aisle ought to be joining in making the tax cuts permanent and not that the tax cuts should be eliminated--per capita aftertax disposable income in real, meaning inflation-adjusted, terms has increased 7.1 percent since President Bush took office. That is a significant improvement over the 5.2-percent increase during the same period in the first Clinton administration.

In a courtroom, I would say I rest my case. By every conceivable measure of how Americans have been affected by this economy and the economic growth spurred by the position of the President and the action of the Republican House and Senate in support of the administration, by every measure, Americans' lives have improved. We ought to count that as good news, whether we are Democrats or Republicans, regardless of what economic strata we are in. It represents the best in this country, the opportunity we all have, the kind of idea that President Kennedy, all the way through President Reagan, talked about.

When the economy is improving, everyone in this country is better off, and we should be grateful. We should understand the causes. We should support those legislative policies that represent those causes and not denigrate an economy which is helping the American public.

It is time to be a little bit more optimistic about our future. This is a great country. It is a great country because of the people who create the jobs and who do the work. We should give them a lot more credit than some people on the other side of the aisle have, credit for helping this country to become everything it can become for the benefit of American families.

Mr. President, I ask unanimous consent that Ryan Newburn, an intern with the Senate Subcommittee on Terrorism, be granted the privilege of the floor.

Mr. President, I rise today to respond briefly to the comments made by Members on the other side of the aisle about the nomination of J. Leon Holmes to be a District Court Judge for the Eastern District of Arkansas.

Mr. Holmes has been criticized for a number of comments--some of which are more than two decades old. Yet his opponents ignore the best evidence about Mr. Holmes: the people who have known him well throughout the past two decades of his legal career. As Senator Lincoln of Arkansas recently noted in reaffirming her support for Mr. Holmes, letters of support from:

the legal community in Arkansas, many of whom share

different views than Mr. Holmes . . . describe him as

``fair,'' ``compassionate,'' ``even-handed,'' and

``disciplined.'' His colleagues hold him in high esteem.

That is from a press release of Senator Blanche Lincoln, April 11, 2003. The other home State Senator, Senator Pryor also, of course, a Democrat--supports Mr. Holmes.

Additionally, the strong support of Mr. Holmes' colleagues in the legal community caused the American Bar Association to give him its highest rating of ``well-qualified.'' Finally, the Arkansas Democrat- Gazette, Holmes' hometown paper, is intimately familiar with his record and strongly supports him. The paper, writing while Mr. Holmes was being considered, indicated that Mr. Holmes was a well qualified, mainstream nominee:

What distinguishes Mr. Holmes is the rare blend of

qualities he brings to the law--intellect, scholarship,

conviction, and detachment. A reverence not just for the law

but for ideas, for the life of the mind. All of that would

shine through the clutter of argument that awaits any judge .

. . . He would not only bring distinction to the bench but

promise. . . . In choosing Leon Holmes, [the President] could

bequeath a promise of greatness.

That is from an editorial, Name on a List in a Field of Seven, One Stands Out, Arkansas Democrat Gazette, Dec. 1, 2002, at 86.

It is easy to use out-of-context comments to paint an incomplete and inaccurate picture of a person. By looking at the entire context of Mr. Holmes' career, it is clear that he is held in high regard by those who know him and his work. This includes those who hold views contrary to those of Mr. Holmes, such as Stephen Engstrom, who on March 24, 2003 wrote to Chairman Hatch and Senator Leahy:

I heartily commend Mr. Holmes to you. He is an outstanding

lawyer and a man of excellent character. Leon Holmes and I

differ on political and personal issues such as pro-choice/

anti-abortion. I am a past board member of our local Planned

Parenthood chapter and have been a trial lawyer in Arkansas

for over twenty-five years. Regardless of our personal

differences on some issues, I am confident that Leon Holmes

will do his duty as the law and facts of any given case

require.

Letters like this, from people who have known Mr. Holmes well in the context in which he would serve, are the best evidence regarding Mr. Holmes. It is always appropriate to consider questions raised about comments that a nominee has made in the past, and there certainly has been controversy about some of Mr. Holmes' statements. In this situation, I defer to those who know the nominee, and who are in the best position to put his statements into context. In this case, Mr. Holmes has overwhelming bipartisan support from those in his home State, especially those in the legal community, who have known him over the past two decades. Based on this evidence, I will support Mr. Holmes' confirmation to the Federal bench.

Mr. President, I am going to talk about an amendment which I would have offered to the Defense authorization bill, but in the interest of time and to ensure that we can move the bill forward and complete work on that bill this evening, I am not going to do so.

But I would like to discuss the general subject of the amendment, and begin by complimenting the chairman of the Armed Services Committee, the Senator from Virginia, on recognizing the very important necessity of changing our law to help work very closely with two of our greatest allies, the United Kingdom and Australia.

We transfer a lot of technology back and forth between these two important allies. It is important that we have the capability of doing that. One of the amendments I believe will be adopted as part of this Defense authorization bill is a proposal of the distinguished chairman that would provide an exemption from U.S. law which requires that a bilateral agreement covering a specified set of issues be negotiated in order for a country to obtain an export control waiver. The bilateral agreements between the United States and the United Kingdom and Australia don't quite meet the standard set by U.S. law, so Congress needs to grant an exemption for this. The chairman's amendment is very important in creating this possibility. I strongly associate myself with that amendment.

Just a note or two about this relationship between the United Kingdom and Australia and the United States which illustrates why it is so important for us to have this kind of cooperation. I think everybody knows the United Kingdom is our strongest ally in the war on terror. In addition to the over 8,000 personnel they have provided for the military operation, they support food aid. They have contributed a tremendous amount of money for reconstruction. Everyone is aware of their contribution. Perhaps less well known is the contribution that the Australian defense force has made. They contributed about 2,000 of their personnel, including a squadron of FA-18s and special forces elements, two navy frigates. They have a full variety of operations that I won't get into here. They have also been cooperative with us in a lot of other areas such as missile defense programs, and so on.

It is for this reason that the chairman offered his proposal, which I am sure will become part of the Defense bill, that will make it easier for us to transfer equipment that is important to defense between the United States and Great Britain and Australia.

The amendment I was going to offer simply added or would have added another element to that. We won't do it in this bill. Perhaps in conference with the House or at some other point, we could do that.

It is an amendment that would make sure that in the transfer of important munitions between the United States and a country such as Great Britain, they would never get into the wrong hands. That is to say, they wouldn't be exported to a country that might potentially use them against the United States. The reason it is a problem is that some countries in Europe, for example, are talking about lifting the arms embargo that currently exists between those countries, the United States, and China.

We do not send China our most sophisticated military equipment. There is a good reason for that. China has announced plans that it is developing military equipment that could directly compete with the United States in military conflict. So, obviously, we don't want to have a law on the books that would make it easy for a country such as China to acquire military equipment that we share freely with our allies, such as Australia and the United Kingdom, but which we would not want to go to a country such as China.

That is the reason for my concern about this retransfer issue. The news reports have indicated, for example, that the United Kingdom might agree to support the lifting of the European Union's arms embargo against China. That would be an important event. What my amendment would have done is simply said if the European Union were to lift its arms embargo against China, then no U.S. military equipment could be transferred to entities in the European Union unless the President certified to Congress that there are binding assurances from those entities that our military equipment would

not be transferred to China. That is a pretty reasonable proposition.

The State Department strongly opposes the European Union's lifting of the arms embargo. Secretary of State Colin Powell said the following on March 1:

Regarding arms sales to China, I expressed concern that the

European Union might lift its arms embargo. We and the

European Union imposed prohibitions for the same reasons,

most especially China's serious human rights abuses, and we

believe that those reasons remain valid today.

It is this government's policy that the arms embargo remain in effect. We are talking about military arms now, not trade. We have a huge amount of trade with China. We are not talking about that. We are talking about limiting certain kinds of militarily useful equipment.

At a February hearing of the U.S.-China Economic Security Review Commission, the Deputy Assistant Secretary in the State Department for East Asian and Pacific Affairs, Randy Shriver, also expressed U.S. opposition to the European Union's lifting of the embargo for three key reasons: the human rights reason, China's lax export control policies, and China's military buildup against Taiwan. Similar concerns have been put forth by Department of Defense officials.

While we don't like to talk about it, there has been a change in the direction of the buildup of the Chinese military. They have changed their doctrine to a doctrine which explicitly is designed to be able to defeat U.S. military assets. They are proliferating dangerous weapons and technologies to some of our potential adversaries--North Korea, as one example.

The intelligence community produces a semiannual report on proliferation. The most recent report stated the following with respect to China:

We cannot rule out . . . some continued contacts [related

to assistance to unsafeguarded nuclear facilities] subsequent

to the pledge between Chinese entities and entities

associated with Pakistan's nuclear weapons program.

. . . Chinese entities continued to work with Pakistan and

Iran on ballistic missile-related projects during the first

half of 2003 . . . Chinese-entity ballistic missile

assistance helped Iran move toward its goal of becoming self-

sufficient in the production of ballistic missiles. In

addition, firms in China provided dual-use missile-related

items, raw materials, and/or assistance to several other

countries of proliferation concern--such as Iran, Libya, and

North Korea.

During the first half of 2003, China remained a primary

supplier of advanced and conventional weapons to both

Pakistan and Iran. Islamabad also continued to negotiate with

Beijing for China to build up to four frigates for Pakistan's

navy and develop FC-1 fighter aircraft.

China also continues to threaten democratic Taiwan and to prepare militarily for a conflict against not only Taiwan, but also against the United States, were U.S. military forces to come to the assistance of Taiwan directly.

According to one recent Washington Post article, the Chinese Government warned Taiwan's President Chen Shui-bian to pull back what he called ``a dangerous lurch toward independence or face destruction.''

The Defense Department's annual report to Congress on the military power of the People's Republic of China warned

. . . the focus of China's short and medium term conventional

modernization efforts has been to prepare for military

contingencies in the Taiwan Strait, to include scenarios

involving U.S. intervention.

According to a previous report, the U.S.-China Security Review Commission, now the U.S.-China Economic and Security Review Commission, China's military was directed to have viable options to retake Taiwan by 2005 to 2007. Let me repeat: China's military was told to be prepared for conflict with Taiwan by next year.

The DOD report further comments on the impact of the EU lifting its arms embargo stating:

Efforts under way to lift the European Union embargo on

China will provide additional opportunities to acquire

specific technologies from Western suppliers.

That is precisely the problem I think we have to come to grips with at some point. I am extraordinarily supportive of efforts to show political support for and, in fact, enhanced military cooperation with our allies, as the Warner amendment certainly does. But I also think we have to look at the export control policies which might, were the European Union to lift the arms embargo, allow material weapons implications to reach a country such as China. We obviously cooperate with China on matters of trade, for example. And it plays an important role in the international community. But it is a country with 20 nuclear-tipped missiles capable of reaching the United States, and the Pentagon projects that number will reach 30 by next year.

It is a country that has an announced policy that would be very dangerous if implemented with respect to Taiwan. So if the EU lifts its arms embargo, European countries will have the capacity to willingly pass military technology, and U.S. military technology, if we don't have the proper transfer or retransfer protections in place to a country that presents a potential military threat to the United States.

My amendment would have prevented that from happening by simply saying that no U.S. military equipment could be provided to countries in the European Union unless there is a Presidential certification that there are binding assurances from such country that those goods won't be transferred to China.

I don't think that is too much to ask. I think at some point we are going to have to include that within our law. The chairman of the committee has been very gracious in talking to me about working toward that end. As I said, I think in view of the great importance of moving this bill forward, completing action on it so we can provide the authority for the Defense Department and the other forces necessary for the next year, I am not going to offer my amendment. I certainly hope at an appropriate time we will be able to include the concept of what I am talking about in this Defense authorization bill.

I compliment the chairman for the work he has done, and I express my hope we can conclude this bill soon. We have been on it now for almost a month, or half a month with respect to legislative days. I think it is time to come to an agreement on how to end debate and get it done. After all, we are in a war. We have to protect the American people and provide for the men and women we have put into harm's way for that purpose.

Mr. President, I answer the Senator from Utah, yes, I agree Congress would have to vote before a test could be conducted.

Mr. President, I rise today to introduce a bill that would authorize the Justice Department to issue judicially enforceable subpoenas in terrorism investigations.

Here is how the JETS Act would work: it would allow the FBI to subpoena documents and records ``in any investigation of a Federal crime of terrorism.'' The bill would require the FBI to go to Federal court to enforce the subpoena in the event that the recipient declines to comply with it. It would also allow the recipient to make the first move and go to court to challenge the subpoena. The JETS Act also would allow the Justice Department to temporarily bar the recipient of a JET subpoena from disclosing to anyone other than his lawyer that he has received it. The FBI could bar such disclosure, however, only if the Attorney General certifies that ``otherwise there may result a danger to the national security of the United States.'' Also, the recipient of the subpoena would have the right to go to court to challenge the nondisclosure order. And finally, the JETS Act would protect the recipient from any civil liability that might otherwise result from his good-faith compliance with a JET subpoena.

At the outset, it bears mention that the FBI already has ways of obtaining a subpoena when it needs one for a terrorism investigation: it simply finds an Assistant U.S. Attorney and asks him to issue a grand-jury subpoena to investigate a potential crime of terrorism. The advantages of the JETS Act--of giving the FBI direct authority to issue subpoenas--are not so much substantive as procedural. These advantages principally are two: 1. A grand-jury subpoena's ``return date''--the date by which the recipient of the subpoena is asked to comply--can only be a day on which a grand jury is convened. Therefore, a grand- jury subpoena issued on a Friday evening cannot have a return date that is earlier than the next Monday. The JETS Act would allow the FBI to set an earlier return date, so long as that date allows ``a reasonable period of time within which the records or items [to be produced] can be assembled and made available.'' 2. Only an AUSA can issue a grand- jury subpoena. Therefore, whenever the FBI wants to use a grand-jury subpoena in a terrorism case, it must find an AUSA. This can be difficult and time consuming in remote locations. The JETS Act would allow the FBI to forego this exercise.

The Justice Department recently made its case as to why it

should be given JETS authority in its answers to Senator

Biden's written questions to Christopher Wray, the Assistant

Attorney General for the Criminal Division, following Mr.

Wray's testimony before the Judiciary Committee on October

21, 2003. Senator Biden asked Mr. Wray to cite ``instances

where your terrorism investigations have been thwarted due to

an inability to secure a subpoena from a grand jury in a

timely fashion.'' While Mr. Wray declined to provide the

details of those instances when the lack of direct authority

has posed a problem, he did offer the ``following

hypothetical situations, which could well arise, [and which]

illustrate the need for this investigative tool:''

``In the first scenario, anti-terrorism investigators learn

that members of an Al Qaeda cell recently stayed at a

particular hotel. They want to know how the cell members paid

for their rooms, in order to discover what credit cards they

may have used. When investigators ask the hotel manager to

produce the payment records voluntarily, the manager declines

to do so, explaining that company policy prohibits him from

revealing such information about customers without legal

process. If investigators had the authority to issue an

administrative subpoena, the hotel manager could disclose the

records about the Al Qaeda cell immediately without fear of

legal liability. In this situation, where the speed and

success of the investigation may be matters of life and

death, this disclosure would immediately provide

investigators with crucial information--such as the location

of the terrorists and the nature of their purchases--with

which to disrupt and prevent terrorist activity.

``In the second hypothetical situation, anti-terrorism

investigators learn on a Saturday morning that members of an

Al Qaeda cell have bought bomb-making materials from a

chemical company. They want to obtain records relating to the

purchase that may reveal what chemicals the terrorists

bought, as well as delivery records that might reveal the

terrorists' location. The investigators might seek quickly to

contact an Assistant United States Attorney, who might

immediately obtain a grand-jury subpoena for the records.

However, the third party who holds the records could lawfully

refuse to furnish them until the subpoena's `return date,'

which must be on a day the grand jury is sitting. Because the

grand jury is not scheduled to meet again until Monday

morning, investigators may not be able to obtain the

information for two days--during which time the Al Qaeda cell

may execute its plot. If investigators had the authority to

issue an administrative subpoena, which can set a very short

or immediate response deadline for information, they may be

able to obtain the records immediately and neutralize the

cell.''

Mr. Wray concluded his answer by noting that ``[g]ranting FBI the use of [JETS authority] would speed those terrorism investigations in which subpoena recipients are not inclined to contest the subpoena in court and are willing to comply. Avoiding delays in these situations would allow agents to track and disrupt terrorist activity more effectively.''

To place the JETS Act in context, it bears noting that granting the FBI direct authority to issue subpoenas in terrorism cases would hardly be anomalous. As the Justice Department's Office of Legal Policy recently noted in a published report, ``Congress has granted some form of administrative subpoena authority to most federal agencies, with many agencies holding several such authorities.'' (Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities, Pursuant to Public Law 106-544, Section 7.) The Justice Department ``identified approximately 335 existing administrative subpoena authorities held by various executive-branch entities under current law.'' Ibid.

Among the more frequently employed of existing executive-subpoena authorities is 18 U.S.C. Sec. 3486's permission for the Attorney General to issue subpoenas ``[i]n any investigation of a Federal health care offense.'' According to the Public Law 106-544 Report, in the year 2001 the federal government used Sec. 3486 to issue a total of 2,102 subpoenas in health-care-fraud investigations. These subpoenas uncovered evidence of ``fraudulent claims and false

statements such as `upcoding,' which is billing for a higher level of service than that actually provided; double billing for the same visit; billing for services not rendered; and providing unnecessary services.''

Executive agencies already have direct subpoena authority for many types of investigations. Thus it would not be exceptional for Congress to grant the same authority to the FBI for terrorism cases. Indeed, as Mr. Wray noted in his above-cited answers to questions, ``[b]ecause of the benefits that administrative subpoenas provide in fast-moving investigations, they may be more necessary in terrorism cases than in any other type of investigation.'' One can hardly contend that although the federal government can use subpoenas to investigate Mohammed Atta if it suspects that he is committing Medicare fraud, it should not be allowed to use the same powers if it suspects that he is plotting to fly airplanes into buildings.

Granting direct subpoena authority to the FBI for terrorism cases first was proposed by the President last year, near the time of the second anniversary of the September 11 attacks. There is one criticism of the President's proposal that was made at that time that I believe needs to be addressed. The New York Times, in a September 14 story, described unnamed ``opponents'' as denouncing the proposal for ``allow[ing] federal agents to issue subpoenas without the approval of a judge or grand jury.''

This criticism reflects a misunderstanding of grand-jury subpoenas. The anonymous opponents of the President's proposal appear to be under the impression that the grand jury itself issues a grand-jury subpoena. This is not the case. Instead, a grand-jury subpoena is issued by an individual federal prosecutor, without any prior involvement by a judge or grand jury. As the U.S. Court of Appeals for the District of Columbia has noted, ``[i]t is important to realize that a grand jury subpoena gets its name from the intended use of the . . . evidence, not from the source of its issuance.'' Doe v. DiGenova, 779 F.2d at 80 n. 11 (1985).

Like the grand-jury subpoenas currently used to investigate potential crimes of terrorism, JET subpoenas also would be issued directly by investigators, without pre-approval from a court. It is thus important to keep in mind that a subpoena is merely a request for information--a request that cannot be enforced until its reasonableness has been reviewed by a federal judge. As Mr. Wray noted on behalf of the Justice Department in his answers to Senator Biden's questions:

The FBI could not unilaterally enforce an administrative

subpoena issued in a terrorism investigation. As with any

other type of subpoena, the recipient of an administrative

subpoena issued in a terrorism investigation would be able to

challenge that subpoena by filing a motion to quash in the

United States District Court for the district in which that

person or entity does business or resides. If the court

denied the motion to quash, the subpoena recipient could

still refuse to comply. The government would then be required

to seek another court order compelling compliance with the

subpoena.

This system guarantees protection for civil liberties. The courts take very seriously their role in reviewing subpoena-enforcement requests. As the Third Circuit has emphasized, ``the district court's role is not that of a mere rubber stamp, but of an independent reviewing authority called upon to insure the integrity of the proceeding.'' Wearly v. FTC, 616 F.2d at 665 (1980). The prospect of judicial oversight also inevitably restrains even the initial actions of executive agents. As the Public Law 106-544 Report notes, ``an agency must consider the strictures of [a motion to quash or a challenge to an enforcement order] before issuing an administrative subpoena.'' And finally, the system of separated authority to issue and review subpoenas has itself been recognized to guard civil liberties. The federal courts have found that ``[b]ifurcation of the power, on the one hand of the agency to issue subpoenas and on the other hand of the courts to enforce them, is an inherent protection against abuse of subpoena power.'' United States v. Security State Bank and Trust, 473 F.2d at 641 (5th Cir. 1973).

The administrative subpoena is a well-established investigative tool with built-in protections for civil liberties. Its use in antiterrorism investigations should not pose a threat to individual freedom.

Finally, although the constitutionality of a tool so frequently used for so long might safely be assumed, it nevertheless merits describing exactly why subpoena power is consistent with the Fourth Amendment. A thorough explanation recently was provided by Judge Paul Niemeyer of the U.S. Court of Appeals for the Fourth Circuit. As Judge Niemeyer noted, the use a subpoena does not require a showing of probable cause because a subpoena is not a warrant--it does not authorize an immediate physical intrusion of someone's premises in order to conduct a search. Rather, subpoenas are subject only to the Fourth Amendment's general reasonableness requirement--and they are reasonable in large part because of the continuous judicial oversight of their enforcement. As Judge Niemeyer stated in his opinion for the court in In re Subpoena Duces Tecum, 228 F.3d at 347-49 (2000) (citations omitted):

While the Fourth Amendment protects people ``against

unreasonable searches and seizures,'' it imposes a probable

cause requirement only on the issuance of warrants. U.S.

Const. amend. IV (``and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,'' etc.).

Thus, unless subpoenas are warrants, they are limited by the

general reasonableness standard of the Fourth Amendment

(protecting the people against ``unreasonable searches and

seizures''), not by the probable cause requirement.

``A warrant is a judicial authorization to a law

enforcement officer to search or seize persons or things. To

preserve advantages of speed and surprise, the order is

issued without prior notice and is executed, often by force,

with an unannounced and unanticipated physical intrusion.

Because this intrusion is both an immediate and substantial

invasion of privacy, a warrant may be issued only by a

judicial officer upon a demonstration of probable cause--the

safeguard required by the Fourth Amendment. See U.S. Const.

amend. IV (``no Warrants shall issue, but upon probable

cause''). The demonstration of probable cause to a neutral

judicial officer places a checkpoint between the Government

and the citizen where there otherwise would be no judicial

supervision.

``A subpoena, on the other hand, commences an adversary

process during which the person served with the subpoena may

challenge it in court before complying with its demands. As

judicial process is afforded before any intrusion occurs, the

proposed intrusion is regulated by, and its justification

derives from, that process.

``If [the appellant in this case] were correct in his

assertion that investigative subpoenas may be issued only

upon probable cause, the result would be the virtual end to

any investigatory efforts by governmental agencies, as well

as grand juries. This is because the object of many such

investigations--to determine whether probable cause exists to

prosecute a violation--would become a condition precedent for

undertaking the investigation. This unacceptable paradox was

noted explicitly in the grand jury context in United States

v. R. Enterprises, Inc., where the Supreme Court stated:

``[T]he Government cannot be required to justify the

issuance of a grand jury subpoena by presenting evidence

sufficient to establish probable cause because the very

purpose of requesting the information is to ascertain whether

probable cause exists.''

The U.S. Supreme Court first upheld the constitutionality of subpoena authority in 1911. United States v. Wilson, 31 S.Ct. at 542, concluded that ``there is no unreasonable search and seizure when a writ, suitably specific and properly limited in scope, calls for the production of documents which . . . the party procuring [the writ's] issuance is entitled to have produced.''

The Wilson Court also noted that the subpoena power has deep roots in the common-law tradition roots--that stretch at least to Elizabethan times:

``no doubt can be entertained that there must have been

some process similar to the subpoena duces tecum to compel

the production of documents, not only before [the] time [of

Charles the Second], but even before the statute of the 5th

of Elizabeth. Prior to that statute, there must have been a

power in the Crown (for it would have been utterly impossible

to carry on the administration of justice without such power)

to require the attendance in courts of justice of persons

capable of giving evidence, and the production of documents

material to the cause, though in the possession of a

stranger.''

The Supreme Court also has explicitly approved the use of subpoenas by executive agencies. In Oklahoma Press Pub. Co. v. Walling, 66 S.Ct. 494 (1946), the Court found that the investigative role of an executive official in issuing a subpoena ``is essentially the same as the grand jury's, or the court's in issuing other pretrial orders for the discovery of evidence.'' Nearly fifty years ago, the U.S. Supreme Court in Walling was able to conclude that

Fourth Amendment objections to the use of subpoenas by executive agencies merely ``raise[] the ghost of controversy long since settled adversely to [that] claim.''

Because granting direct subpoena authority to antiterror investigators would aid them in their important work, and would neither intrude upon civil liberties nor conflict with the Constitution, I propose the following bill, which would authorize judicially enforceable terrorism subpoenas.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise today to introduce a bill that would authorize the Justice Department to issue judicially enforceable subpoenas in terrorism investigations.

Here is how the JETS Act would work: it would allow the FBI to subpoena documents and records ``in any investigation of a Federal crime of terrorism.'' The bill would require the FBI to go to Federal court to enforce the subpoena in the event that the recipient declines to comply with it. It would also allow the recipient to make the first move and go to court to challenge the subpoena. The JETS Act also would allow the Justice Department to temporarily bar the recipient of a JET subpoena from disclosing to anyone other than his lawyer that he has received it. The FBI could bar such disclosure, however, only if the Attorney General certifies that ``otherwise there may result a danger to the national security of the United States.'' Also, the recipient of the subpoena would have the right to go to court to challenge the nondisclosure order. And finally, the JETS Act would protect the recipient from any civil liability that might otherwise result from his good-faith compliance with a JET subpoena.

At the outset, it bears mention that the FBI already has ways of obtaining a subpoena when it needs one for a terrorism investigation: it simply finds an Assistant U.S. Attorney and asks him to issue a grand-jury subpoena to investigate a potential crime of terrorism. The advantages of the JETS Act--of giving the FBI direct authority to issue subpoenas--are not so much substantive as procedural. These advantages principally are two: 1. A grand-jury subpoena's ``return date''--the date by which the recipient of the subpoena is asked to comply--can only be a day on which a grand jury is convened. Therefore, a grand- jury subpoena issued on a Friday evening cannot have a return date that is earlier than the next Monday. The JETS Act would allow the FBI to set an earlier return date, so long as that date allows ``a reasonable period of time within which the records or items [to be produced] can be assembled and made available.'' 2. Only an AUSA can issue a grand- jury subpoena. Therefore, whenever the FBI wants to use a grand-jury subpoena in a terrorism case, it must find an AUSA. This can be difficult and time consuming in remote locations. The JETS Act would allow the FBI to forego this exercise.

The Justice Department recently made its case as to why it

should be given JETS authority in its answers to Senator

Biden's written questions to Christopher Wray, the Assistant

Attorney General for the Criminal Division, following Mr.

Wray's testimony before the Judiciary Committee on October

21, 2003. Senator Biden asked Mr. Wray to cite ``instances

where your terrorism investigations have been thwarted due to

an inability to secure a subpoena from a grand jury in a

timely fashion.'' While Mr. Wray declined to provide the

details of those instances when the lack of direct authority

has posed a problem, he did offer the ``following

hypothetical situations, which could well arise, [and which]

illustrate the need for this investigative tool:''

``In the first scenario, anti-terrorism investigators learn

that members of an Al Qaeda cell recently stayed at a

particular hotel. They want to know how the cell members paid

for their rooms, in order to discover what credit cards they

may have used. When investigators ask the hotel manager to

produce the payment records voluntarily, the manager declines

to do so, explaining that company policy prohibits him from

revealing such information about customers without legal

process. If investigators had the authority to issue an

administrative subpoena, the hotel manager could disclose the

records about the Al Qaeda cell immediately without fear of

legal liability. In this situation, where the speed and

success of the investigation may be matters of life and

death, this disclosure would immediately provide

investigators with crucial information--such as the location

of the terrorists and the nature of their purchases--with

which to disrupt and prevent terrorist activity.

``In the second hypothetical situation, anti-terrorism

investigators learn on a Saturday morning that members of an

Al Qaeda cell have bought bomb-making materials from a

chemical company. They want to obtain records relating to the

purchase that may reveal what chemicals the terrorists

bought, as well as delivery records that might reveal the

terrorists' location. The investigators might seek quickly to

contact an Assistant United States Attorney, who might

immediately obtain a grand-jury subpoena for the records.

However, the third party who holds the records could lawfully

refuse to furnish them until the subpoena's `return date,'

which must be on a day the grand jury is sitting. Because the

grand jury is not scheduled to meet again until Monday

morning, investigators may not be able to obtain the

information for two days--during which time the Al Qaeda cell

may execute its plot. If investigators had the authority to

issue an administrative subpoena, which can set a very short

or immediate response deadline for information, they may be

able to obtain the records immediately and neutralize the

cell.''

Mr. Wray concluded his answer by noting that ``[g]ranting FBI the use of [JETS authority] would speed those terrorism investigations in which subpoena recipients are not inclined to contest the subpoena in court and are willing to comply. Avoiding delays in these situations would allow agents to track and disrupt terrorist activity more effectively.''

To place the JETS Act in context, it bears noting that granting the FBI direct authority to issue subpoenas in terrorism cases would hardly be anomalous. As the Justice Department's Office of Legal Policy recently noted in a published report, ``Congress has granted some form of administrative subpoena authority to most federal agencies, with many agencies holding several such authorities.'' (Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities, Pursuant to Public Law 106-544, Section 7.) The Justice Department ``identified approximately 335 existing administrative subpoena authorities held by various executive-branch entities under current law.'' Ibid.

Among the more frequently employed of existing executive-subpoena authorities is 18 U.S.C. Sec. 3486's permission for the Attorney General to issue subpoenas ``[i]n any investigation of a Federal health care offense.'' According to the Public Law 106-544 Report, in the year 2001 the federal government used Sec. 3486 to issue a total of 2,102 subpoenas in health-care-fraud investigations. These subpoenas uncovered evidence of ``fraudulent claims and false

statements such as `upcoding,' which is billing for a higher level of service than that actually provided; double billing for the same visit; billing for services not rendered; and providing unnecessary services.''

Executive agencies already have direct subpoena authority for many types of investigations. Thus it would not be exceptional for Congress to grant the same authority to the FBI for terrorism cases. Indeed, as Mr. Wray noted in his above-cited answers to questions, ``[b]ecause of the benefits that administrative subpoenas provide in fast-moving investigations, they may be more necessary in terrorism cases than in any other type of investigation.'' One can hardly contend that although the federal government can use subpoenas to investigate Mohammed Atta if it suspects that he is committing Medicare fraud, it should not be allowed to use the same powers if it suspects that he is plotting to fly airplanes into buildings.

Granting direct subpoena authority to the FBI for terrorism cases first was proposed by the President last year, near the time of the second anniversary of the September 11 attacks. There is one criticism of the President's proposal that was made at that time that I believe needs to be addressed. The New York Times, in a September 14 story, described unnamed ``opponents'' as denouncing the proposal for ``allow[ing] federal agents to issue subpoenas without the approval of a judge or grand jury.''

This criticism reflects a misunderstanding of grand-jury subpoenas. The anonymous opponents of the President's proposal appear to be under the impression that the grand jury itself issues a grand-jury subpoena. This is not the case. Instead, a grand-jury subpoena is issued by an individual federal prosecutor, without any prior involvement by a judge or grand jury. As the U.S. Court of Appeals for the District of Columbia has noted, ``[i]t is important to realize that a grand jury subpoena gets its name from the intended use of the . . . evidence, not from the source of its issuance.'' Doe v. DiGenova, 779 F.2d at 80 n. 11 (1985).

Like the grand-jury subpoenas currently used to investigate potential crimes of terrorism, JET subpoenas also would be issued directly by investigators, without pre-approval from a court. It is thus important to keep in mind that a subpoena is merely a request for information--a request that cannot be enforced until its reasonableness has been reviewed by a federal judge. As Mr. Wray noted on behalf of the Justice Department in his answers to Senator Biden's questions:

The FBI could not unilaterally enforce an administrative

subpoena issued in a terrorism investigation. As with any

other type of subpoena, the recipient of an administrative

subpoena issued in a terrorism investigation would be able to

challenge that subpoena by filing a motion to quash in the

United States District Court for the district in which that

person or entity does business or resides. If the court

denied the motion to quash, the subpoena recipient could

still refuse to comply. The government would then be required

to seek another court order compelling compliance with the

subpoena.

This system guarantees protection for civil liberties. The courts take very seriously their role in reviewing subpoena-enforcement requests. As the Third Circuit has emphasized, ``the district court's role is not that of a mere rubber stamp, but of an independent reviewing authority called upon to insure the integrity of the proceeding.'' Wearly v. FTC, 616 F.2d at 665 (1980). The prospect of judicial oversight also inevitably restrains even the initial actions of executive agents. As the Public Law 106-544 Report notes, ``an agency must consider the strictures of [a motion to quash or a challenge to an enforcement order] before issuing an administrative subpoena.'' And finally, the system of separated authority to issue and review subpoenas has itself been recognized to guard civil liberties. The federal courts have found that ``[b]ifurcation of the power, on the one hand of the agency to issue subpoenas and on the other hand of the courts to enforce them, is an inherent protection against abuse of subpoena power.'' United States v. Security State Bank and Trust, 473 F.2d at 641 (5th Cir. 1973).

The administrative subpoena is a well-established investigative tool with built-in protections for civil liberties. Its use in antiterrorism investigations should not pose a threat to individual freedom.

Finally, although the constitutionality of a tool so frequently used for so long might safely be assumed, it nevertheless merits describing exactly why subpoena power is consistent with the Fourth Amendment. A thorough explanation recently was provided by Judge Paul Niemeyer of the U.S. Court of Appeals for the Fourth Circuit. As Judge Niemeyer noted, the use a subpoena does not require a showing of probable cause because a subpoena is not a warrant--it does not authorize an immediate physical intrusion of someone's premises in order to conduct a search. Rather, subpoenas are subject only to the Fourth Amendment's general reasonableness requirement--and they are reasonable in large part because of the continuous judicial oversight of their enforcement. As Judge Niemeyer stated in his opinion for the court in In re Subpoena Duces Tecum, 228 F.3d at 347-49 (2000) (citations omitted):

While the Fourth Amendment protects people ``against

unreasonable searches and seizures,'' it imposes a probable

cause requirement only on the issuance of warrants. U.S.

Const. amend. IV (``and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,'' etc.).

Thus, unless subpoenas are warrants, they are limited by the

general reasonableness standard of the Fourth Amendment

(protecting the people against ``unreasonable searches and

seizures''), not by the probable cause requirement.

``A warrant is a judicial authorization to a law

enforcement officer to search or seize persons or things. To

preserve advantages of speed and surprise, the order is

issued without prior notice and is executed, often by force,

with an unannounced and unanticipated physical intrusion.

Because this intrusion is both an immediate and substantial

invasion of privacy, a warrant may be issued only by a

judicial officer upon a demonstration of probable cause--the

safeguard required by the Fourth Amendment. See U.S. Const.

amend. IV (``no Warrants shall issue, but upon probable

cause''). The demonstration of probable cause to a neutral

judicial officer places a checkpoint between the Government

and the citizen where there otherwise would be no judicial

supervision.

``A subpoena, on the other hand, commences an adversary

process during which the person served with the subpoena may

challenge it in court before complying with its demands. As

judicial process is afforded before any intrusion occurs, the

proposed intrusion is regulated by, and its justification

derives from, that process.

``If [the appellant in this case] were correct in his

assertion that investigative subpoenas may be issued only

upon probable cause, the result would be the virtual end to

any investigatory efforts by governmental agencies, as well

as grand juries. This is because the object of many such

investigations--to determine whether probable cause exists to

prosecute a violation--would become a condition precedent for

undertaking the investigation. This unacceptable paradox was

noted explicitly in the grand jury context in United States

v. R. Enterprises, Inc., where the Supreme Court stated:

``[T]he Government cannot be required to justify the

issuance of a grand jury subpoena by presenting evidence

sufficient to establish probable cause because the very

purpose of requesting the information is to ascertain whether

probable cause exists.''

The U.S. Supreme Court first upheld the constitutionality of subpoena authority in 1911. United States v. Wilson, 31 S.Ct. at 542, concluded that ``there is no unreasonable search and seizure when a writ, suitably specific and properly limited in scope, calls for the production of documents which . . . the party procuring [the writ's] issuance is entitled to have produced.''

The Wilson Court also noted that the subpoena power has deep roots in the common-law tradition roots--that stretch at least to Elizabethan times:

``no doubt can be entertained that there must have been

some process similar to the subpoena duces tecum to compel

the production of documents, not only before [the] time [of

Charles the Second], but even before the statute of the 5th

of Elizabeth. Prior to that statute, there must have been a

power in the Crown (for it would have been utterly impossible

to carry on the administration of justice without such power)

to require the attendance in courts of justice of persons

capable of giving evidence, and the production of documents

material to the cause, though in the possession of a

stranger.''

The Supreme Court also has explicitly approved the use of subpoenas by executive agencies. In Oklahoma Press Pub. Co. v. Walling, 66 S.Ct. 494 (1946), the Court found that the investigative role of an executive official in issuing a subpoena ``is essentially the same as the grand jury's, or the court's in issuing other pretrial orders for the discovery of evidence.'' Nearly fifty years ago, the U.S. Supreme Court in Walling was able to conclude that

Fourth Amendment objections to the use of subpoenas by executive agencies merely ``raise[] the ghost of controversy long since settled adversely to [that] claim.''

Because granting direct subpoena authority to antiterror investigators would aid them in their important work, and would neither intrude upon civil liberties nor conflict with the Constitution, I propose the following bill, which would authorize judicially enforceable terrorism subpoenas.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Madam President, I appreciate the chairman of the committee yielding time for me to respond to the amendment of our colleague, the Senator from Michigan. I will respond directly to some of the last points the Senator made as I get further into my remarks.

I begin by simply describing first of all the essence of this amendment and why it must be opposed. It would cut $515.5 million from the Missile Defense Program. That is over $\1/2\ billion. It adds that funding to a variety of other programs, all of which are adequately funded. We have added funding to some of them, and in some cases we could not even spend the money that would be allocated. I will get into those matters later.

Let me begin by discussing the harm that would be done to the Missile Defense Program--which we have all committed to pursuing under the Clinton administration--as a result of the adoption of the Levin amendment.

Specifically, as he described it, the amendment cuts funding for additional ground-based interceptors. These are missiles that go into the ground, primarily into the State of the Presiding Officer. This is the heart of our ground-based missile defense system.

The missile defense opponents contend we are spending too much money on a system that has not yet been proven to work, and they further claim that deployment is premature because, as the Senator from Michigan argued, operationally realistic testing has not been completed, and the administration, he contends, is not complying with U.S. acquisition laws that require such operational testing and evaluation.

We are complying with the law. There is no question about that. It appears that the objective critics want to achieve in demanding the missile defense system be operationally tested before deployment is actually to halt the program altogether. I will explain why.

The bottom line is we need the interceptors that would be eliminated as a result of eliminating this spending. We need them to do the very tests our critics are demanding be done. In other words, it is a Catch- 22: You have to do operational testing, but we are not going to give you the money to get the missiles to do the testing. That makes no sense.

Moreover, by adding these missiles to the first 20 that will be purchased, we have an additional capability to actually defend ourselves. I know that is troublesome to some, that we would actually be able to defend ourselves in the event that a nation accidentally launched a missile defense at us--and there are at least three or four countries today that could do that--or, God forbid, a country deliberately launched a missile defense at us.

So these missiles not only are available for testing but also would actually be able to defend the country for the first time since Ronald Reagan in 1983 announced our intention to work on a missile defense system. At that time, he said it could take decades, but I don't think he anticipated that we would research it to death; in other words, that we would be willing to spend more and more and more money but never, as they say in the military, bend metal; in other words, never actually produce the product that would

achieve the end result--in this case, a missile to defend ourselves.

Now, let me get to this question about operational testing because that is the essence of the amendment of the Senator from Michigan. The previous Director of Operational Test and Evaluation, Phillip Coyle, was quite critical of the National Missile Defense Program in the late 1990s because the NMD tests, in his opinion, lacked realism, not conducted under operational testing.

In fact, that was true. These tests are always launched from--the target is launched from Vandenberg Air Force Base in California toward the Pacific Ocean and the interceptor from the Reagan test site in the Pacific. I might add, I visited that test site last January. It is an incredible facility. They do their very best to replicate what might happen in a real world war. They are very good. But, they acknowledge, they are notified in advance that there is going to be an offensive missile launched, and, of course, they are quite prepared to launch the missile to intercept it. Naturally, they use the same geometrics. One cannot argue that this test range exactly replicates the exact circumstances under which an attack might come. That is quite obvious.

These tests that have been performed, and the most recent ones have been quite successful and confirm that all of the component parts work and it is possible to intercept a missile with a missile. Therefore, these developmental tests are very important to getting the program to the point where we can operationally test. Obviously, we do not want to deploy and test for the first time, so we go through this phase.

But there comes a time when we have to get the conditions more like they would actually be. We know that the best place to place missiles in the ground to defend against a probable attack is in the home State of the Presiding Officer--Alaska--simply because of its proximity to the locations where an offensive missile might come from and the geometrics of how we would intercept, which direction it would come from, and how we best intercept it.

It is a tad cold in the State of Alaska. In fact, the snow can get kind of high and ice can form over the top of the silos. Obviously, one thing we have to know how to do in the middle of the winter is to make sure we can blow the top off that silo and fire the missile up so it can intercept the offensive missile coming at us. That is just one example, but it makes the point that you do need to test in an operational situation, and that, of course, is precisely why we need to buy these additional missiles.

The Missile Defense Agency determined that we needed more realistic tests. It initiated an effort to develop and field an extensive missile defense test bed that would allow for operationally realistic testing. As the elements of test bed are put into place, they are tested. All of this is sequential. It is an ongoing process. Both the Director of Operational Test and Evaluation and the Commander of STRATCOM recognize the test bed will grow and mature over time as the elements of it are developed, fielded, and tested. This is the very essence of what spiral development is all about.

I have to discuss spiral development just briefly. This is the concept that we are able to evaluate and modify systems as we go along, as technology improves. The technology here is improving so rapidly and the potential enemies' technology so rapidly that it is never possible to wait until we know exactly what the enemy is going to throw at us and then begin work on a system that we can defeat it with. You have to be working right alongside what the enemy is doing and developing your program as you go along, adding the technology as it develops.

I might add, it is not the only program we do this with. The F-16 is a great fighter plane. It is trained at Luke Air Force Base in Arizona. I do not even recall which number of the F-16 we are on now. We started with the A model, and then the B model, and then the C model, and the E, and on and on, and each model improves the airplane. The F-16 flown today is a totally different airplane than the one designed over 20 years ago. As we develop new technology, we add that to the system.

Thus, the same with the missile defense system. You cannot wait until you can develop the perfect system and then begin building it and deploying it. By the time you did that, you would already be way behind the progress your potential enemy is making. So it is very natural, then, to allow this spiral development, especially in a program such as missile defense.

Where are we now? This fall we will field an initial operational missile defense capability at Fort Greeley, AK, and Vandenberg Air Force Base which will include just 20 interceptors. That is all. By the time this system is ready for operational alert, the Missile Defense Agency will have tested the operational configuration of the interceptor, the command, the control, the battle management and communications systems, as well as the interoperability and the performance of the needed sensors. Operational Test and Evaluation personnel from the Office of the Director of Operational Test and Evaluation have been fully engaged in the testing, along with the warfighters who will operate the system. So this is not just contractors going out there and seeing if they can make the system work. We are beyond that. That was done earlier. We are now at the stage of interoperability where Operational Test and Evaluation personnel and actual combat operators will be engaged in the testing.

So what is the alleged problem here? What Missile Defense wanted to do is stop the administration from acquiring the 20 interceptors it needs to complement the first 20 that, as has been noted, have been funded. Specifically, the request for fiscal year 2005 makes a downpayment on additional ground-based interceptors, interceptors Nos. 21 through 40. I would note, however, that the Senate Armed Services Committee-passed Defense authorization bill already cut long-lead procurement funding for interceptors Nos. 31 through 40. So we have already delayed the second 10 of this next 20 and made it more expensive, undoubtedly, to acquire by the action we have taken here.

So it is not as if we have not evaluated this and tried to figure out if we could save some money in the acquisition of these additional interceptors. We have done that. The Armed Services Committee did it, and it should be applauded for doing it.

What would this downpayment on this next 20--of which already the lead time has been cut by half, so we are now talking 10--what would it provide?

The first thing it would provide is additional test articles necessary, in the view of the Department of Defense, to conduct planned future integrated flight tests. So it is not as if we have already bought everything we need to conduct our testing.

Secondly, it would provide an expanded interceptor inventory to address the estimated growth in foreign ballistic missile threats from adversaries, such as North Korea and, perhaps, Iran.

Three, it would maintain a more steady industrial-base production line for the interceptors and the kill vehicles in case an expanded inventory is determined necessary.

And, four, it would provide ground site preparation activities for interceptors 21 through 30.

These things take time. It has been a couple of years since the people have been at work in the State of Alaska preparing these sites to accept the missiles that will be put in the silos, to put the radar and the other equipment up that is necessary to make this whole system work.

The additional cuts or restrictions that have been proposed here would cripple the effective deployment of the initial test bed system. That system, as I said, is absolutely essential if we are to conduct the more realistic testing everyone is calling for.

What does the head of Operational Test and Evaluation today say about this program? The Director, Thomas Christie, recently testified at a Senate Armed Services Committee hearing on missile defense, as the distinguished ranking member knows. Here is what he said:

. . . I think the issue we're talking about here is the

building of missiles that will be put into silos that are

part of the test bed, and we will have to have this test bed

in order to do some of the testing that will become more

realistic engagements, geometries, for example, than we've

been able to do before. And some of these attributes of this

test bed are in response to criticism that

came from my office and my predecessor in previous

administrations. . . .

In other words, making the point earlier that: Well, we have not gotten realistic enough in our testing yet. We are trying to respond to that. Yet this amendment would cut the funding for the missiles that are precisely necessary to do that.

The purchase of additional ground-based interceptors, which the critics of the system would like to prevent, will provide a rotatable pool of operational and test assets, and this, in turn, will allow the United States to field the most current interceptor improvements.

Now, the missile defense is a capabilities-based development program. The system under development is a spiral development program, as I described. There is, at this present time, no mature operational capability against which traditional or formal operational test and evaluation can be completed.

This is a key point General Kadish has made over and over. This is not like building another Navy destroyer or another Air Force fighter jet where we already have generations of previous such weapons and all we are doing is now developing the most recent technology. There is no missile defense. I know some Americans may not realize this, but if a missile were fired at us today, we could not stop it. We do not have a ballistic missile defense system--not one missile. So we are doing this for the first time. That is why we want to do it in this spiral development mode I have been describing.

Moreover, fielding a system before operational test and evaluation is not unprecedented. It has been done before in other cases where there was no similar capability as I have just described and also where an urgent need existed.

Let me give you some examples. One that is most recent, probably, is the Joint Surveillance and Target Attack Radar System aircraft. It is called JSTARS. It played an important role in the 1991 Persian Gulf war by providing warning to our forces on the ground when the Iraqi military was on the move.

Now, JSTARS was not an operational system. We did not have any of these aircraft at the time. It was in preproduction. We were just beginning to build the aircraft. We had not even begun the operational test and evaluation. Yet we realized we were in a war in which we needed to know where the enemy was going. I know something about this particular system because parts of it actually were produced by a company in my own State. Our military said: We have a system here. It has not gone through preproduction operational test and evaluation, but we might be able to get it configured and put together quickly enough to bring it over to the gulf and do you some good. And they did, and it did. It was invaluable. It had not gone through all this testing, but we were in an emergency situation, and it did its job. It did very well.

Other examples include the Predator and the Global Hawk unmanned aerial vehicles. Both have been very valuable assets in the war on terrorism. Yet they were deployed--into areas that we cannot discuss-- before there had been any operational test and evaluation. These were almost brandnew ideas. In fact, each vehicle was, in effect, a prototype. Yet our commanders figured out: We need some surveillance. Do you have anything that can help us out here? And sure enough, the contractor said: We do, but they're not ready to go. They haven't gone through all the testing.

The commanders in the field said: Bring them over. We need them. And they have done a terrific job.

A third example is the Patriot missile battery. This is an anti- aircraft missile battery. We found ourselves in the middle of the Persian Gulf war, and the Iraqis were firing scud missiles at us. There was no defense against scud missiles. Commanders said: Is there anything we can do?

The answer came: Well, we have these Patriot missiles. They are designed to shoot down aircraft. Maybe we can configure some radar to operate with the system and do some other things and possibly shoot down some of these scud missiles.

Literally, as they were bringing them across from America to Saudi Arabia and Kuwait, they were putting in fixes in the Patriot anti- aircraft system. You know the rest of the story. We began shooting down scud missiles with this system.

It wasn't perfect. It was not designed for this. We were constantly upgrading it. But I think estimates finally concluded we shot down maybe about a third--I have forgotten the exact number--of the Iraqi Scuds being fired against us. We needed it in an emergency. Nobody could have predicted necessarily that we needed that system at that time. You can't wait until you know that you have the threat sometimes. That is the same thing with missile defense.

I sometimes wonder if my colleagues would allow us to use one of these test missiles against--let's just say North Korea accidentally launched a missile at Alaska. Would they say, Sorry, this has not been operationally tested and evaluated? It hasn't gone through all the checks and balances, therefore, you can't use it?

No, of course not. We would use it to defend ourselves. So let's don't get into this argument that somehow you have to check all of these boxes in some certain order before you can even put the missile in the ground, A, to test it, and, B--God forbid if we had to--to use it. There is nothing wrong, there is nothing illegal about this. It has been done before. In fact, it has been proven necessary before.

I said it is in accord with acquisition laws. The Director of the Operational Test and Evaluation Program, Mr. Christie, has already testified that the program is, and this is a direct quote, ``living within the law.''

The Missile Defense Agency has not sought nor has it received any waiver for any acquisition statutes here. The missile defense authority is conducting tests that are increasingly operationally realistic, appropriate to the maturity of a system that is still under development. So there is nothing wrong with what is being done. But what has been set up is a catch-22. You can't deploy until you test, but the catch-22 is, you can't test without deploying.

Well, we are going to deploy, and hopefully we will buy enough missiles so we have the capability of doing the tests the way they need to be done.

I made the point that it would be nonsensical to argue this theory of operational testing being required to be completed before you could actually deploy a system and noted that no one would deny us the right to use such a system in self-defense if we had to do that. It is, in fact, true that there are countries that have this capability today. It is also true that maybe this isn't today the threat that is most likely to occur, but we know--without getting into a lot of detail--there are countries that have had systems for some time. We are not certain necessarily of the safety and reliability of those systems, the ability for those systems to not be accidentally launched or for somebody else to intentionally launch them notwithstanding the custody and the state in which they are located. If there were such an accident, we would need to have the capability against it.

We face that threat today because, as I said, there are countries in this world that have operational systems that can reach the United States. Some of them are not friendly to the United States either. I repeat, today we have no defense against a ballistic missile attack. That is why President Bush, when he came into office, decided to pursue this spiral development, this notion that we will try to get the best we can out there as quickly as we can.

That will serve three purposes. First, it will enable us to defend ourselves if we had to as quickly as possible. And he set this fall as the target date for that deployment. In fact, we are going to be able to meet that date. I hope the Presiding Officer is able to be in her State because she and the other Senator from the great State of Alaska have been indefatigable in their efforts to make sure the program goes forward. We will actually be able to defend ourselves if there were an accidental or, as I said, an intentional launch against us.

Secondly, it enables us to do this operational testing under realistic conditions.

And there is a third point. This is very important. It is a deterrent. We want other countries to do what Muammar Qadhafi did. We want these

other countries to say: It is costing us a lot of money to try to develop this nuclear program. At the end of the day, the United States is probably going to be able to beat us. We might as well not go through the cost and the effort to try to develop it. Deterrence.

Let me read what very recently, just before the Reagan funeral, Genadi Garasimov, spokesman for the former Soviet leader Mikhail Gorbachev, had to say:

I see President Reagan as a grave digger of the Soviet

Union and the spade that he used to prepare this grave was

SDI, the Strategic Defense Initiative, so-called Star Wars.

The trick was that the Soviet leadership believed that this

SDI defense is possible and then, because it is possible,

that also we must catch up with the Americans. And this was

an invitation to the arms race and the Soviet economy could

not really afford it. In this way Reagan really contributed

to the demise of the Soviet Union.

It worked. President Reagan was not bluffing. He meant to deploy this system. At Reykjavik, when Gorbachev said: We can make this arms deal we have been talking about, if you will do one more thing. If you will stop development of your SDI program, we have a deal.

President Reagan thought about it overnight, came back the next morning and said: I am sorry. The United States is going to proceed with missile defense.

Gorbachev knew at that moment it was over. They could not compete with us, and it wasn't obviously worth the effort to try to do so because they knew the technology of the United States could produce a defense against the only real weapon that the Soviet Union had that could defeat us, and that was the ballistic missile.

The point of telling the story is that we need to let others like Muammar Qadhafi understand the fact that we are not bluffing. We mean it. We are going to deploy the system and it is going to work and defeat them and they might as well not go through all the time and effort and expense to develop offensive missiles to try to reach the United States because it won't work. We are going to be able to shoot them down. So don't bother to do it.

This is a nonproliferation or antiproliferation program. By moving forward in a robust way with the expenditure of this money and letting them know that we mean business, that we are not bluffing, I believe we will deter countries from continuing the development of their programs or putting more money into their programs. We don't need to get into all of the countries that we might be talking about today. Some are perhaps, if not allies, at least not enemies of the United States today. Others are potential enemies.

The point is, we don't want to encourage anyone to believe that we are not serious about moving forward with this program. With all due respect, this amendment would send that signal. We have cut the money for the long lead funding on the third tranche of missiles. This would say: Let's just totally eliminate the funding, a half a billion dollars, for these 10 missiles. It begins to send the message that we are going to research forever but build never. That is a message we cannot afford to send.

What we are doing is consistent with the 1999 Missile Defense Act which declared, and I quote, that ``it is the policy of the United States to deploy as soon as is technologically possible an effective national missile defense system capable of defending the territory of the United States against limited ballistic missile attack.''

That is the law. That is what we need to do. If we have the technology to do it, it would be more than negligent; it would be criminal for our government not to do so. If you have the ability to do it, it is the moral thing to do as well.

As Ronald Reagan said many times: I would much rather be able to defeat an enemy missile than to have to rely upon a nuclear deterrent and mutually destroy each other.

It is unthinkable in today's world that we would have to do that when we have the technological option of missile defense. Given the nature of the threat posed, given our technological capability at this point and each year our increasing ability to improve, this is the only responsible course of action.

We have already defeated, in effect, this same amendment before, the Reid amendment, based on the same argument about operational testing. But it only fenced the funding for these missiles. The Levin amendment virtually eliminates the funding and would spend it on other things.

I suggest if we were willing to reject the Reid amendment, which merely fenced the funding, it would logically follow that we would even more likely reject the Levin amendment, which does away with all of the funding. What he has done is to distinguish from the Reid amendment by taking this half billion dollars and spreading it around to some other programs. That is the essential difference. I will turn to that next. His argument is that we need to look at priorities, and that right now it might be easier for some terrorists to bring a weapon of mass destruction into this country than to launch it on a ballistic missile.

In the first place, that is wrong. There are countries today that have the perfect capability of launching a ballistic missile with a nuclear warhead at the United States, and we have no defense against it whatsoever. So the argument is incorrect.

Now, it is true that a terrorist organization may want to do it in a different way. But if it could get hold of a missile, I suggest it would do it. Take the case of Pakistan, which is a very great ally of the U.S. today but a country with ballistic missiles. I hope that country will always have control over those missiles and have a leader of the quality of President Musharraf. But what would happen if it didn't? Terrorists can do things in lots of different ways, that is true, and that is a point the Senator from Michigan made. My subcommittee on terrorism technology held hearings on container security, and it is true that we don't have perfect security at our ports and we need to spend more money and we need to do better at looking at the different ways in which terrorism can strike the United States. That is all very true. The question is whether our priorities are right.

The Defense bill we are debating on the Senate floor tonight spends approximately $420 billion for next year. The Senator from Michigan would almost make it seem as if the only thing we are doing is spending money on missile defense, and that we have to get off of that priority because there are other higher priorities. How much are we spending on that? It is $10 billion. Out of a $420 billion Defense bill, we are spending $10.2 billion on missile defense, and only a half billion of that is on the program we are talking about.

So it is hardly a matter of taking all our defense money and putting it on a program that we should not be spending it on. Out of $420 billion, we are spending a half billion dollars on what the Senator from Michigan would strike. What are the higher priorities? The Senator says homeland security. Indeed, if you add the money in this bill and the other homeland security money on homeland security that is being authorized for this next year, it is more than $47 billion. That is 15 percent over last year and 130 percent over fiscal year 2002.

If you want to make the argument that as a matter of priority we should be spending more on homeland security than these 10 missiles, well, we are. It is $47 billion-plus versus a half billion dollars. I will repeat it. It is more than $47 billion versus the half billion dollars that the Senator from Michigan would strike from this program.

So I don't think we need to worry about priorities. In fact, I think the money that would be taken from the Missile Defense Program, and could literally cripple it, is already covered; that is to say, each of the programs to which the funding is added are already covered. We have already increased spending on 6 of the 10 programs to which the money would go. The bill has already added to the President's requested levels only the following programs: cruise missile defense, $80 million; blast mitigation R&D, $10 million added; radiation and nuclear detection, $5 million; modeling and simulation efforts to increase capability of fielded chemical-biological standoff detection systems, adding $2 million; nonproliferation verification R&D, $25 million; aircrew masks, a half-million-dollar procurement in the chem-bio defense program.

In all of the other programs and funding areas addressed in the Levin

amendment, the committee provided the requested level of funding. So what the administration requested, the committee gave them. So they added to the request in six, and in all of the others they are getting exactly what they had requested. In one area, the NORTHCOM military assistance to civil authorities, NORTHCOM indicates that it has no responsibility in the area.

For two potential adds, the execution of additional funding would be problematic. They probably could not spend the money. One is the Global Threat Reduction Initiative. It is a new NNSA nonproliferation initiative that was announced in May. They expect to fund it out of existing funds from the $87 million in fiscal 2005. An additional $211 million, as proposed in this amendment, would not be executable in fiscal 2005. They could not spend it.

On radiation detection and training in megaports, additional funds cannot be executed until agreements are negotiated with other nations. NNSA doesn't expect that these agreements could be in place in time to use additional funds in fiscal 2005.

The Department of Defense already has the flexibility with the funds requested within the budget to meet the high-priorities needs: antiterrorism/force protection training and exercises for the National Guard. These activities are funded through operation and maintenance, and the Department can already align the requested O&M funds to meet their needs.

The bottom line is that the additional funding taken away from missile defense is not needed. The arguments for taking it away have already been rejected by the Senate in the Reed amendment. This is just another attempt to research missile defense to death and never build it.

I encourage my colleagues to follow the good instinct that they followed with respect to the Reed amendment and reject this notion that we should not have more than the 20 missiles; that we don't need the additional 10 we are talking about here for operational testing because we do need to test against realistic conditions, and that is why we need to obtain the missiles and put them in these silos, and also because they just might be needed.

For once, it would be nice for us to say that on our watch the missile defense that was announced 20 years ago has actually become a reality. It is not a perfect system yet by any means, and that is the whole point of this particular program--to begin the development and deployment and spiral that technology as it continues to evolve. That is a great idea. It is a great protection for the American people. Why would we not want to do it?

With respect to the prioritization argument, I have already made it clear what we are spending on this. I didn't calculate the fraction, but it is a minor fraction of what we are spending on homeland security and on defense generally.

I urge my colleagues, as with the Reed amendment, to reject the argument behind this amendment; reject the Levin amendment and support the committee, which worked very hard to put together a product of which I think the Senate can be proud, that the administration will support, that we can get passed in conference committee and sent to the President for his signature, so we can move forward this year and, for the first time, this fall actually have the beginnings of a missile defense system for the people of this country. They deserve no less. It is our obligation to see to it that it comes to pass.

That is the conclusion of my remarks. I don't know if the Senator from Michigan wants to make further remarks at this time. I am going to want to proffer a unanimous consent request.

At this time, I yield to the Senator from Michigan.

Madam President--

Madam President, I have not checked to see what the current plan is with respect to the timing of the tests and with respect to the missiles that are included within the program, which I think the Senator is talking about, which are the first 20 missiles.

Let me first correct one thing I had said earlier. There were two Reed amendments, both of which were based on the same proposition with respect to operational testing. One regarding fencing we have not yet voted on, and the other one was rejected. To that extent I misspoke.

Secondly, before I propound the unanimous consent requests, let me make clear to the Senator from Michigan, I am not yet aware of plans, as I answered my colleague. I think the Director of the Ballistic Missile Defense Organization is working on the plans. So I do not think any of us are yet aware of what plans there may be with respect to testing of these missiles. I do not think the plan is completed.

Madam President, I knew if we stood here long enough, the Senator from Michigan and I would find something on which to agree.

Madam President, of course that is true. I would like to propound some unanimous consent requests on behalf of the leader, if there is no other Senator wishing to speak to this matter.

Madam President, I ask unanimous consent that the Senate now proceed to a period for the transaction of morning business, with Senators permitted to speak for up to 10 minutes each.