Floor Statements

Mr. President, I join my colleagues in celebrating the first anniversary of the Jobs and Growth Tax Reconciliation Act of 2003, which was signed into law by President Bush on May 28, 2003. Also, I want to announce that today I am introducing legislation to make the dividends and long-term capital gains tax cuts permanent.

It has been one year since Congress and President Bush joined together to enact pro-growth, supply-side tax cuts. Now, since some in the Senate are proposing that we repeal the tax cuts--this would be one of the largest tax increases in history--let's review the impact these cuts have had on our economy.

The 2003 tax cuts have triggered the fastest growing economy in two decades. Real gross domestic product grew at an annual rate of 8.2 percent in the third quarter of 2003, 4.1 percent in the fourth quarter, and 4.4 percent in the first quarter of 2004. If we sustain this pace, our economy will double in 13 years. When the tax cuts were enacted last year, the national unemployment rate was 6.3 percent. Today, it has dropped nearly 11 percent to 5.6 percent, which is lower than the average unemployment rate of the 1970s, 1980s, and 1990s. A growing economy means good, high-paying jobs and a better quality of life for all Americans.

I want to draw my colleagues' attention to research published by the National Bureau of Economic Research (NBER)--the Nation's leading nonprofit economic research organization. This study demonstrates that the 2003 tax cuts corrected a terrible mistake we made in 2001 when we phased in the marginal rate cuts. The phase-in of the 2001 tax cuts prompted workers and firms to delay work until the tax cuts were fully implemented. Employment, output, and investment actually fell in response to the phased-in tax cuts.

The NBER study found that, ``Just as the phased-in nature of the 2001 tax law may have delayed production and employment, the immediate tax relief included in the 2003 law may have contributed towards the increased pace of economic activity in the second half of 2003.'' I am confident that, as more economic data comes in and as the 2003 tax cuts are studied further, we will find that the 2003 tax cuts are directly responsible for the economic growth we are seeing today.

The NBER study demonstrates that individuals really do delay economic activity in anticipation of lower future tax rates. It also corroborates the theory that high marginal tax rates cause individuals to restrict economic activity in order to minimize the tax burden imposed on their next dollar earned. Because the tax cuts were accelerated in 2003, individuals had an incentive to work harder and longer immediately because their next dollar of income would be taxed at a lower rate.

Among the taxpayers benefited by the reductions in the individual rate are America's small businesses. The top individual rate is often called the small business rate because most small businesses are organized as pass-through entities, which pay at individual rates. Owners of pass-through entities, including small business owners and entrepreneurs, comprise more than two-thirds, about 500,000, of the 750,000 tax returns that benefited from speeding up the reduction in the top tax bracket. These small business owners received 79 percent, about $10.4 billion, of the $13.3 billion in tax relief from accelerating the reduction in the top tax bracket to 35 percent.

The task for us now is to make the individual rate reductions permanent. If Congress fails to act, the tax cuts will expire at the end of 2010. The bottom rate would increase from 10 percent to 15 percent, an increase of 33 percent; the top rate would increase from 35 percent to 39.6 percent, an increase of 11 percent. The effect such tax increases would have on our economy would be devastating.

Not only did Congress and President Bush work together to bring down individual income tax rates, but we also reduced the tax on dividend distributions and long-term capital gains. Before the 2003 tax cuts, our tax code actually discouraged dividend payouts. The 2003 tax cut lowered the tax rate imposed on dividends from 38.6 percent to 15 percent through 2008. Before 2003, corporate earnings were taxed once at the corporate level, 35 percent, and again at the individual rate, as high as 38.6 percent, meaning they were double-taxed. It made no sense for investors to seek out dividend-paying stocks, from a tax perspective.

While dividends are still double-taxed, the tax penalty is greatly reduced. This has made dividend-paying stocks more attractive to investors, which has helped companies raise capital to expand and grow their businesses. Further, because dividends must be paid from cash, companies that pay dividends must have actual profits, thus making it more difficult for companies to hide financial mismanagement.

Some of my colleagues want to repeal the dividend tax cut. This is obviously misguided, since we have strong evidence that the dividend tax cut has worked. Since the 2003 tax cut was signed into law, 374 companies on the S&P 500 pay dividends--an increase of 22 companies. Companies have increased dividend payments to shareholders by 40 percent, reversing a two-decade decline. The Dow Jones Industrial index has risen more than 1,400 points since the 2003 tax cuts were signed into law.

Similarly the capital gains tax cut has also encouraged economic growth. It reduced the tax imposed on long-term capital gains from 20 percent to 15 percent. This has made it more attractive for individuals to risk their hard-earned money by investing it in businesses. The result is that it is easier for businesses to raise needed capital to expand and create new jobs. Stock market gains, the strong GDP we have experienced, and falling unemployment all indicate that the economy has recovered.

Now, to help our economy to continue to grow and create new jobs, the dividend and capital gains tax cuts must be made permanent. If we allow the dividend rate to return to the individual rate, we will increase taxes on dividends by 62 percent. Allowing the capital gains rate to return to 20 percent will be a 25 percent tax increase. We must make the 15 percent rate for each permanent, and then we must work to reduce both the dividends and the capital gains rates to zero, so that we eliminate the double-taxation of corporate earnings. The Senate bill actually would have brought the dividend tax rate to zero for three years, but the agreement that we worked out with the House was to tax dividends at 15 percent. The dividends and capital gains tax relief will expire in 2009.

The most important thing we can do next year is make the 2003 tax cuts permanent. Today I am introducing legislation that will make the dividends and capital gains tax relief permanent. I will work to make the individual income tax rate cuts permanent as well. To allow the tax cuts to expire--or worse, to seek to higher taxes at the very time our economy has pulled out of the recession and is growing strong--would be unthinkable.

Mr. President, I join my colleagues in celebrating the first anniversary of the Jobs and Growth Tax Reconciliation Act of 2003, which was signed into law by President Bush on May 28, 2003. Also, I want to announce that today I am introducing legislation to make the dividends and long-term capital gains tax cuts permanent.

It has been one year since Congress and President Bush joined together to enact pro-growth, supply-side tax cuts. Now, since some in the Senate are proposing that we repeal the tax cuts--this would be one of the largest tax increases in history--let's review the impact these cuts have had on our economy.

The 2003 tax cuts have triggered the fastest growing economy in two decades. Real gross domestic product grew at an annual rate of 8.2 percent in the third quarter of 2003, 4.1 percent in the fourth quarter, and 4.4 percent in the first quarter of 2004. If we sustain this pace, our economy will double in 13 years. When the tax cuts were enacted last year, the national unemployment rate was 6.3 percent. Today, it has dropped nearly 11 percent to 5.6 percent, which is lower than the average unemployment rate of the 1970s, 1980s, and 1990s. A growing economy means good, high-paying jobs and a better quality of life for all Americans.

I want to draw my colleagues' attention to research published by the National Bureau of Economic Research (NBER)--the Nation's leading nonprofit economic research organization. This study demonstrates that the 2003 tax cuts corrected a terrible mistake we made in 2001 when we phased in the marginal rate cuts. The phase-in of the 2001 tax cuts prompted workers and firms to delay work until the tax cuts were fully implemented. Employment, output, and investment actually fell in response to the phased-in tax cuts.

The NBER study found that, ``Just as the phased-in nature of the 2001 tax law may have delayed production and employment, the immediate tax relief included in the 2003 law may have contributed towards the increased pace of economic activity in the second half of 2003.'' I am confident that, as more economic data comes in and as the 2003 tax cuts are studied further, we will find that the 2003 tax cuts are directly responsible for the economic growth we are seeing today.

The NBER study demonstrates that individuals really do delay economic activity in anticipation of lower future tax rates. It also corroborates the theory that high marginal tax rates cause individuals to restrict economic activity in order to minimize the tax burden imposed on their next dollar earned. Because the tax cuts were accelerated in 2003, individuals had an incentive to work harder and longer immediately because their next dollar of income would be taxed at a lower rate.

Among the taxpayers benefited by the reductions in the individual rate are America's small businesses. The top individual rate is often called the small business rate because most small businesses are organized as pass-through entities, which pay at individual rates. Owners of pass-through entities, including small business owners and entrepreneurs, comprise more than two-thirds, about 500,000, of the 750,000 tax returns that benefited from speeding up the reduction in the top tax bracket. These small business owners received 79 percent, about $10.4 billion, of the $13.3 billion in tax relief from accelerating the reduction in the top tax bracket to 35 percent.

The task for us now is to make the individual rate reductions permanent. If Congress fails to act, the tax cuts will expire at the end of 2010. The bottom rate would increase from 10 percent to 15 percent, an increase of 33 percent; the top rate would increase from 35 percent to 39.6 percent, an increase of 11 percent. The effect such tax increases would have on our economy would be devastating.

Not only did Congress and President Bush work together to bring down individual income tax rates, but we also reduced the tax on dividend distributions and long-term capital gains. Before the 2003 tax cuts, our tax code actually discouraged dividend payouts. The 2003 tax cut lowered the tax rate imposed on dividends from 38.6 percent to 15 percent through 2008. Before 2003, corporate earnings were taxed once at the corporate level, 35 percent, and again at the individual rate, as high as 38.6 percent, meaning they were double-taxed. It made no sense for investors to seek out dividend-paying stocks, from a tax perspective.

While dividends are still double-taxed, the tax penalty is greatly reduced. This has made dividend-paying stocks more attractive to investors, which has helped companies raise capital to expand and grow their businesses. Further, because dividends must be paid from cash, companies that pay dividends must have actual profits, thus making it more difficult for companies to hide financial mismanagement.

Some of my colleagues want to repeal the dividend tax cut. This is obviously misguided, since we have strong evidence that the dividend tax cut has worked. Since the 2003 tax cut was signed into law, 374 companies on the S&P 500 pay dividends--an increase of 22 companies. Companies have increased dividend payments to shareholders by 40 percent, reversing a two-decade decline. The Dow Jones Industrial index has risen more than 1,400 points since the 2003 tax cuts were signed into law.

Similarly the capital gains tax cut has also encouraged economic growth. It reduced the tax imposed on long-term capital gains from 20 percent to 15 percent. This has made it more attractive for individuals to risk their hard-earned money by investing it in businesses. The result is that it is easier for businesses to raise needed capital to expand and create new jobs. Stock market gains, the strong GDP we have experienced, and falling unemployment all indicate that the economy has recovered.

Now, to help our economy to continue to grow and create new jobs, the dividend and capital gains tax cuts must be made permanent. If we allow the dividend rate to return to the individual rate, we will increase taxes on dividends by 62 percent. Allowing the capital gains rate to return to 20 percent will be a 25 percent tax increase. We must make the 15 percent rate for each permanent, and then we must work to reduce both the dividends and the capital gains rates to zero, so that we eliminate the double-taxation of corporate earnings. The Senate bill actually would have brought the dividend tax rate to zero for three years, but the agreement that we worked out with the House was to tax dividends at 15 percent. The dividends and capital gains tax relief will expire in 2009.

The most important thing we can do next year is make the 2003 tax cuts permanent. Today I am introducing legislation that will make the dividends and capital gains tax relief permanent. I will work to make the individual income tax rate cuts permanent as well. To allow the tax cuts to expire--or worse, to seek to higher taxes at the very time our economy has pulled out of the recession and is growing strong--would be unthinkable.

Mr. President, this morning, the Senate will conduct a period of morning business for up to 60 minutes, with the Democratic leader or his designee in control of the first 30 minutes and the majority leader or his designee in control of the final 30 minutes. Following morning business, the Senate will resume consideration of the Department of Defense authorization bill.

Chairman Warner and Senator Levin will be here all day, working through amendments. As the leader announced last night, we were able to lock in a finite list of first-degree amendments to the bill, and Senators are encouraged to work with the bill managers so we can finish this bill this week or early next week.

On behalf of the leader, I remind Senators that the Senate will stand in recess from 12:30 p.m. to 2:15 p.m. to accommodate the Democratic policy luncheon, and that at 5 p.m. there will be a reception honoring Senators Akaka, Hollings, Inouye, Lautenberg, Stevens, and Warner, who are all veterans of the Second World War. We will devote the hour prior to the reception for speeches honoring their service.

Order of Procedure

I now ask unanimous consent that there be a period of morning business today from 4 to 5 p.m., with the time equally divided between the two leaders or their designees.

Mr. President, I rise today to introduce a bill that would repeal Sec. 224 of the USA Patriot Act. Section 224 provides that 16 different parts of the Patriot Act ``shall cease to have effect on December 31, 2005.'' The authorities subject to this sunset include some of the most important provisions of the Act. They are sections 201, wiretapping in terrorism cases; 202, wiretapping in computer fraud and abuse felony case; 203(b) sharing wiretap information; 203(d), sharing foreign intelligence information; 204, Foreign Intelligence Surveillance Act (FISA) pen register/trap and trace exceptions; 206, roving FISA wiretaps; 207, duration of FISA surveillance of non-United States persons who are agents of a foreign power; 209, seizure of voice-mail messages pursuant to warrants; 212, emergency disclosure of electronic surveillance; 214, FISA pen register/ trap and trace authority; 215, FISA access to tangible items; 217, interception of computer trespasser communications; 218, purpose for FISA orders; 220, nationwide service of search warrants for electronic evidence; 223, civil liability and discipline for privacy violations; and 225, provider immunity for FISA wiretap assistance.

Rather than praise the Patriot Act myself, I would like to quote others who have done so. First, I would note that the President has called on Congress to renew all parts of the Patriot Act that are scheduled to expire next year. As he has emphasized, ``to abandon the Patriot Act would deprive law enforcement and intelligence officers of needed tools in the war on terror, and demonstrate willful blindness to a continuing threat.''

FBI Director Robert Mueller, in a hearing before the Judiciary Committee yesterday, also voiced strong support for renewing the Patriot Act. As he noted, ``for over two and a half years, the PATRIOT Act has proved extraordinarily beneficial in the war on terrorism and has changed the way the FBI does business. Many of our counterterrorism successes, in fact, are the direct results of provisions included in the Act, a number of which are scheduled to `sunset' at the end of next year. I strongly believe it is vital to our national security to keep each of these provisions intact.''

Similarly, in an April 14 field hearing before the Judiciary Committee, Deputy Attorney General James Comey stated that the Patriot Act ``has made us immeasurably safer.'' He also responded to the allegation, occasionally made by some critics, that the Patriot Act was passed too quickly. He replied that ``the USA Patriot Act was not rushed, it actually came 10 years too late.''

The importance of the Patriot Act to American security also has drawn the attention of the 9/11 Commission. Former New Jersey Governor Thomas Kean has noted that the Commission has had ``witness after witness tell us that the Patriot Act has been very, very helpful, and if the Patriot Act, or portions of it, had been in place before 9/11, that would have been very helpful.''

This praise has not been limited to the Republicans who have participated in the Commission's proceedings. Former Attorney General Janet Reno, for example, testified before the Commission that ``everything that's been done in the Patriot Act has been helpful.''

Nor is President Bush alone among the major candidates for President this year in hailing the importance of the Patriot Act. Indeed, his principal rival for the office, Senator Kerry, recently claimed that he would go even further than the President. According to an April 25 story in the Los Angeles Times, Senator Kerry's spokesman insists that ``it is the challenger, not the president, who brings the most muscular view of the Patriot Act into the race.'' Senator Kerry's presidential campaign website even includes a ``Plan to Restore American Security,'' which lists as its number-one priority to ``improve intelligence capabilities.'' Senator Kerry states that he ``understands that intelligence information is the key to disrupting and dismantling terrorist organizations and that we need to improve our intelligence capabilities, both domestically and internationally, in order to win the war on global terrorism.''

One reform implemented by the Patriot Act that Attorney General Reno and others have particularly emphasized is its authorization for information sharing. Because this part of the Patriot Act is often praised but infrequently described in detail, I would like to quote the following accounts of pre-Patriot barriers to information sharing, and of the investigative successes that the removal of those barriers has made possible.

The FISA Court of Review decision upholding the Patriot Act's authorization for information sharing, In re: Sealed Case, 310 F.3d 717,

F.I.S. Ct. Rev. 2002 , describes the origins of the pre-Patriot

barriers:

Apparently to avoid running afoul of the primary purpose

test used by some courts, the 1995 [Attorney General]

Procedures [(``Procedures for Contacts Between the FBI and

the Criminal Division Concerning Foreign Intelligence and

Foreign Counterintelligence Investigations'')] limited

contacts between the FBI and the Criminal Division in cases

where FISA surveillance or searches were being conducted by

the FBI for foreign intelligence (FI) or foreign

counterintelligence (FCI) purposes. The procedures state that

``the FBI and Criminal Division should ensure that advice

intended to preserve the option of a criminal prosecution

does not inadvertently result in either the fact or the

appearance of the Criminal Division's directing or

controlling the FI or FCI investigation toward law

enforcement objectives.'' Although these procedures provided

for significant information sharing and coordination between

criminal and FI or FCI investigations, based at least in part

on the ``directing or controlling'' language, they eventually

came to be narrowly interpreted within the Department of

Justice, and most particularly by OIPR, as requiring OIPR to

act as a ``wall'' to prevent the FBI intelligence officials

from communicating with the Criminal Division regarding

ongoing FI or FCI investigations. Thus, the focus became the

nature of the underlying investigation, rather than the

general purpose of the surveillance. Once prosecution of the

target was being considered, the procedures, as interpreted

by OIPR in light of the case law, prevented the Criminal

Division from providing any meaningful advice to the FBI.''

In re: Sealed Case, 310 F.3d at 727-28 citations omitted.

FBI Director Mueller, in his testimony yesterday, provided a concrete account of the impact that these information-sharing barriers had on intelligence investigations:

Prior to September 11, an [FBI] Agent investigating the

intelligence side of a terrorism case was barred from

discussing the case with an Agent across the hall who was

working the criminal side of that same investigation. For

instance, if a court-ordered criminal wiretap turned up

intelligence information, the criminal investigator could not

share that information with the intelligence investigator--he

could not even suggest that the intelligence investigator

should seek a wiretap to collect the information for himself.

If the criminal investigator served a grand jury subpoena to

a suspect's bank, he could not divulge any information found

in those bank records to the intelligence investigator.

Instead, the intelligence investigator would have to issue a

National Security Letter in order to procure that same

information.

Chicago U.S. Attorney Patrick Fitzgerald, in an October 21, 2003 hearing before the Senate Judiciary Committee, described how these pre- Patriot information-sharing limits undercut one potentially vital terror investigation. Mr. Fitzgerald discussed the grand-jury testimony of Wadih el Hage, a key member of the Al Qaeda cell in Nairobi who, in September 1997, was apprehended while changing flights in New York City. Federal prosecutors subpoenaed el Hage from the airport to testify before a Federal grand jury in Manhattan. Mr. Fitzgerald described how el Hage:

[P]rovided some information of potential use to the

intelligence community--including potential leads as to the

location of his confederate Harun and the location of Harun's

files in Kenya. Unfortunately, as el Hage left the grand-jury

room, we knew that * * * [because of pre-Patriot

restrictions] we would not be permitted to share the grand-

jury information with the intelligence community. * * *

Fortunately, we found a way to address the problem that in

most other cases would not work. Upon request, el Hage

voluntarily agreed to be debriefed by an FBI agent outside

the grand-jury room * * *. El Hage then repeated the essence

of what he told the grand jury to the FBI agent, including

his purported leads to on the location of Harun and his

files. The FBI then lawfully shared the information with the

intelligence community. In essence, we solved the problem by

obtaining the consent of a since-convicted terrorist. We do

not want to have to rely on the consent of al Qaeda

terrorists to address the gaps in our national security.

Mr. Fitzgerald went on to describe how, in August 1998, the American Embassy in Nairobi was bombed by al Qaeda. Investigators quickly learned that el Hage's associate Harun was responsible. In this particular case, investigators had been able to work around information-sharing limits because of an al Qaeda terrorist's willingness to be interviewed by the FBI, and even with this information U.S. agents were not able to stop a terrorist attack. The pre-Patriot limits were not a decisive factor in blocking U.S. intelligence agents from preventing the Kenya bombing. But they could have been. As U.S. Attorney Fitzgerald concluded, ``we should not have to wait for people to die with no explanation [other] than that interpretations of the law blocked the sharing of specific information that probably [c]ould have saved [American lives].''

As Attorney General Reno noted in her testimony before the 9/11 Commission, ``these restrictions [on information sharing] have now been eliminated as part of the Patriot Act.'' Director Mueller, in his Judiciary Committee testimony yesterday, described the impact of this change:

The removal of the ``wall'' has allowed government

investigators to share information freely. Now, criminal

investigative information that contains foreign intelligence

or counterintelligence, including grand jury and wiretap

information, can be shared with intelligence officials. This

increased ability to share information has disrupted

terrorist operations in their early stages--such as the

successful dismantling of the ``Portland Seven'' terror

cell--and has led to numerous arrests, prosecutions, and

convictions in terrorism cases.

In essence, prior to September 11th, criminal and

intelligence investigators were attempting to put together a

complex jigsaw puzzle at separate tables. The Patriot Act has

fundamentally changed the way we do business. Today, those

investigators sit at the same table and work together on one

team. They share leads. They fuse information. Instead of

conducting parallel investigations, they are fully integrated

into one joint investigation.

These Patriot Act changes can directly be credited with some important recent successes in the war on terror. For example, in February 2003, Federal prosecutors arrested and indicted Sami Al-Arian and seven other suspected terrorists. The 50-count indictment indicated that Al-Arian was the financial director and the North American leader of Palestinian Islamic Jihad, a terrorist group that has killed more than 100 people in and around Israel, including two Americans. Al-Arian wired money to groups in Israel that paid money to the families of terrorists who carried out suicide bombings. He also founded three organizations in Florida which, among other things, drafted final wills and testaments for suicide bombers.

Incredibly, through much of the 1990s, Al-Arian was secretly watched by two different sets of U.S. investigators. The FBI had been conducting a criminal probe of Al-Arian since 1995. Meanwhile, intelligence agents had monitored Al-Arian since the late 1980s. Because of pre-Patriot restrictions, the two sets of investigators were not able to share information and were not aware of the full extent of each other's investigations. It was only after the FISA Court of Review upheld Patriot

Act Sec. 203's information-sharing provisions in November 2002 that intelligence officials were able to show their files to prosecutors. Several months after this Patriot provision was upheld and made effective, prosecutors arrested and indicted Al-Arian and put an end to his activities.

Of course, the provisions of the Patriot Act subject to the Sec. 224 sunset include much more than just the three provisions that facilitate information sharing. Although I will not discuss all of those provisions in detail today--some of which have never been controversial--I would like to discuss one provision that has been a particular focus of attacks on the Patriot Act.

Section 215 of the Patriot Act allows the FBI to seek an order for ``the production of tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information.'' FISA defines ``foreign intelligence'' as information relating to foreign espionage, foreign sabotage, or international terrorism, or information respecting a foreign power that relates to U.S. national security or foreign policy. Thus Sec. 215 cannot be used to investigate ordinary crimes or even domestic terrorism. And in every case, a Sec. 215 order must be approved by a judge.

Alhough Sec. 215 is basically a form of subpoena authority, like that allowed for numerous other types of investigation indeed, it is more tightly restricted than other types of subpoenas because it must be pre-approved by a judge Sec. 215 has been heavily targeted by Patriot Act critics. Chief among their complaints is that Sec. 215 could be used to obtain records from bookstores or libraries. Some of these critics have even alleged that Sec. 215 would allow the FBI to investigate someone simply because of the books that he borrows from a library.

Section 215 could in fact be used to obtain library records, though neither Sec. 215 nor any other provision of the Patriot Act specifically mentions libraries or is directed at libraries. Nevertheless, Sec. 215 does authorize court orders to produce tangible records--which could include library records.

Where the critics are wrong is in suggesting that a Sec. 215 order could be obtained because of the books that someone reads or the websites that he visits. Sec. 215 allows no such thing. Instead, Sec. 215 allows an order to obtain ``tangible things'' as part of an investigation to ``obtain foreign intelligence information''-- information relating to foreign espionage or terrorism or relating to a foreign government or group and national security. By requiring a judge to approve such an order, Sec. 215 ensures that these orders will not be used for an improper purpose. And as an added protection against abuse, the Patriot Act also requires that the FBI ``fully inform'' the House and Senate Intelligence Committees on all use of Sec. 215 every six months. These checks and safeguards leave FBI agents little room for the types of witch hunts that Patriot Act critics conjure up.

Further, it bears mention that federal investigators already use an authority very similar to Sec. 215 the grand jury subpoena--to obtain bookstore records. As Deputy AG Comey recently emphasized in a letter that he submitted to the editor of the New York Times, ``orders for records under [Sec. 215] are more closely scrutinized and more difficult to obtain than ordinary grand jury supoenas, which can require production of the very same records, but without judicial approval.'' Similarly, in a September 11, 2003 editorial, ``Patriot (Act) Games,'' the Washington Post noted that investigative authority to review library records ``existed prior to the Patriot Act; the law extends it to national security investigations, which isn't unreasonable.''

Finally, I would emphasize that an intelligence or criminal investigation may have good and legitimate reasons for extending to library or bookstore records. For example, in a recent domestic terrorism case, Federal investigators sought to prove that a suspected bomber had built a particularly unusual detonator that had been used in several bombings. The investigators used a grand-jury subpoena to show that the suspect had purchased a book giving instructions on how to build such a detonator.

Moreover, we should not forget that terrorists and spies historically have used libraries to plan and carry out activities that threaten U.S. national security. We know, for example, that some terrorists have used computers at public libraries to use the internet and communicate by email. It would be unwise to place libraries and bookstores beyond the scope of anti-terror investigations.

Andrew McCarthy, a former federal prosecutor who led the 1995 terrorism case against Sheik Omar Abdel Rahman, recently elaborated on this point in a November 13, 2003 article in National Review Online, ``Patriot Act Under Siege'':

[H]ard experience--won in the course of a string of

terrorism trials since 1993--instructs us that it would be

folly to preclude the government a priori from access to any

broad categories of business record. Reading material, we now

know, can be highly relevant in terrorism cases. People who

build bombs tend to have books and pamphlets on bomb making.

Terrorist leaders often possess literature announcing the

animating principles of their organizations in a tone

tailored to potential recruits. This type of evidence is a

staple of virtually every terrorism investigation--both for

what it suggests on its face and for the forensic

significance of whose fingerprints may be on it. No one is

convicted for having it--jurors are Americans too, and they'd

not long stand for the odious notion that one should be

imprisoned for the mere act of thinking.

When a defendant pleads ``not guilty,'' however, he is

saying: ``I put the government to its proof on every element

of the crime, including that I acted with criminal purport.''

Prosecutors must establish beyond a reasonable doubt not only

that the terrorist engaged in acts but did so intending

execrable consequences. If an accused says the precursor

components he covertly amassed were for innocent use, is it

not relevant that he has just borrowed a book that covers

explosives manufacture? If he claims unfamiliarity with the

tenets of violent jihad, should a jury be barred from

learning that his paws have yellowed numerous publications on

the subject? Such evidence was standard fare throughout Janet

Reno's tenure as attorney general--and rightly so.

In his testimony yesterday, FBI Director Mueller also described the importance to antiterror investigations of some of the other Patriot Act authorities subject to expire under Sec. 224. For example, Director Mueller noted that:

The PATRIOT Act gave federal judges the authority to issue

search warrants that are valid outside the issuing judge's

district in terrorism investigations. In the past, a court

could only issue a search warrant for premises within the

same judicial district--yet our investigations of terrorist

networks often span multiple districts. The PATRIOT Act

streamlined this process, making it possible for judges in

districts where activities related to terrorism may have

occurred to issue search warrants applicable outside their

immediate districts.

In addition, the PATRIOT Act permits similar search

warrants for electronic evidence such as email. In the past,

for example, if an Agent in one district needed to obtain a

search warrant for a subject's email account, but the

Internet service provider (ISP) was located in another

district, he or she would have to contact an AUSA and Agent

in the second district, brief them on the details of the

investigation, and ask them to appear before a judge to

obtain a search warrant--simply because the ISP was

physically based in another district. Thanks to the PATRIOT

Act, this frustrating and time-consuming process can be

averted without reducing judicial oversight. Today, a judge

anywhere in the U.S. can issue a search warrant for a

subject's email, no matter where the ISP is based.

[Further], the PATRIOT Act updated the law to match current

technology, so that we no longer have to fight a 21st-century

battle with antiquated weapons. Terrorists exploit modern

technology such as the Internet and cell phones to conduct

and conceal their activities. The PATRIOT Act leveled the

playing field, allowing investigators to adapt to modern

techniques. For example, the PATRIOT Act clarified our

ability to use court-ordered pen registers and trap-and-trace

devices to track Internet communications. The Act also

enabled us to seek court-approved roving wiretaps, which

allow investigators to conduct electronic surveillance on a

particular suspect, not a particular telephone this allows

them to continuously monitor subjects without having to

return to the court.

All of the authorities described by Director Mueller obviously are critical to antiterrorism investigations--and all will expire next year unless Congress acts to repeal Sec. 224.

In responding to some of the accusations of Patriot Act critics, I do not mean to dismiss the importance of either civil liberties or of independent oversight of the federal government. I would simply emphasize that the Patriot Act is carefully crafted legislation that both guarantees protection for civil liberties and is subject to ample oversight. I would note, in this vein, that in a report filed in January

2004, Department of Justice Inspector General Glenn A. Fine--an appointee of President Clinton described the results of his investigation of all recent civil-rights and civil-liberties complaints received by the Justice Department. The Inspector General found no incidents in which the Patriot Act was used to abuse civil rights or civil liberties.

The Patriot Act's provisions for independent oversight of the new authorities created by the Act were described in detail by Deputy AG Comey in his April 14, 2004 testimony before the Judiciary Committee. Mr. Comey noted:

First, the USA PATRIOT Act preserves the historic role of

courts by ensuring that the vital role of judicial oversight

is not diminished. For example, the provision for delayed

notice for search warrants requires judicial approval. In

addition, under the Act, investigators cannot obtain a FISA

pen register unless they apply for and receive permission

from federal court. The USA PATRIOT Act actually goes farther

to protect privacy than that Constitution requires, as the

Supreme Court has long held that law enforcement authorities

are not constitutionally required to obtain court approval

before installing a pen register. Furthermore, a court order

is required to compel production of business records, in

national security investigations.

Second, the USA PATRIOT Act respects important

congressional oversight by placing new reporting requirements

on the Department. Every six months, the Attorney General is

required to report to Congress the number of times section

215 has been utilized, as well as to inform Congress

concerning all electronic surveillance under the Foreign

Intelligence Surveillance Act. Under section 1001 of the USA

PATRIOT Act, Congress receives a semiannual report from the

Department's Inspector General detailing any abuses of civil

rights and civil liberties by employees or officials of the

Department of Justice. It is important to point out that in

the Inspector General's most recent report to Congress, he

reported that his office has received no complaints alleging

misconduct by Department employees related to the use of a

substantive provision of the USA PATRIOT Act.

Finally, the USA PATRIOT Act fosters public oversight of

the Department. In addition to the role of the Inspector

General to review complaints alleging abuses of civil

liberties and civil rights, the Act provides a cause of

action for individuals aggrieved by any willful violation of

Title III or certain sections of FISA. To date, no civil

actions have been filed under this provision.

The United States has had some important successes in the war on terror so far. Worldwide, more than half of al Qaeda's senior leadership has been captured or killed. More than 3,000 al Qaeda operatives have been incapacitated. Within the United States, 4 different terrorist cells have been broken up--cells located in Buffalo, Detroit, Seattle, and Portland. 284 individuals have been criminally charged to date, and 149 individuals have been convicted or pleaded guilty, including: shoe bomber Richard Reid, six members of the Buffalo terrorist cell, two members of the Detroit cell, Ohio truck driver Iyman Faris, and U.S.-born Taliban John Walker Lindh.

Patriot-aided criminal prosecutions also have contributed to U.S. intelligence efforts to learn more about terrorist organizations. Facing long prison terms, some apprehended terrorist have chosen to cooperate with the U.S. government. So far, the Justice Department has obtained plea agreements from 15 individuals who are now cooperating with terror investigations. One individual has given the U.S. information about weapons stored by terrorists in the United States. Another cooperating terrorist has given U.S. investigators information about locations in the U.S. that are being scouted or cased for potential attacks by al Qaeda.

The Patriot Act has played a major role in what U.S. antiterror investigations have accomplished so far. And it is clear that we will continue to need the authorities created by the Patriot Act into the foreseeable future. For these reasons, I am pleased to introduce today with my colleagues a bill to repeal Sec. 224 and make the Patriot Act permanent.

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 repeal Sec. 224 of the USA Patriot Act. Section 224 provides that 16 different parts of the Patriot Act ``shall cease to have effect on December 31, 2005.'' The authorities subject to this sunset include some of the most important provisions of the Act. They are sections 201, wiretapping in terrorism cases; 202, wiretapping in computer fraud and abuse felony case; 203(b) sharing wiretap information; 203(d), sharing foreign intelligence information; 204, Foreign Intelligence Surveillance Act (FISA) pen register/trap and trace exceptions; 206, roving FISA wiretaps; 207, duration of FISA surveillance of non-United States persons who are agents of a foreign power; 209, seizure of voice-mail messages pursuant to warrants; 212, emergency disclosure of electronic surveillance; 214, FISA pen register/ trap and trace authority; 215, FISA access to tangible items; 217, interception of computer trespasser communications; 218, purpose for FISA orders; 220, nationwide service of search warrants for electronic evidence; 223, civil liability and discipline for privacy violations; and 225, provider immunity for FISA wiretap assistance.

Rather than praise the Patriot Act myself, I would like to quote others who have done so. First, I would note that the President has called on Congress to renew all parts of the Patriot Act that are scheduled to expire next year. As he has emphasized, ``to abandon the Patriot Act would deprive law enforcement and intelligence officers of needed tools in the war on terror, and demonstrate willful blindness to a continuing threat.''

FBI Director Robert Mueller, in a hearing before the Judiciary Committee yesterday, also voiced strong support for renewing the Patriot Act. As he noted, ``for over two and a half years, the PATRIOT Act has proved extraordinarily beneficial in the war on terrorism and has changed the way the FBI does business. Many of our counterterrorism successes, in fact, are the direct results of provisions included in the Act, a number of which are scheduled to `sunset' at the end of next year. I strongly believe it is vital to our national security to keep each of these provisions intact.''

Similarly, in an April 14 field hearing before the Judiciary Committee, Deputy Attorney General James Comey stated that the Patriot Act ``has made us immeasurably safer.'' He also responded to the allegation, occasionally made by some critics, that the Patriot Act was passed too quickly. He replied that ``the USA Patriot Act was not rushed, it actually came 10 years too late.''

The importance of the Patriot Act to American security also has drawn the attention of the 9/11 Commission. Former New Jersey Governor Thomas Kean has noted that the Commission has had ``witness after witness tell us that the Patriot Act has been very, very helpful, and if the Patriot Act, or portions of it, had been in place before 9/11, that would have been very helpful.''

This praise has not been limited to the Republicans who have participated in the Commission's proceedings. Former Attorney General Janet Reno, for example, testified before the Commission that ``everything that's been done in the Patriot Act has been helpful.''

Nor is President Bush alone among the major candidates for President this year in hailing the importance of the Patriot Act. Indeed, his principal rival for the office, Senator Kerry, recently claimed that he would go even further than the President. According to an April 25 story in the Los Angeles Times, Senator Kerry's spokesman insists that ``it is the challenger, not the president, who brings the most muscular view of the Patriot Act into the race.'' Senator Kerry's presidential campaign website even includes a ``Plan to Restore American Security,'' which lists as its number-one priority to ``improve intelligence capabilities.'' Senator Kerry states that he ``understands that intelligence information is the key to disrupting and dismantling terrorist organizations and that we need to improve our intelligence capabilities, both domestically and internationally, in order to win the war on global terrorism.''

One reform implemented by the Patriot Act that Attorney General Reno and others have particularly emphasized is its authorization for information sharing. Because this part of the Patriot Act is often praised but infrequently described in detail, I would like to quote the following accounts of pre-Patriot barriers to information sharing, and of the investigative successes that the removal of those barriers has made possible.

The FISA Court of Review decision upholding the Patriot Act's authorization for information sharing, In re: Sealed Case, 310 F.3d 717,

F.I.S. Ct. Rev. 2002 , describes the origins of the pre-Patriot

barriers:

Apparently to avoid running afoul of the primary purpose

test used by some courts, the 1995 [Attorney General]

Procedures [(``Procedures for Contacts Between the FBI and

the Criminal Division Concerning Foreign Intelligence and

Foreign Counterintelligence Investigations'')] limited

contacts between the FBI and the Criminal Division in cases

where FISA surveillance or searches were being conducted by

the FBI for foreign intelligence (FI) or foreign

counterintelligence (FCI) purposes. The procedures state that

``the FBI and Criminal Division should ensure that advice

intended to preserve the option of a criminal prosecution

does not inadvertently result in either the fact or the

appearance of the Criminal Division's directing or

controlling the FI or FCI investigation toward law

enforcement objectives.'' Although these procedures provided

for significant information sharing and coordination between

criminal and FI or FCI investigations, based at least in part

on the ``directing or controlling'' language, they eventually

came to be narrowly interpreted within the Department of

Justice, and most particularly by OIPR, as requiring OIPR to

act as a ``wall'' to prevent the FBI intelligence officials

from communicating with the Criminal Division regarding

ongoing FI or FCI investigations. Thus, the focus became the

nature of the underlying investigation, rather than the

general purpose of the surveillance. Once prosecution of the

target was being considered, the procedures, as interpreted

by OIPR in light of the case law, prevented the Criminal

Division from providing any meaningful advice to the FBI.''

In re: Sealed Case, 310 F.3d at 727-28 citations omitted.

FBI Director Mueller, in his testimony yesterday, provided a concrete account of the impact that these information-sharing barriers had on intelligence investigations:

Prior to September 11, an [FBI] Agent investigating the

intelligence side of a terrorism case was barred from

discussing the case with an Agent across the hall who was

working the criminal side of that same investigation. For

instance, if a court-ordered criminal wiretap turned up

intelligence information, the criminal investigator could not

share that information with the intelligence investigator--he

could not even suggest that the intelligence investigator

should seek a wiretap to collect the information for himself.

If the criminal investigator served a grand jury subpoena to

a suspect's bank, he could not divulge any information found

in those bank records to the intelligence investigator.

Instead, the intelligence investigator would have to issue a

National Security Letter in order to procure that same

information.

Chicago U.S. Attorney Patrick Fitzgerald, in an October 21, 2003 hearing before the Senate Judiciary Committee, described how these pre- Patriot information-sharing limits undercut one potentially vital terror investigation. Mr. Fitzgerald discussed the grand-jury testimony of Wadih el Hage, a key member of the Al Qaeda cell in Nairobi who, in September 1997, was apprehended while changing flights in New York City. Federal prosecutors subpoenaed el Hage from the airport to testify before a Federal grand jury in Manhattan. Mr. Fitzgerald described how el Hage:

[P]rovided some information of potential use to the

intelligence community--including potential leads as to the

location of his confederate Harun and the location of Harun's

files in Kenya. Unfortunately, as el Hage left the grand-jury

room, we knew that * * * [because of pre-Patriot

restrictions] we would not be permitted to share the grand-

jury information with the intelligence community. * * *

Fortunately, we found a way to address the problem that in

most other cases would not work. Upon request, el Hage

voluntarily agreed to be debriefed by an FBI agent outside

the grand-jury room * * *. El Hage then repeated the essence

of what he told the grand jury to the FBI agent, including

his purported leads to on the location of Harun and his

files. The FBI then lawfully shared the information with the

intelligence community. In essence, we solved the problem by

obtaining the consent of a since-convicted terrorist. We do

not want to have to rely on the consent of al Qaeda

terrorists to address the gaps in our national security.

Mr. Fitzgerald went on to describe how, in August 1998, the American Embassy in Nairobi was bombed by al Qaeda. Investigators quickly learned that el Hage's associate Harun was responsible. In this particular case, investigators had been able to work around information-sharing limits because of an al Qaeda terrorist's willingness to be interviewed by the FBI, and even with this information U.S. agents were not able to stop a terrorist attack. The pre-Patriot limits were not a decisive factor in blocking U.S. intelligence agents from preventing the Kenya bombing. But they could have been. As U.S. Attorney Fitzgerald concluded, ``we should not have to wait for people to die with no explanation [other] than that interpretations of the law blocked the sharing of specific information that probably [c]ould have saved [American lives].''

As Attorney General Reno noted in her testimony before the 9/11 Commission, ``these restrictions [on information sharing] have now been eliminated as part of the Patriot Act.'' Director Mueller, in his Judiciary Committee testimony yesterday, described the impact of this change:

The removal of the ``wall'' has allowed government

investigators to share information freely. Now, criminal

investigative information that contains foreign intelligence

or counterintelligence, including grand jury and wiretap

information, can be shared with intelligence officials. This

increased ability to share information has disrupted

terrorist operations in their early stages--such as the

successful dismantling of the ``Portland Seven'' terror

cell--and has led to numerous arrests, prosecutions, and

convictions in terrorism cases.

In essence, prior to September 11th, criminal and

intelligence investigators were attempting to put together a

complex jigsaw puzzle at separate tables. The Patriot Act has

fundamentally changed the way we do business. Today, those

investigators sit at the same table and work together on one

team. They share leads. They fuse information. Instead of

conducting parallel investigations, they are fully integrated

into one joint investigation.

These Patriot Act changes can directly be credited with some important recent successes in the war on terror. For example, in February 2003, Federal prosecutors arrested and indicted Sami Al-Arian and seven other suspected terrorists. The 50-count indictment indicated that Al-Arian was the financial director and the North American leader of Palestinian Islamic Jihad, a terrorist group that has killed more than 100 people in and around Israel, including two Americans. Al-Arian wired money to groups in Israel that paid money to the families of terrorists who carried out suicide bombings. He also founded three organizations in Florida which, among other things, drafted final wills and testaments for suicide bombers.

Incredibly, through much of the 1990s, Al-Arian was secretly watched by two different sets of U.S. investigators. The FBI had been conducting a criminal probe of Al-Arian since 1995. Meanwhile, intelligence agents had monitored Al-Arian since the late 1980s. Because of pre-Patriot restrictions, the two sets of investigators were not able to share information and were not aware of the full extent of each other's investigations. It was only after the FISA Court of Review upheld Patriot

Act Sec. 203's information-sharing provisions in November 2002 that intelligence officials were able to show their files to prosecutors. Several months after this Patriot provision was upheld and made effective, prosecutors arrested and indicted Al-Arian and put an end to his activities.

Of course, the provisions of the Patriot Act subject to the Sec. 224 sunset include much more than just the three provisions that facilitate information sharing. Although I will not discuss all of those provisions in detail today--some of which have never been controversial--I would like to discuss one provision that has been a particular focus of attacks on the Patriot Act.

Section 215 of the Patriot Act allows the FBI to seek an order for ``the production of tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information.'' FISA defines ``foreign intelligence'' as information relating to foreign espionage, foreign sabotage, or international terrorism, or information respecting a foreign power that relates to U.S. national security or foreign policy. Thus Sec. 215 cannot be used to investigate ordinary crimes or even domestic terrorism. And in every case, a Sec. 215 order must be approved by a judge.

Alhough Sec. 215 is basically a form of subpoena authority, like that allowed for numerous other types of investigation indeed, it is more tightly restricted than other types of subpoenas because it must be pre-approved by a judge Sec. 215 has been heavily targeted by Patriot Act critics. Chief among their complaints is that Sec. 215 could be used to obtain records from bookstores or libraries. Some of these critics have even alleged that Sec. 215 would allow the FBI to investigate someone simply because of the books that he borrows from a library.

Section 215 could in fact be used to obtain library records, though neither Sec. 215 nor any other provision of the Patriot Act specifically mentions libraries or is directed at libraries. Nevertheless, Sec. 215 does authorize court orders to produce tangible records--which could include library records.

Where the critics are wrong is in suggesting that a Sec. 215 order could be obtained because of the books that someone reads or the websites that he visits. Sec. 215 allows no such thing. Instead, Sec. 215 allows an order to obtain ``tangible things'' as part of an investigation to ``obtain foreign intelligence information''-- information relating to foreign espionage or terrorism or relating to a foreign government or group and national security. By requiring a judge to approve such an order, Sec. 215 ensures that these orders will not be used for an improper purpose. And as an added protection against abuse, the Patriot Act also requires that the FBI ``fully inform'' the House and Senate Intelligence Committees on all use of Sec. 215 every six months. These checks and safeguards leave FBI agents little room for the types of witch hunts that Patriot Act critics conjure up.

Further, it bears mention that federal investigators already use an authority very similar to Sec. 215 the grand jury subpoena--to obtain bookstore records. As Deputy AG Comey recently emphasized in a letter that he submitted to the editor of the New York Times, ``orders for records under [Sec. 215] are more closely scrutinized and more difficult to obtain than ordinary grand jury supoenas, which can require production of the very same records, but without judicial approval.'' Similarly, in a September 11, 2003 editorial, ``Patriot (Act) Games,'' the Washington Post noted that investigative authority to review library records ``existed prior to the Patriot Act; the law extends it to national security investigations, which isn't unreasonable.''

Finally, I would emphasize that an intelligence or criminal investigation may have good and legitimate reasons for extending to library or bookstore records. For example, in a recent domestic terrorism case, Federal investigators sought to prove that a suspected bomber had built a particularly unusual detonator that had been used in several bombings. The investigators used a grand-jury subpoena to show that the suspect had purchased a book giving instructions on how to build such a detonator.

Moreover, we should not forget that terrorists and spies historically have used libraries to plan and carry out activities that threaten U.S. national security. We know, for example, that some terrorists have used computers at public libraries to use the internet and communicate by email. It would be unwise to place libraries and bookstores beyond the scope of anti-terror investigations.

Andrew McCarthy, a former federal prosecutor who led the 1995 terrorism case against Sheik Omar Abdel Rahman, recently elaborated on this point in a November 13, 2003 article in National Review Online, ``Patriot Act Under Siege'':

[H]ard experience--won in the course of a string of

terrorism trials since 1993--instructs us that it would be

folly to preclude the government a priori from access to any

broad categories of business record. Reading material, we now

know, can be highly relevant in terrorism cases. People who

build bombs tend to have books and pamphlets on bomb making.

Terrorist leaders often possess literature announcing the

animating principles of their organizations in a tone

tailored to potential recruits. This type of evidence is a

staple of virtually every terrorism investigation--both for

what it suggests on its face and for the forensic

significance of whose fingerprints may be on it. No one is

convicted for having it--jurors are Americans too, and they'd

not long stand for the odious notion that one should be

imprisoned for the mere act of thinking.

When a defendant pleads ``not guilty,'' however, he is

saying: ``I put the government to its proof on every element

of the crime, including that I acted with criminal purport.''

Prosecutors must establish beyond a reasonable doubt not only

that the terrorist engaged in acts but did so intending

execrable consequences. If an accused says the precursor

components he covertly amassed were for innocent use, is it

not relevant that he has just borrowed a book that covers

explosives manufacture? If he claims unfamiliarity with the

tenets of violent jihad, should a jury be barred from

learning that his paws have yellowed numerous publications on

the subject? Such evidence was standard fare throughout Janet

Reno's tenure as attorney general--and rightly so.

In his testimony yesterday, FBI Director Mueller also described the importance to antiterror investigations of some of the other Patriot Act authorities subject to expire under Sec. 224. For example, Director Mueller noted that:

The PATRIOT Act gave federal judges the authority to issue

search warrants that are valid outside the issuing judge's

district in terrorism investigations. In the past, a court

could only issue a search warrant for premises within the

same judicial district--yet our investigations of terrorist

networks often span multiple districts. The PATRIOT Act

streamlined this process, making it possible for judges in

districts where activities related to terrorism may have

occurred to issue search warrants applicable outside their

immediate districts.

In addition, the PATRIOT Act permits similar search

warrants for electronic evidence such as email. In the past,

for example, if an Agent in one district needed to obtain a

search warrant for a subject's email account, but the

Internet service provider (ISP) was located in another

district, he or she would have to contact an AUSA and Agent

in the second district, brief them on the details of the

investigation, and ask them to appear before a judge to

obtain a search warrant--simply because the ISP was

physically based in another district. Thanks to the PATRIOT

Act, this frustrating and time-consuming process can be

averted without reducing judicial oversight. Today, a judge

anywhere in the U.S. can issue a search warrant for a

subject's email, no matter where the ISP is based.

[Further], the PATRIOT Act updated the law to match current

technology, so that we no longer have to fight a 21st-century

battle with antiquated weapons. Terrorists exploit modern

technology such as the Internet and cell phones to conduct

and conceal their activities. The PATRIOT Act leveled the

playing field, allowing investigators to adapt to modern

techniques. For example, the PATRIOT Act clarified our

ability to use court-ordered pen registers and trap-and-trace

devices to track Internet communications. The Act also

enabled us to seek court-approved roving wiretaps, which

allow investigators to conduct electronic surveillance on a

particular suspect, not a particular telephone this allows

them to continuously monitor subjects without having to

return to the court.

All of the authorities described by Director Mueller obviously are critical to antiterrorism investigations--and all will expire next year unless Congress acts to repeal Sec. 224.

In responding to some of the accusations of Patriot Act critics, I do not mean to dismiss the importance of either civil liberties or of independent oversight of the federal government. I would simply emphasize that the Patriot Act is carefully crafted legislation that both guarantees protection for civil liberties and is subject to ample oversight. I would note, in this vein, that in a report filed in January

2004, Department of Justice Inspector General Glenn A. Fine--an appointee of President Clinton described the results of his investigation of all recent civil-rights and civil-liberties complaints received by the Justice Department. The Inspector General found no incidents in which the Patriot Act was used to abuse civil rights or civil liberties.

The Patriot Act's provisions for independent oversight of the new authorities created by the Act were described in detail by Deputy AG Comey in his April 14, 2004 testimony before the Judiciary Committee. Mr. Comey noted:

First, the USA PATRIOT Act preserves the historic role of

courts by ensuring that the vital role of judicial oversight

is not diminished. For example, the provision for delayed

notice for search warrants requires judicial approval. In

addition, under the Act, investigators cannot obtain a FISA

pen register unless they apply for and receive permission

from federal court. The USA PATRIOT Act actually goes farther

to protect privacy than that Constitution requires, as the

Supreme Court has long held that law enforcement authorities

are not constitutionally required to obtain court approval

before installing a pen register. Furthermore, a court order

is required to compel production of business records, in

national security investigations.

Second, the USA PATRIOT Act respects important

congressional oversight by placing new reporting requirements

on the Department. Every six months, the Attorney General is

required to report to Congress the number of times section

215 has been utilized, as well as to inform Congress

concerning all electronic surveillance under the Foreign

Intelligence Surveillance Act. Under section 1001 of the USA

PATRIOT Act, Congress receives a semiannual report from the

Department's Inspector General detailing any abuses of civil

rights and civil liberties by employees or officials of the

Department of Justice. It is important to point out that in

the Inspector General's most recent report to Congress, he

reported that his office has received no complaints alleging

misconduct by Department employees related to the use of a

substantive provision of the USA PATRIOT Act.

Finally, the USA PATRIOT Act fosters public oversight of

the Department. In addition to the role of the Inspector

General to review complaints alleging abuses of civil

liberties and civil rights, the Act provides a cause of

action for individuals aggrieved by any willful violation of

Title III or certain sections of FISA. To date, no civil

actions have been filed under this provision.

The United States has had some important successes in the war on terror so far. Worldwide, more than half of al Qaeda's senior leadership has been captured or killed. More than 3,000 al Qaeda operatives have been incapacitated. Within the United States, 4 different terrorist cells have been broken up--cells located in Buffalo, Detroit, Seattle, and Portland. 284 individuals have been criminally charged to date, and 149 individuals have been convicted or pleaded guilty, including: shoe bomber Richard Reid, six members of the Buffalo terrorist cell, two members of the Detroit cell, Ohio truck driver Iyman Faris, and U.S.-born Taliban John Walker Lindh.

Patriot-aided criminal prosecutions also have contributed to U.S. intelligence efforts to learn more about terrorist organizations. Facing long prison terms, some apprehended terrorist have chosen to cooperate with the U.S. government. So far, the Justice Department has obtained plea agreements from 15 individuals who are now cooperating with terror investigations. One individual has given the U.S. information about weapons stored by terrorists in the United States. Another cooperating terrorist has given U.S. investigators information about locations in the U.S. that are being scouted or cased for potential attacks by al Qaeda.

The Patriot Act has played a major role in what U.S. antiterror investigations have accomplished so far. And it is clear that we will continue to need the authorities created by the Patriot Act into the foreseeable future. For these reasons, I am pleased to introduce today with my colleagues a bill to repeal Sec. 224 and make the Patriot Act permanent.

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

Mr. President, earlier this month, more than 1,250 students from across the United States were in Washington, DC to compete in the national finals of the ``We the People: The Citizen and the Constitution'' program. I am proud to note that the class from Dobson High School from Mesa, AZ received a fourth place honorable mention in this year's competition.

I would like to take a moment to mention the names of those students who competed for Dobson High: Andrew Barrett, Andi Berlin, Amanda Campbell, Catherine Capozzi, Eric Chen, Katy Cronenberg, Tom Emmons, Eva Farnsworth, Jennifer Heller, Annie Ho, Jamie Kearney, Katie Kearney, Maureen Klaum, Nicole Klundt, Jessie Leatham, Angela Mallard, Tara McMurdy, Joanna Sung, Taylor Morris, Kim Nath, Janne Perona, Dean Thong-Kahm, and Shaochen Wu. I would also like to acknowledge their teacher, Abby Dupke, the district coordinator, Kathy Williams, and the State coordinator, Susan Nusso.

I congratulate these budding constitutional experts and wish them the best of luck in the future.

Mr. President, I call up amendment No. 3191, which is at the desk.

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

Mr. President, I pose an inquiry. I am prepared to discuss this amendment and move forward with it. I was advised that possibly the Senator from West Virginia wishes to use this time to make some remarks. I say to the Senator, if he wishes to do that, I would be happy to defer.

Mr. President, I ask unanimous consent that at the conclusion of Senator Byrd's remarks, I be recognized to get back on my amendment. Also, I inquire of the Senator approximately how long he wishes to take.

I am happy to yield to the Senator from New Jersey for a question.

Mr. President, what we have pending right now is a second- degree amendment to the Lautenberg amendment, and there will be discussions about precisely how that will be treated when this amendment and the Lautenberg amendment are voted on at the end of the afternoon.

Let me begin by noting what some of my objections are to the Lautenberg amendment. Then I will speak to the second-degree amendment which I have offered. The point of the Lautenberg amendment is to change the way in which sanctions are put on companies doing business abroad. The State Department has issued some objections to this amendment which I will speak to later. To summarize: That it would interfere with the President's discretion in conducting foreign affairs; that it would lead to a number of foreign policy problems for the United States; that it is unnecessary because the President exercises authority with respect to these foreign subsidiaries today.

To be precise about a particular concern the State Department expresses, the amendment would actually only focus on ownership, which is a standard that could easily be circumvented by these companies against whom we would all want sanctions to apply, and would be less effective than the administration's current approach utilized by the President. By defining this under the definition of control to mean owning at least 50 percent of the capital structure of the entity, the test could easily be circumvented by manipulating the percentage of ownership so that it remains under 50 percent, but at the same time maintaining control in fact.

Under current law, the U.S. Treasury Department considers both ownership and control so the President has the ability to exert this kind of sanction authority in a much more flexible way than would be the case under the amendment offered by the Senator from New Jersey. The Lautenberg amendment diminishes the President's authority and reduces the scope of the sanctions.

Finally, its impact on existing sanction programs is unclear. The authority exists already. The Lautenberg amendment would raise questions, complications, and reduce the President's flexibility in ways we don't

think would be appropriate. That is one of the reasons we are offering this alternative, this substitute or second-degree amendment, depending upon how we agree to characterize it.

This is an amendment which has been offered as a way to raise revenues for different purposes, but the revenues--perhaps $9 billion in revenues generated here, but in any event some amount, substantial billions of dollars--would be available for expenditures by the Secretary of Defense on a variety of equipment such as replacement of equipment lost in combat, ammunition, and selected items of high priority such as vehicles or night vision devices, Javelin missiles, sensors, unmanned aerial vehicles. In fact, to the degree that we would want to expand the existing program, which will be completed shortly for our own troops for additional add-on protection for shoulder and side-body areas or interceptor body armor for Iraqi troops, for example, or additional add-on ballistic protection for medium and heavy wheeled vehicles or multipurpose wheeled vehicles, all of those things could be paid for with the fees that would be generated out of this particular amendment.

What is this amendment? I had actually offered versions of this before. The point was to try to prevent the tobacco settlement of 1998 from resulting in a windfall to certain of the trial lawyers who were involved in that settlement. What we did is to utilize an existing Tax Code provision which says in cases of trusts, for example, where the trustee pays himself too much or an unreasonable fee, the IRS can impose an excessive tax. I say excessive because it is 200 percent of income. The purpose of it is to discourage the behavior of a trustee who would bilk the trust in effect by charging himself fees that are not deemed reasonable. And we utilize that same concept here, adding a second section immediately following that section of the Internal Revenue Code to provide similar treatment with respect to these unreasonable lawyer fees. So the concept is already in the Tax Code. We would simply apply it to the master settlement agreement for lawyer fees as well.

I make it very clear that, first of all, the amendment does not apply to any fees that have already been judicially reviewed and approved by courts under appropriate standards. It does not apply retroactively. It is only prospectively, to fees paid in the future out of the tobacco settlement on which taxes have yet to be collected. And by the way, there are about $100 million in fees paid out of this settlement every year. The trial lawyers will still receive billions of dollars in fees under this amendment, far more than their actual legal work would justify.

What we have done is to say that the cap on fees we had suggested before of $2,000 an hour--if you stop and think about it, that is a lot of money--we have scrapped that. Some people said, no, some lawyers might actually have been worth $2,000 an hour. Think about your plumber and what he charges per hour.

But we said, OK, how about $10,000 an hour. And they said, no, that is still not enough. These lawyers need more than $10,000 an hour. So what we have done in this amendment is to say: OK, we will bend over backward here, be fair to these poor trial lawyers. We are going to let them earn $20,000 an hour for every hour they put in. I think that is enough.

I am not sure that would meet most people's definition of reasonable, but we are going to say that that is reasonable, that they can earn $20,000 an hour. But that isn't enough. Some people have said this is the ``one yacht per lawyer rule.'' I am not sure what a yacht goes for.

The bottom line is that there is a point at which the fees are obscene and unreasonable and unethical, and under the existing IRS Code, this kind of conduct is taken care of by a special tax that is imposed of 200 percent. The same thing would be true here. Obviously, what the lawyer would do is to limit his fee to $20,000 an hour and then return anything in excess of that, so he would not be taxed at 200 percent--returning that money, in this case, to the Treasury of the United States of America.

So the tobacco companies are still going to pay every dime they committed to pay in lawyer fees. But the money, instead of going to the trial lawyers, after they have collected $20,000 an hour, will go to the U.S. Treasury to pay for the military equipment that is the subject of the bill before us right now.

Now, let me make a point about these fees being excessive. Some may dispute this, although, in view of the history, I cannot imagine anybody seriously disputing it. Let me give you some examples. I will start with reminding my colleagues exactly how the tobacco fees were awarded.

In the State of Texas, for example, trial lawyers were awarded $3.3 billion for their legal work--work that amounted in this case to filing a copycat lawsuit. The fee would amount to an effective hourly rate for these lawyers of over $100,000 an hour. Most people don't make $100,000 in a year. I don't even know how many hours there are in a year, but it is a lot. This is $100,000 an hour. That is wrong. I don't think they would suffer too much if we cut them down to $20,000 an hour.

My colleague from Texas, Senator Cornyn, was attorney general of the State of Texas and he had a firsthand relationship with this issue. In fact, it was a pretty difficult situation. Let me read to you some of the things he described about what happened in Texas. I am quoting the junior Senator from Texas:

In my home State of Texas, trial lawyers have accused the

then Attorney General of demanding $1 million in campaign

contributions in exchange for their being included on the

State's tobacco litigation team. One prominent lawyer--a

former President of the Texas Trial Lawyers Association--has

since said that the attorney general's solicitation was so

blatant that ``I knew that instant . . . that I could not be

involved in the matter,'' and he even later wondered if the

meeting had been a ``sting operation.'' Another lawyer simply

characterized his encounter with the attorney general as a

bribery solicitation.

He describes the rewards these trial lawyers reaped for their political investment:

As for the five law firms that actually did represent Texas

in the tobacco litigation, they filed relatively late

lawsuits based on other lawyers' work--and were awarded $3.3

billion in attorneys fees. This award amounts to compensation

that, even had these attorneys worked all day, every day

during the entire period of the litigation, is well in excess

of $100,000 an hour. As one newspaper editorial has noted,

for the amount of money that these lawyers were awarded,

Texas could hire 10,000 additional teachers or policemen for

ten years.

Senator Cornyn also described how these excessive and, I suggest, clearly unethical fees were obtained by lawyers in other States:

In Maryland, [a tort lawyer, a billionaire] demanded a $1

billion fee for his work on that State's case, even though,

according to the State senate President, the State

legislature had retroactively ``changed centuries of

precedent to ensure [his] win in the case. [He] ultimately

received an accelerated $150 million payment for this no-risk

lawsuit.

In Massachusetts, according to other tobacco plaintiffs'

lawyers, Massachusetts' suit piggybacked on the work of other

lawyers and was not pivotal to the outcome of the tobacco

litigation. Result: $775 million was awarded to the

Massachusetts lawyers in that [State's arbitration on the

tobacco case.]

In Missouri, a State supreme court justice in Missouri

resigned his post in order to join one of the private law

firms expected to receive a portion of the [tobacco fee

award.] Ultimately, the firms representing the State spent

just 5 months on the State's lawsuit. They received a fee

award of $111 million. One State leader has described the

award as ``the biggest rip-off in the 180-year history of the

State.'' The law firms receiving these fees had donated more

than $500,000 to State politicians and parties in the years

leading up to their selection as the State's outside counsel.

As I mentioned earlier, these fee contracts were awarded in a variety of ways, including through political cronyism, and really resulted in very little original legal work. That is my assertion to you. Don't take my word for it. On this tort reform issue, even many of the trial bar lawyers are in full agreement that the lawyers' fees here were excessive. They certainly should know; they are experts in this area. This is what some folks, including some tobacco lawyers, had to say:

Michael Ciresi, a pioneer in tobacco litigation who represented the State of Minnesota in its lawsuit, and who is very familiar with these lawsuits, has said that the Texas, Florida, and Mississippi lawyers' fees awards ``are far in excess of these lawyers' contribution to any of the State results.''

Washington, DC lawyer and tobacco industry opponent, John Coale, has denounced the fee awards as ``beyond human comprehension'' and stated that ``the work does not justify them.''

Even the Association of American Trial Lawyers, the Nation's premier representative of the plaintiffs bar, has condemned attorneys' fees requested in the State tobacco settlement. The President of ATLA stated:

Common sense suggests that a $1 billion fee is excessive

and unreasonable and certainly should invite the scrutiny [of

the courts.] [ATLA] generally refrains from expressing an

institutional opinion regarding a particular fee in a

particular case, but we have a strong negative reaction to

reports that at least one attorney on behalf of the

plaintiffs in the Florida case is seeking a fee in excess of

$1 billion.

Perhaps the best gloss on the tobacco fee awards is that provided by Professor Lester Brickman, a professor of law at Cardozo Law School, a noted authority on legal ethics and attorney fees:

Under the rules of legal ethics, promulgated partly as a

justification for the legal profession's self-governance,

fees cannot be ``clearly excessive.'' Indeed, that standard

has now been superseded in most States by an even more

rigorous standard: Fees have to be ``reasonable.'' Are these

fees, which in many cases amount to effective hourly rates of

return of tens of thousands--and even hundreds of thousands--

of dollars an hour, reasonable? I think to ask the question

is to answer it.

Let me emphasize one more point. Lawyers are universally held in the law to be fiduciaries. That is, they owe a duty of trust to their clients, a special duty of trust. One can easily understand why that is so. As such, as a fiduciary, under the legal ethics that apply to every lawyer, lawyers are not allowed to take advantage of their clients with regard to their fees. A contract for an unreasonable or unethical fee, for example, is unenforceable in the courts, and the excessive portion of the fee must be returned to the client. Numerous legal authorities confirm that lawyers are fiduciaries whose fees have always been subject to enforceable reasonableness requirements. I say this because, of course, that is what we are doing right here.

We have done that with respect to other fiduciaries in the Tax Code-- the trustees I spoke of earlier--and we can obviously do it here also. One court said:

We realize that business contracts may be enforced between

those in equal bargaining capacities, even though they turn

out to be unfair, inequitable, or harsh. However, a fee

agreement between lawyer and client is not an ordinary

business contract. The profession has both an obligation of

public service and duties to clients which transcend ordinary

business relationships and prohibit the lawyer from taking

advantage of the client.

I will tell you what another court said:

An attorney is only entitled to fees which are fair and

just and which adequately compensate him for his services.

This is true no matter what fee is specified in the contract,

because an attorney, as a fiduciary, cannot bind his client

to pay a greater compensation for his services than the

attorney would have a right to demand if no contract had been

made. Therefore, as a matter of public policy, reasonableness

is an implied term in every contract for attorney's fees.

So the choice before the Senate is either to allow the tobacco settlements to be diverted to self-dealing billionaire tobacco lawyers, or to provide our troops in Iraq and Afghanistan with additional combat equipment to help them perform their missions.

The choice could not be more clear: We can either allow the de facto taxes imposed by the tobacco settlement to continue to be diverted to pay $100,000-an-hour fees to these politically connected billionaire lawyers or we can put those taxes to use providing our troops with additional equipment.

We already have the precedent of doing this with respect to other fiduciaries in the Tax Code, specifically section 4958. This adds a new section immediately following, section 4959, that applies the very same concept to these particular fees. It is prospective only. It does not apply to anything that the court has already approved.

I cannot imagine how this would not be a good idea. The amendment is a sense of the Senate to pass this proposition. I urge my colleagues to support it, assuming we have a vote on this perhaps in an hour and a half or so this afternoon.

Mr. President, if there is no one else seeking recognition, I suggest the absence of a quorum.

Mr. President, I would like to respond to the comments of my friend from Nevada. He had five basic arguments. I think they could all be dispensed with fairly quickly.

His first argument is there are a lot of people who make money in this country, a lot of money, CEOs of businesses, sports figures, and others who receive very large salaries. He wondered if there is any difference between that and the tobacco lawyers who are billionaires because of the money they have made off the tobacco settlement. The answer is, yes, there is a huge difference. The CEOs and the sports figures are not fiduciaries. They are not in a trust relationship with the people who pay their salary. A sports figure, for example, uses a representative of the union and negotiates a fee with the baseball team, and they do pretty well. But it is all a contract negotiation.

If George Steinbrenner is willing to take any New York Yankee player, whatever he is willing to pay him, that is what he thinks he is worth, that is what he brings in the gate, that player is not taking advantage of George Steinbrenner or the New York Yankee fans based upon any fiduciary responsibility.

It is the same thing with respect to the boards of directors who set the salaries of CEOs of major corporations. What I quoted before from professors of law and others is that there is a special category of people who are in a fiduciary relationship. I know my friend from Nevada, as a good lawyer, knows this concept. Lawyers owe their clients a very special duty, a duty far and above what normal contract law is. You cannot take advantage of your client. Even if you can get your client to sign an agreement regarding fees, that agreement will be thrown out of court if the court determines it is unfair.

That doesn't apply with the rich CEOs or the rich sports figures, but it applies in the case, for example, of lawyers, of fiduciaries who are trustees of a trust.

That gets to the second argument--that this is unprecedented. No, it is not. I refer my colleague to section 4958 of the Tax Code. The section deals with an intermediate sanctions tax on fiduciaries, trustees who pay themselves too much money out of a trust. They are held to a standard of a reasonable fee. If they exceed that fee, they pay what? A 200-percent tax.

We got the idea from the Tax Code. We didn't make this up. It is not unprecedented. So our section follows that section; it is 4959. So 4958, existing law, says if you are a fiduciary, a trustee, and you charge your trust too much money for your salary so that the beneficiary is being hurt and it is unfair, then you are going to pay a 200-percent tax to the IRS unless, of course, you give the excessive part back and the tax is waived. That is the whole idea. We never collect the 200-percent tax because nobody is foolish enough to take

the money and pay twice as much back.

They just don't take the money in excess of what is fair. It is in the code and it applies to fiduciaries, people in this special trust relationship.

The third argument was that the tobacco settlement was good, and it is good. There were scholarships, and a lot of people benefited from it. What bothers me is the fact that lawyers benefited unreasonably from it--not all lawyers; a lot of tobacco lawyers did a lot of work and got paid a lot for it, but they put the work in. Others rode along on the work of others and charged far in excess of what any reasonable fee would be.

That gets to the next argument. My friend from Nevada talked about cases he took on a contingency fee, a one-third fee. He is correct. That is common for plaintiffs' lawyers. When they win, they get a third of the settlement. In many cases, that is a totally fair and reasonable fee. I know in the case of my colleague of Nevada, it was fair and reasonable because that is exactly the kind of person he is. If for some reason it would not have been, the court would not have allowed it because of this special fiduciary relationship with his clients. The court would not have allowed it if it exceeded that amount. I am sure-- and I would not ask my colleague--that none of those fees topped $20,000 an hour. That is the amount we have set forth in this bill.

Again, these are not my words. I will quote a couple of people. John Coale, who is a big tobacco industry opponent in Washington, DC, denounced these fee awards as ``beyond human comprehension'' and stated that ``the work does not justify them.''

The president of the organization to which these lawyers belong, the Association of American Trial Lawyers, said:

Common sense suggests that a $1 billion fee is excessive

and unreasonable and certainly should invite the scrutiny [of

the courts.]

The point is, a one-third contingency fee in a typical case is perfectly fine. But a one-third contingency fee in tobacco litigation-- the kind of reward these lawyers are receiving--is totally unreasonable by any standard, including that of the president of the organization to which these few lawyers belong. These lawyers have already received about $4 billion in awards. None of that will be touched. They are going to get another $\1/2\ billion a year under the settlement.

All we are saying is that a reasonableness test has to apply, just as it does to other fiduciaries under the Tax Code. The excess refers to the Treasury so we can pay for things the Defense Department needs.

Another argument was this would interfere with private contracts. No, it doesn't. It has no applicability between lawyers and clients--none. All this applies to is this master settlement agreement that automatically pays out a $\1/2\ billion in fees per year to these lawyers. It doesn't apply retroactively; it only applies if and when the collection by the lawyer gets to the point that it represents more than $20,000 an hour. These lawyers can be paid until the cows come home at $19,999 an hour. But when the level finally gets to $20,000, we say that is enough. Just as the Tax Code today makes the trustee pay the rest of it back, we say the rest of it gets paid back. It doesn't hurt the plaintiffs at all. The plaintiffs have received what they are going to receive out of the settlement. It doesn't help the tobacco companies. They still have to pay the money. But the tax--in effect, the money the tobacco companies pay goes partially to the trial lawyers, and the rest goes to the U.S. Treasury, rather than all of it going to the trial lawyers. So the tobacco lawyers get paid what is fair--more than fair--and the plaintiffs have already received their reward. The tobacco companies still have to pay what they had to pay originally. The benefit is to the U.S. Treasury, Department of Defense, and the people we put in harm's way to carry out their missions.

The final argument made was one that I am not sure why it was made. My colleague acknowledged he knew this wasn't my motivation. Since I offered the amendment, it is unclear whose motivation therefore it would be--that it was a discriminatory tax policy to get at political enemies. This is what Nixon is alleged to have done. Of course, that is not the case here. I don't even know who these people are. I could not give you the name of one of them. I don't know how many there are. I don't know their politics or anything else. All I know is what others have said about them, which is that their fees are unconscionable, beyond human comprehension, that the work doesn't justify them, that the fees are excessive and unreasonable and should invite scrutiny, and so on and so on.

The question the law professor asked after going through the ethics rules about lawyers fees always having to be reasonable, the kind of fee contracts that my colleague from Nevada had with his clients--he goes through that and says fees cannot be clearly excessive. The fees have to be reasonable. Then he asked:

Are these fees, which in many cases amount to effective hourly rates of return of tens of thousands--and even hundreds of thousands--of dollars an hour, reasonable? I think to ask the question is to answer it.

At the end of the day, the arguments raised against this amendment, frankly, are all fallacious. There is no relationship to CEOs or other people who make a lot of money. They don't have the same fiduciary relationship that a lawyer has to his client. A one-third contingency fee is a good thing. We all stipulate to that. But it still cannot be unreasonable.

In this case, the amounts are so egregious that they go far beyond what the Senator from Nevada was talking about. Unprecedented? No. It is in the Tax Code today--the same 200-percent tax, the same application to the fiduciaries who charge more than reasonable fees.

By the way, that also applies to another kind of fiduciaries--these particular tobacco lawyers. It would not interfere with other private contracts. By its terms, it doesn't apply to that.

I think the bottom line here is that we are faced with the same choice we had before. We have an opportunity to generate some funds to pay for the things our troops need. We are on the Defense authorization bill. We are trying to authorize a lot of programs. Eventually, we are going to have to appropriate money for them. This amendment provides additional funds of, by my calculation, something on the order of about $9 billion, that we can apply toward the acquisition of this important equipment and the other things needed in our Defense bill.

I suggest we need to give that stuff to our troops, that this is a way to pay for it, and that we have the added benefit of conforming our Tax Code to a situation here that is totally unreasonable and unconscionable, in the words of many, and that is that some of the tobacco lawyers are reaping a windfall.

Money that is paid by the tobacco companies instead would be paid to the Treasury because it is far in excess of what is a reasonable fee. We have said, OK, we will not limit it at $2,000. Some people said a reasonable fee might be more than that. We said, how about $10,000 an hour? No, that might be a reasonable fee someplace. We said $20,000. I have not found anybody who can come on this floor and say to me that a legal fee, even in this case, of $20,000 an hour for all of these hours of work is reasonable and will meet the laugh test or the reasonableness test, which is the test all lawyers must meet and the test of the IRS Code with respect to fiduciary duties in the trustee context.

It seems to me we have a great opportunity to help our troops. We are not hurting anybody by this amendment. I do not even think we can argue we are hurting these billionaire lawyers. I think it would be hard for them to spend all they have, and the little bit they are going to be denied here can do a whole lot more good in equipment in the hands of our troops. They cannot justify those fees coming to them in a prospective way under the settlement agreement they are taking advantage of today.

This is the amendment we will vote on first. I urge my colleagues to vote for it.

Then I urge my colleagues to vote against the underlying Lautenberg amendment. The easiest way to summarize the Lautenberg amendment--the Senator from New Jersey presented photographs and told some very disheartening stories of people who had been taken advantage of by other countries that harbor terrorists and that

the United States does not consider places where American companies should do business.

I totally agree with the Senator from New Jersey. We need to have a provision for sanctions in a case such as that. If it were not for the fact we already have one, I would be supportive of the Senator's amendment. But we do already have a provision. It is being applied by the President of the United States.

The point I tried to make earlier is that--and I am sure he did not mean to do it this way, but the language of the amendment of the Senator from New Jersey is even more restrictive than current law because it talks about ownership and control and defines it as at least 50 percent when, in fact, you can keep the ownership under the 50 percent and still have effective control of the corporation.

In the case of the application of sanctions the way the President does it, he takes into account both factors so that a company that keeps the ownership at that level, under 50 percent, is not at all exempt from the application of sanctions imposed by the President of the United States because we also take into account the element of control.

The Treasury Department and the State Department oppose the Lautenberg amendment because it restricts the President's authority in ways it is not restricted today.

If there are any situations in which we need to apply these sanctions to countries where they are not applied today, I am perfectly willing to discuss that with anybody and urge the administration to do so. We have the authority today. The President is utilizing it. It does not seem to me, therefore, that the amendment of the Senator from New Jersey should be supported.

I urge my colleagues to support the Kyl amendment, which will be voted on first, and oppose the Lautenberg amendment. That vote, I understand, will begin at 5:30 this afternoon.

I yield the floor.

Mr. President, will the Senator from Nevada yield for a question? Is there a division of time for both sides? Has the Chair announced how much time remains on both sides?

Mr. President, the State Department and Treasury Department strongly oppose this amendment because it is more restrictive than the current authority exercised by the President under IEEPA. The amendment would focus solely on ownership, which is a standard that can easily be circumvented and would be less effective than the administration's approach, which applies not only to ownership but also to control.

It is very easy for a company to get just under 50-percent ownership but still control the subsidiary. Under the Senator's amendment, no sanction would be permitted in that circumstance. So rather than broadening the authority and making it more capable of adding sanctions to what we already have, it would actually restrict the authority the President currently has.

That is why both Treasury and the State Department say let the President exert the current authority he has, which is broader. It is not a choice between helping people such as the Senator alluded to. This President is applying sanctions in those countries precisely where this condition exists.

I urge my colleagues to vote against the Lautenberg amendment and don't weaken the provisions already existing. Allow the President the flexibility he needs.

Mr. President, let me say that the remarks of the distinguished chairman of the Armed Services Committee, the senior Senator from Virginia, are indeed disturbing because it would be the first evidence in this conflict that the chemical weapons Saddam Hussein once had and which we had no evidence of destruction might now be surfacing and might be used against our troops. It is, as he said, important that we continue to pursue this. We hope it is a single event rather than something that will repeat itself. But in any event, it brings home the seriousness of the proposition.

I commend him for not only bringing it to our attention today but also for the work he and the committee have put into bringing this Defense authorization bill to the floor.

It is a difficult time. We are not only focusing on the multiyear transition of our force structure but also the bringing of new technology to our military in an evolutionary way at the same time we are trying to provide the resources necessary to fight the war in Iraq and Afghanistan and other resources for the war on terror and building up our intelligence capabilities through the Defense Intelligence Organization and others.

This is a very complicated and difficult time in defense planning. The bill the committee has put together is a very well-structured and a very forward-leaning bill, as well as a bill that takes care of the troops who are being put in harm's way today. I commend the chairman and members of the committee for the fine product they have put before us.

I will speak today primarily about one aspect. It is not the war on terror but rather the way in which at least an element of high technology is being integrated into our forces to meet a different kind of challenge. It illustrates the fact that at the same time we are fighting this war on terror and the action in Iraq, we also have to think about the other challenges we are going to be facing in the future and be prepared to deal with them at that time.

It is unfortunate but true that the sophisticated weapon systems that are available to our troops today were on the drawing boards maybe 20 years ago and did not go into production until a few years ago because of all of the work that has to go into their development and their testing and their ultimate deployment. We do not have the ability to simply snap our fingers when we need a new weapons system and bring it online immediately. It takes years of work to get it to that point.

A good example is, and a system we had to rely on to some extent in the first gulf war, in the area of missile defense. Missile defense has been with us ever since the pronouncement of President Reagan in his great announcement in the early 1980s that with the advent of ballistic missiles, a genie that would never be put back into the bottle, we were going to have to develop effective defenses against them or they would be the weapon of choice in the future for the delivery of high explosive but potentially nuclear weaponry, as well as chemical or biological weaponry. As a result, President Reagan embarked upon a scientific venture to find a way to intercept missiles. There was a great deal of research that went into this. Frankly, we came close during the end of the Reagan administration and first part of the first Bush administration of actually being able to deploy missile defenses.

But one of the arguments opponents always made was more testing was necessary and we should not actually go to the deployment of the system until we could better prove it could defeat any conceivable threat. At the time, the potential enemy was the Soviet Union. The Soviet Union did, indeed, have a sophisticated intercontinental ballistic missile system, one that required us not only to defeat a rudimentary kind of missile but one that might have decoys, that might have other kinds of penetration aids, ways defensively to throw our interceptor missiles off course.

So there was always a game being played between perfection being the enemy of the good versus actually getting something deployed that would take care of most of the threat. At the end of the day, there was not sufficient support in the Congress to actually deploy a system, as a result of which a great deal of time and money was spent on ballistic missiles but nothing was ever produced.

Along came the Clinton administration. The Clinton administration also understood that especially with the rise of the threat from North Korea, Iran, and China, as well as the leftover threat from the Soviet Union, but in a much more benign setting now that Russia was emerging as the power out of the ashes of the Soviet Union, there was still going to be a need to deploy some kind of system. As a result, the Clinton administration decided upon a ground-based system of 100 interceptors primarily potentially at a site partially, at least, in Alaska that would be our basic way of beginning to deal with ballistic missile threat.

Even the Clinton administration understood this was not the be-all and end-all. This would not necessarily be the end of the development of ballistic missile interceptors because as the offense became more sophisticated, so, too, the defense would have to become more sophisticated. But it was a way to begin the deployment and deal with the threat from a rogue nation, a nation like North Korea or Iran, for example, which would not have the sophisticated penetration aids of a nation like the Soviet Union.

The question then came when the second Bush administration came to power, would it be possible for us to move away from the constraints of the ballistic missile treaty, the ABM treaty, to actually think about deploying more sophisticated and capable systems that were not permitted under the ABM treaty. It was agreed with the Russians that a new treaty would replace the ABM treaty, a treaty which would permit both countries to get rid of most of their offensive weapons, their nuclear weaponry, and much of this was to be delivered on top of ballistic missiles, as a result of which the means for delivery of those nuclear weapons would be eliminated as well as the nuclear weaponry itself.

That decision was made and an agreement was entered into between the United States and Russia, and as a result, the United States began to think about a more creative way to actually deploy a rudimentary missile defense system. By then, the threat from Russia had eroded and we saw primarily the threat from the so-called axis-of-evil countries as the one we were going to have to deal with.

The decision was made, since we wanted to put something into place quickly, that what we would do is combine the initial deployment of the system with continued testing so we would actually have a test bed available to us to provide the real conditions for a real test; have a real missile defense system in place to actually do the testing that would be the most sophisticated and end part of the testing program.

We went through a series of tests that were highly scripted, that told us what we needed to know about the component parts of the system, and it was time to put it in operational mode to test it in that mode.

GEN Ron Kadish, the general in charge of the Ballistic Missile Defense Organization, put it very interestingly:

The criticism we get is that we are not operationally

testing the system before we put it in place. My response to

that, which people don't seem to want to accept, is you can't

operational test the system until you put it in place.

Of course, General Kadish is exactly right. You can only do so much hypothetical testing. There is a point at which you need to put it in place so you can go forward with the operational testing. This was the concept the Bush administration decided to pursue.

It is strange that very concept now is being criticized and presumably will be the subject of amendments that will be offered in the Senate to take away from funding for the ballistic missile defense system. It will generally contend that more testing is required; that in effect we need to test this until we are absolutely certain it can do everything it needs against every potential adversary without question, by which time many years will have passed, much more money will have been spent, and we still will not have anything to show.

It might be interesting to note that during the first gulf war we were actually exposed to the rationale for proceeding as we are proceeding with the missile defense system. At that time, Saddam Hussein launched Scud missiles at Saudi Arabia, at Kuwait, at the U.S. forces there, at the country of Israel, and there was no missile defense system in place at that time. The Israelis did not have the Arrow missile which they now have and which we hope will provide an effective missile defense system against something like the Scud missile for the state of Israel. What we had was an anti-aircraft missile called the Patriot. It was a very capable system. But we needed something to defend against the Scuds.

Very hurriedly we sent to the theater batteries of Patriot missiles. Literally, on the way, as they were being prepared for transit and in transit and as

they were being set up, we were adjusting the computer components, the radar connections and tracking systems and the like, to try to make these Patriot systems more robust, more capable, faster acting, more discerning, so they might actually hit a ballistic missile rather than an airplane, which is what they were designed to be against in the first instance.

Lo and behold, it turned out through the ingenuity of people literally on the ground, the Patriot missile system was made to be somewhat effective against some of these Scud missiles. Certainly not as effective as a finely developed missile defense system would have been, but the point was we made do with what we had because we did not have a choice. We were in the middle of a conflict and we had to come up with some way to defend our troops and defend our friends.

Lest my colleagues forget, remember, the single largest number of casualties in the first gulf war against Americans, 28 were killed when a Scud missile hit an Air Force base with American airmen and others present. It demonstrates you cannot wait until you have the perfect

system. When you are in a conflict with people and they are working as fast as they can, it helps to have something ready to go even if it is not perfect.

That was the reasoning behind the Bush administration's decision to move forward with the development of the system and not wait until every conceivable aspect of testing could be done, but to actually get it up to the point where it could be deployed for operational testing, and at that point we would be able to literally kill two birds with one stone.

We would not only have an operational test bed capable of continuing to perform the tests necessary, but we would also have an operational capability of some robustness, probably not enough to defeat a Russian missile, should one be launched by accident, for example, but certainly one that might be sufficient to take out a North Korean missile.

The thinking was that not only would you serve these two purposes, but you would also serve another very important purpose; and that was to discourage the countries that were beginning to proliferate weapons of mass destruction, and the missiles to deliver them, from developing these missile systems because of the notion that whatever they did, however much effort and time and money they put into it, we would have a way of defeating it, so it would not be worth their while--in effect, a deterrent, to say: The United States will not permit you to have an effective missile against us, so do not bother to try to develop and deploy it.

We believe that could be important because of some things I will say in a moment relating to the exchange of information between countries such as China and Pakistan and North Korea and Iran and other countries that began to proliferate components and technology for the trading of these missiles. So the threat would not be just from one country but would be from several countries. We have to nip this in the bud, and developing a good missile defense would be one way to do that.

So from the original notion, which, as I said, was to have 20 missiles in combination between a site in California and a site in Alaska, to the development of another 10, which would be put in Alaska, and then another 10, following that, at a site to be determined--and this is the so-called missiles numbered 31 through 40. These are not yet funded. They are part of a long leadtime funding that is the subject of this bill and which might be the subject of an amendment.

Let me go back and put all this into perspective. The Defense bill itself is just a little over $10 billion for ballistic missile defense research and development. It is key to the development and deployment of this capability about which I have been speaking. The threat from ballistic missiles is not waning; it is growing.

Today there are nearly three dozen countries, according to our intelligence, that have or are developing ballistic missiles of increasing range and sophistication. It includes the two remaining ``access of evil'' members, Iran and North Korea, as well as their fellow terrorist regime Syria.

Some of the latest developments, which unless indicated otherwise, are all taken from the DCI's most recent semiannual ``Report to Congress on the Acquisition of Technology Relating to Weapons of Mass Destruction and Conventional Munitions,'' are as follows:

First, North Korea: It continues its development of long-range missiles. Its Taepo Dong 2 missile, which is capable of reaching the United States with a nuclear weapon-sized payload, may now be ready for flight testing. So this is not a hypothetical threat.

The Channel NewsAsia reported earlier this month that Pyongyang is nearing formal deployment of the Taepo Dong 2 and is now gearing up to test engines for the missile.

Recent press accounts have also raised the possibility that North Korea is working on new intermediate-range ballistic missiles. According to a May 6 Los Angeles Times article, the South Korean press has reported that two new missile bases are under construction in North Korea. These bases would reportedly be used for a new missile capable of reaching U.S. bases in Guam and possibly Hawaii.

North Korea not only presents a problem because of its own capabilities but also because of its proliferation of ballistic missiles and related technologies to potential adversaries of the United States.

According to the DCI report:

Throughout the first half of 2003, North Korea continued to

export significant ballistic missile-related equipment,

components, materials and technical expertise to the Middle

East, South Asia, and North Africa.

Recent press reports indicate that Kim Jong Il has been negotiating with the Iranian regime on the sale of the long-range Taepo Dong 2.

Iran: The DCI report says:

Ballistic missile-related cooperation from entities in the

former Soviet Union, North Korea, and China over the years

has helped Iran move toward its goal of becoming self-

sufficient in the production of ballistic missiles.

Iran's ballistic missile inventory is among the largest in the Middle East.

Last June, Iran made some significant advances in its program, conducting a successful test of the 800-mile-range Shahab-3 missile. If operational, this weapon could alter the strategic balance in the Middle East, placing Israel and U.S. bases in Turkey within Iran's reach. Iran is also seeking to produce a 1,200-mile Shahab-4 missile.

According to CIA Director George Tenet's recent testimony to the Senate Intelligence Committee, Iran, as North Korea, has been willing to supply missile-related technology to countries of concern.

The PRC, the People's Republic of China: In addition to the threat posed by the development of ballistic missiles by terrorist-sponsored regimes that I have noted, we should not forget about the improving capabilities, as well as the WMD and ballistic missile proliferation, of the People's Republic of China.

The intelligence community's most recent report on foreign ballistic missile development assessed that China could begin deploying its 5,000-mile-range DF-31 missile during the first half of this decade. China's even longer range ballistic missile, the DF-41, could be deployed in the latter half of the decade. I remind my colleagues this is now 2004.

China also has approximately 500 shorter range missiles aimed at Taiwan.

According to an article in today's Washington Post, the Chinese Government warned Taiwan's President to pull back from ``a dangerous lurch toward independence''--their words--``or face''--and I am again quoting their word--``destruction.''

Given that warning, as well as numerous others like it, the United States should take very seriously not only the missile threat posed to Taiwan but also that posed to the United States.

Finally, despite relatively new missile-related export regulations, Chinese entities continued, during the first half of 2003, to work with Pakistan and Iran on ballistic missile projects. Additionally, during that same time, Chinese firms continued to provide materials or assistance to the ballistic missile programs in Iran and North Korea.

So you see a combination of countries willing to work with each other

toward the development of these missiles, all of which could be threatening to the United States and our interests.

So what will missile defense deployment accomplish? Well, as I said, both defense and deterrence.

Deployment of the layered missile defense system will permit the United States freedom of action by eliminating the possibility that we would be susceptible to nuclear blackmail by a country such as North Korea.

Missile defense will also reduce the incentives for proliferation by devaluing offensive missiles. If a rogue actor views missiles as less likely to be effective because of our defenses, he will also be less inclined to spend as much time or money trying to acquire them.

Finally, missile defenses, in a worst case scenario, will save Americans lives.

This is worth doing. I would like to quote again General Kadish, who made this point earlier this year. He said:

We should not choose to be vulnerable. We have proven that

from a technological standpoint and a practical standpoint we

can intercept ballistic warheads in flight. And to say now

that we can technologically defend ourselves and then choose

not to is, in my view, a recipe for failure.

The first obligation we have as legislators, as opinion leaders, as leaders in this country, is to ensure the defense of the United States of America and American citizens. We have to do that with the development of ballistic missile defenses because it is the one threat that exists against us which we do not yet have a capability of defeating. But we are on the verge of deploying that capability. We have to proceed with it and not retrench under the rubric of ``more testing is necessary.''

There are challenges. The ideological opposition to missile defense, unfortunately, still exists. Last year was the first year that the President's overall request for missile defense was met. In the previous years it had not been. In fiscal year 2003, ballistic missile defense research and development had been reduced by $80 million, and the year before that by $530 million.

In addition to that, restrictive language has been adopted by this body, creating a false choice between two alternatives, which I will speak to in a moment.

Last year's authorization for the fiscal year 2003 Defense authorization bill required the administration to decide whether $814 million would be spent on missile defense or terrorism. This was money that the administration had requested for its missile defense organization, and it was spent on that. But the President, in effect, was faced with a false choice. Which one, in effect, critics were asking, was more important? Of course, the bottom line is, they are both important. In the United States, we have the capability of doing both. Indeed, we have no choice but to do both. In fact, we have no choice but to do several things in this defense budget. You cannot decide that one is more important than the other and, therefore, you have to forego spending on one for the benefit of the other, if you have the capability of funding them all. So missile defense versus the war on terror would, indeed, be a false choice.

It is clear that we have needs in Iraq and Afghanistan and the war on terror, but we don't have the luxury of confronting those needs while at the same time overlooking or ignoring the ballistic missile threat from a country such as North Korea or Iran. I ask my friends, who were so shocked that something like 9/11 could happen, what their response would be if one of those missiles were launched against the United States, if we had no defense against them landing on one of our cities. I would hope those who have been opposing the deployment of missile defenses would acknowledge responsibility in that environment.

Let me respond to one potential amendment that might come up and then conclude my remarks. I have talked about the fact that there may be an effort to cut money from the Missile Defense Program to fund some other program such as armor for Humvees or vests for our soldiers or something of that sort. All of these things are being fielded as quickly as we can field them, as my colleagues well appreciate. In other words, diverting money now from missile defense to more body armor or armor for Humvees won't speed up 1 minute the deployment of that particular defensive equipment in Iraq.

For whatever reasons, there will be an effort to take money from the ballistic missile program and apply to it those kinds of programs, I suppose, because they would presumably have a great deal of public support. I reiterate, those programs are totally funded today and are being provided, and we do not need to take money from the ballistic missile defense program as part of this Defense authorization bill.

The funding that is provided in the bill will allow the construction and implementation of the ballistic missile defense test bed that will be used to conduct more realistic system-wide tests at the same time that it provides a near-concurrent initial operational capability in case of an attack. As I said, it is consistent with President Clinton's proposal for national missile defense that planned to deploy 100 ground-based interceptors. This will provide for the addition to the initial 20 interceptors at Fort Greely and Vandenberg Air Force Base, of 20 additional ground-based interceptors at Fort Greely, at sea, and perhaps even at some overseas location to be determined.

The budget request specifically in the chairman's bill makes a downpayment on the ground-based interceptors Nos. 21 through 40. It is the long lead funding to provide: No. 1, additional test articles necessary to conduct planned future integrated flight tests--and I pause here to say, for those critics who say we need more testing, this is the money for the testing; so if you vote to cut this money, you are actually cutting the money for more testing; No. 2, an expanded interceptor inventory to address estimated growth in foreign ballistic missile threats; No. 3, maintain steady industrial base production lines for the interceptors and kill vehicles in the event an expanded inventory is deemed necessary; and, No. 4, ground-site preparation activities for interceptors Nos. 21 through 30.

Any cuts to the ground-based missile defense deployment that is contemplated will cripple effective deployment of the initial test bed system that itself will allow for more realistic testing.

So if you accept the notion of and assumption inherent in capabilities-based acquisition and spiral development, then criticisms about insufficient testing before initial deployment of this ballistic missile system are simply invalid.

I commend the chairman and the committee for their great work in bringing this bill to the floor and finally funding our missile defense system so that we can not only continue the testing that is so important, but also at the same time provide some initial capability should we need that capability.

I hope my colleagues will join together, support the chairman, support the committee, support the President in what he is trying to do, and not engage in a thousand cuts that could end up crippling this program yet once again, getting us to the point of deployment but no further than that point.

I urge my colleagues to support the chairman and the committee and defeat such amendments.

Mr. President, first, I commend the Senator from Texas for a fine statement. I note that his coming to the Senate and joining the Judiciary Committee has been a tremendous asset for that committee. His leadership of the subcommittee which he chairs and the serious and complete way in which he addresses issues has really helped us to tackle some of these very difficult issues. I appreciate his leadership very much.

Mr. President, I ask unanimous consent to speak for 20 minutes in morning business.

Mr. President, I want to talk about the prisoner abuse in Iraq and how it ties into the conduct of our war there to ensure that we can prevail

in this struggle in which we have engaged. I want to begin by talking about a New York Times newspaper article this morning which I think puts into better perspective the nature of the offense that has been committed in that prison and then move to a discussion of how our troops are trained to conduct investigations at a military installation in Arizona, my State, and conclude with remarks that were offered this morning in an op-ed piece by Charles Krauthammer that I think puts all of this into a perspective that we would do well to pay some attention to.

Let's begin with the last 10 or 12 days of discussion about what occurred in the prison in Iraq and how that has affected public opinion about the morality of our effort there. There has been a lot of speculation. I have urged colleagues and others to avoid speculating until the reports are in, until the facts are before us, because speculation cannot only lead to wrong conclusions, it can actually damage our position around the world.

Some seem all too anxious to prove that what happened there had to be the result of orders from higher-ups, that it just couldn't possibly have been the actions of a few soldiers acting in a very wrong way; it had to come from higher-ups.

It is possible there were some orders from higher-ups that had an effect, but sometimes there seems to be almost a desire, a hope that we will find it was the orders from somebody higher up, and the political implications of that are obvious.

I have seen speculation that because families and friends of some of these soldiers, understandably, were in disbelief that their friend or child could have done this without being ordered to do so, that, therefore, is proof the order had to come from above.

It is not proof. The defense is understandable. It may or may not be true. But what is becoming a little bit more clear is that, despite the number of photographs, these incidents appear to have been isolated, to have occurred on few occasions in one place by a very few people without having been ordered from above.

This is the point of a New York Times article of today, ``U.S. Soldier Paints Scene of Eager Mayhem'' at Iraqi prison. It is the story of the statement given to investigators by SPC Jeremy C. Sivits who is under court-martial. The statement was released by a lawyer for another soldier. That is how the New York Times acquired it.

The sense of the story is that Specialist Sivits described a scene of misconduct by a few of his colleagues:

. . . not authorized by anyone in the chain of command and

with no connection to any interrogations.

Of course, we have seen a lot of speculation that it must have been ordered, it must have been in connection with softening up the prisoners. The first clear word of what happened by someone who was willing to talk to investigators and admit his own culpability in the process suggests that is not true. Let me continue to quote:

The soldiers knew that what they had done was wrong,

Specialist Sivits told investigators, at least enough to

instruct him not to tell anyone what he had seen. Specialist

Sivits was asked if the abuse would have happened if someone

in the chain of command was present. ``Hell no,'' he replied,

adding: ``Because our command would have slammed us. They

believe in doing the right thing. If they saw what was going

on, there would be hell to pay.

The story goes on to note that this activity occurred at least in his presence apparently only on two occasions, most of it on one particular evening, and that at one point a sergeant heard the commotion and looked down to see what was going on and yelled at them in anger to knock it off. The story obviously concludes that this is, according to this specialist, a case of bad behavior by a few people who obviously had inadequate supervision but who were not doing this to soften up prisoners or doing it at the command of anyone. And, indeed, they knew if their commanders found out there would be ``hell to pay.''

This is important because if it is true, what it demonstrates is that what we have been saying all along is right. America does not conduct its interrogations this way. It does not contain and handle prisoners this way. This conduct was an aberration. It will not be tolerated. The guilty will be forced to pay, and we will try to understand what is necessary to implement to see that it doesn't happen again.

Secondly, if in fact this is correct, as the New York Times has reported, it is not just these people who will pay but their immediate superiors who allowed them to conduct this activity. Because even though those superiors may not have known about it or certainly participated in it, they created the circumstance under which this could occur. They bear some responsibility as well.

What about the interrogation techniques? There has been a lot of speculation about that. First, the official U.S. Government policy, the official Defense Department policy, is that the laws of the Geneva Conventions will apply in Iraq, period. There is no exception for really bad guys. There is no exception in order to extract information. Some confusion exists because of the fact that the Geneva Conventions don't apply to a group such as al-Qaida. That is a fact. It is not something subjective.

The reason is because by the very terms of the Geneva Conventions, they apply in cases where countries have signed the conventions, and they apply to situations in which you have an army, a military force that wears uniforms, that does not conduct activities against civilians. In the case of the al-Qaida, none of those conditions applies. Technically the laws of the Geneva Conventions do not apply to al-Qaida. That is a true statement. Because people have made that point, there has been then a leap to the conclusion that, therefore, the U.S. Government is mistreating al-Qaida. But that is not true.

Our policy is that notwithstanding the fact the Geneva Conventions don't apply to al-Qaida detainees, the humane treatment called for in the Geneva Conventions will still be the rule, the law, the order of the day for our handling of those prisoners so that the same kind of treatment that is required by the Geneva Conventions will even be applied to people who are not technically entitled to the protection. That is our official U.S. policy.

It is trained at Fort Huachuca, an Army base in southern Arizona, which has a mission, among other things, to train interrogation and collection of intelligence.

Let me read a couple of items from an article from the Tucson Citizen of May 13.

I ask unanimous consent to print in the Record a May 14 article from the New York Times, a May 13 article from the Tucson Citizen, and an article to which I will refer, an op-ed piece by Charles Krauthammer, dated May 14, from the Washington Post.

The Tucson Citizen's article in part reads as follows:

The abuse of Iraqi detainees at Abu Ghraib prison violated

all training standards for Army interrogators and has

commanders and students at Fort Huachuca angry and fearful of

potential repercussions. ``It's anathema. It's not what we

train. It's not our values,'' said Maj. Gen. James Marks,

commanding general of the U.S. Army Intelligence Center. ``I

can't fathom who would do that * * * I'm disgusted by it.

Those aren't interrogation techniques. That's a bunch of

rogue soldiers conducting evil acts.''

Just a couple other sentences from the article:

Many at Fort Huachuca, home of the 111th Military

Intelligence Brigade which includes the training programs for

interrogators and counterintelligence agents, say the actions

of a few soldiers at Abu Ghraib have cast a pall on the

Army's intelligence-gathering community.

It goes on to note that ``it reflects on the rest of us that are training to do the right thing.'' And just one other quotation from General Marks:

We do not authorize any form of hands-on in terms of use of

our interrogation techniques.

The article goes on to talk about precisely what kind of interrogation is permitted, what the techniques are to get information. But it makes it very clear none of the things that have been depicted in these photographs are even remotely authorized.

So it actually ties in with the article from the New York Times that this could not have been done by military intelligence to gather information from these prisoners. That is an important point because some have begun to question the morality of our involvement in Iraq and the mission which so many of our young soldiers have put their lives on the line to achieve, and now several hundred have died to achieve.

One of our colleagues made the point this prison had done horrible things under the regime of Saddam Hussein, and now it was open under new management, namely the U.S. Government.

I find that statement to be deplorable because it suggests a moral equivalency between what the U.S. stands for and has done and what Saddam Hussein has done in that same prison. We have heard about and seen some evidence, and I believe there will be additional evidence coming out that reveals what Saddam Hussein did to people in that prison--the torture, the rape, the murder--absolutely despicable actions that have absolutely no comparative value to what occurred--if on more than a couple of occasions--by a handful of American soldiers who did wrong and who will be punished for doing wrong.

The difference between our morality and the morality of Saddam Hussein is it was his intention to inflict this kind of despicable horror, and the magnitude of it was horrific, whereas in the United States, we stand for exactly the opposite. We will punish those who conducted this kind of activity and we will make it clear that is not our standard. Again, the moral equivalency is so utterly lacking it is amazing to me anybody would even try to make that connection. This is especially sad in the week in which Nick Berg's death was brought home to us in such a

graphic way by the same kind of terrorists who held sway in Iraq under Saddam Hussein.

This is the kind of enemy we are fighting. It requires us to take stock about what we need to do as policymakers in discussing this publicly, because the message we send to the world, to terrorists, and to the Iraqis in particular, is going to play a large role in how people view our effort and, therefore, whether it can succeed in the long run.

If our leaders are criticizing our effort as an immoral effort, as nothing more than a continuation of what Saddam Hussein was doing, then it is doubtful our effort can succeed. Americans must stand up for what is right in this country and what they know our country to be, and we must make it crystal clear to the rest of the world we have a moral purpose, that we do have a commitment to the rule of law, and anything that goes outside of that rule of law will be dealt with appropriately. That is the difference between our society and the society we replaced in Iraq.

That is very critical for us to discuss and to not have our leaders undercutting us and, therefore, calling into question the legitimacy not only of the mission but of the activities of our soldiers and others fighting this war.

The third article I would like to discuss is an op-ed, actually, entitled ``The Abu Ghraib Panic,'' May 14, Washington Post, by Charles Krauthammer. As usual, it takes a person such as Charles Krauthammer to put this into perspective. He always comes to the rescue when policymakers and pundits and others begin to fly off on tangents that miss the point, that begin to take us down the wrong path in terms of a logical analysis of what is going on. He tends to bring us back to the central point we need to consider and discuss and the policy that needs to be carried out.

His op-ed today brings us back to the central point by beginning with the discussion of those who have called for the resignation of the Secretary of Defense. He points out this exercise is what he calls ``ministerial responsibility''--the notion that, in some parliamentary governments, if something goes wrong down below, the leader of that particular department resigns, or offers his resignation, in order to demonstrate the responsibility of the government. He points out that is not a doctrine that has held in the United States, where there is no responsibility of the individual involved.

Indeed, he points out even when there is responsibility for the individual--the higher up individual--and that individual takes responsibility, it has not been the case in this country to call for the resignation of the individual.

The example he gives is the one of former Attorney General of the United States Janet Reno, who not only was on duty when the Branch Davidian compound in Waco was attacked by American forces in 1993 but ended in the deaths of 76 people. She not only was on duty, but she ordered the attack, which resulted in, among other things, the death of 20 children. That was an awful event. She took responsibility for it. She said, ``It was my decision and I take responsibility.'' There was much applause for her willingness to do that. But she didn't resign. She was not asked to resign. She was not fired by the President, notwithstanding her direct responsibility for what had occurred.

Compare that to the case today with Secretary Rumsfeld, who, by all accounts, has done a tremendous job at the Department of Defense. He has successfully executed two wars. He is trying to transform our military. He is now involved in an effort to ensure the security of Iraq so power can be turned over on June 30; and a handful of soldiers, at a very low level, in a prison in Iraq commit crimes against prisoners somehow becomes his direct responsibility, such that he has to actually resign from his position in order, somehow, to demonstrate the morality of our position there.

He doesn't have to do that because it was not his responsibility. He was responsible for saying the laws of the Geneva Conventions apply. He was trying to make sure everybody under his command was doing their duty. In no way will it ever come to pass that responsibility, in terms of culpability for this action, went very far up the chain. As a result, it is more a frustration that some people don't know anything else to do that they call for his resignation. Of course, there is a political component, too. The President's enemies use this as a way to get at him. One can expect that in a political environment. But it has severe consequences when people around the rest of the world begin to think this is the opinion not only of key policymakers in America but represents a policy that should be carried out by our Government and, if it is not, somehow our Government is very wrong. So there are consequences of the people who discuss this in that light.

As Charles Krauthammer points out, that has never been the standard in the U.S. If you look to the case of Janet Reno, where there really was culpability, and yet she wasn't fired, or she did not resign, you can see this could be, in the case of many people, a political exercise rather than an exercise in responsible criticism.

The point Krauthammer tried to make here is this whole business about Secretary Rumsfeld is a sideshow, in any event, and that what is happening is some Americans who are not adequately grounded in what this country is all about, what the war is about, are beginning to panic. Let me quote something and then wonder aloud. He says:

The panic is unseemly. The pictures are shocking and the

practices appalling. But how do the actions of a few depraved

soldiers among 135,000 negate the moral purpose of the entire

enterprise--which has not only liberated 25 million people

from 25 years of genocidal dictatorship, but has included a

nationwide reconstruction punctuated by hundreds, thousands,

of individual acts of beneficence and kindness by American

soldiers?

Indeed, this panic, I believe, is due, among other things, to the fact that America has enjoyed such success and has had to sacrifice so little in recent time that Americans unfamiliar with the sacrifices and the moral purposes of previous engagements, such as World War I and World War II in particular, and Korea and Vietnam, unfamiliar with the horror of war and the requirement of a citizenry to back their fighters with steadfastness and courage and support, rather than panic at the first sign that something is going wrong.

This panic is due to a citizenry today that may not have been adequately educated to the fundamental purposes of why we are there-- and to the extent that is the policymakers' fault, I will take responsibility for that as well--and perhaps are insufficiently grounded in the kind of conflicts we have fought in the past and why it was so important for the citizens in doing their part to support the effort and not panic at the first sign that something was going wrong.

I think of D-Day, the anniversary of which is coming up soon, and the terrible decision General Eisenhower had to make with the weather forecast suggesting a very difficult crossing of the channel, the predictions of German fortifications having been weakened being wrong so that when our troops hit the beaches, they were cut down by withering fire, the great number of casualties at Omaha Beach and all the rest where we thought it was going to go better than it did, and second-guessing of our generals all the way up to General Eisenhower would certainly have been warranted. But the American people did not do that, and the British people did not do that.

Winston Churchill, Franklin Roosevelt, and other leaders rallied the American people and the British people, the allies, to support the cause, notwithstanding the number of casualties that were occurring, notwithstanding the fact that efforts were going wrong.

This is what President Bush has tried repeatedly to do, to say: Look, we knew when we went into this it would be difficult, it would be costly, it would take a long time. I remember his State of the Union Address in which he said that, and it has been repeated many times since.

I think one thing we all appreciate about President Bush is that he does have a resoluteness, a willingness to make tough decisions and then the courage to stand by them. But we Americans have to back him in that. You cannot panic when the going gets tough. And in war, sometimes the going does get tough.

This is a case where it was due to our own fault. Some of our own soldiers did

something very wrong, and we have to deal with that. But that is not a reason to panic and believe that the effort in which the other 135,000 are engaged is wrong or is falling apart and cannot be achieved.

It is rather a time for us to go back to our moorings, what Americans believe in and what we understand was the purpose of this effort, and do what we can do in this effort, which is to support the effort, to support the decisionmakers, to support the Commander in Chief and, most of all, to support the troops.

I think of Pat Tillman, who played football in my home State, who decided to forego a lucrative football contract with the Arizona Cardinals because he wanted to do his part in this effort. He went to Iraq and then went to Afghanistan and was killed there. He did his part. The challenge to us is, what can we do? We cannot go over there and fight, but we can sure do something to support those who are doing the fighting. I do not mean we cannot question. That is our job. We do not just meekly go along with what everybody says about this, but we can certainly not do anything to undercut the effort of those putting their lives on the line. That is what we can do. That is our part. And it starts with not panicking, as Charles Krauthammer said.

Things go wrong in war. They went wrong in every war we fought. We practically got pushed off the Korean peninsula in the Korean war. Then General MacArthur, in a brilliant move in Inchon, landed behind enemy lines, drove the enemy back, and did what Americans always do in the end: We succeed when we do not panic.

I suggest to those who are wringing their hands today about what is going on in Iraq to just take a deep breath, stiffen your spine, and remember what this country has gone through in its great history. We have sacrificed a lot and it has been for good, moral purpose, and such is the case in Iraq.

Let me quote again from the Krauthammer op-ed:

We are obsessing about the wrong question. It is not: Is

our purpose in Iraq morally sound? Of course it is. The

question today, as from the beginning, remains: Is that

purpose achievable?

Then he goes on to say this:

Doability does not hinge on the pictures from Abu Ghraib.

It hinges on what happens on the ground with the

insurgencies. The greater general uprising that last month's

panic-mongers had predicted has not occurred. The Sadr

insurgency appears to be waning. Senior Shiite clerics, local

leaders and demonstrators in the streets of Najaf have told

Moqtada Sadr to get out of town. Meanwhile, his militia is

being systematically taken down by the U.S. military.

As for Fallujah, we have decided that trying to fully

eradicate Sunni resistance is too costly in U.S. lives.

Moreover, this ultimately is not our job but one for the 85

percent of Iraqis who are not Sunni Arabs--the Shiites and

Kurds who will inherit the new Iraq. We have thus chosen an

interim arrangement of local self-rule in the Sunni hotbeds.

And if that gets us through the transition of power to

moderate Iraqis, fine.

This seems entirely lost on the many politicians and

commentators who have simply loss their bearings in the Abu

Ghraib panic. The prize in Iraq is not praise for America

from the Arab street nor goodwill from al-Jazeera. We did not

have these before Abu Ghraib. We will not have these after

Abu Ghraib. The prize is a decent, representative,

democratizing Iraq that abandoned the pan-Arab fantasies and

cruelties of Saddam Hussein's regime.

That remains doable. What will make it undoable is the

panic at home.

As I said, as usual, he is right on target.

So what does that teach us? Getting back to the beginning of the discussion of the Secretary of Defense and his responsibility, let's be careful of the message we send to the rest of the world. Some of my colleagues have said the Secretary must resign because we need to send a message to the Arab world. What message is it? That we are sorry? We have sent that message. That we take responsibility? We have already taken responsibility.

I think it sends a message of weakness. Remember what the mantra of Osama bin Laden is--that there are weak horses and strong horses, and the world will respect the strong horse. He believes he is the strong horse, that we are the weak horse. He cites over and over Lebanon, Somalia, Vietnam, and he believes that Iraq falls into the same category; that if his al-Qaida and their allies in Iraq can continue to inflict casualties on us, if we continue to have self-doubt, disunity, undercut our leadership, panic over what a few of our soldiers did in the prison, in the long run he will prevail because he is the strong horse and we are the weak horse. That is his entire philosophy, and it motivates a lot of people in that part of the world who hate us.

The way to defeat that philosophy is to be the strong horse because of our morality as well as our military power, because of what we stand for in terms of returning freedom to people who did not have it, and because we do not mean to gain anything personally from it except an additional degree of security from terrorists.

Mr. President, what we say matters. We need to conduct the debate and, indeed, a debate is entirely appropriate, but we need to conduct the debate in a way that will not undercut the effort of those who are putting their lives on the line. Sometimes even words in this Chamber go over the top. Sometimes words of my colleagues go over the top.

Certainly, there are many outside of this Chamber who reveal a panic of the kind that Charles Krauthammer has written about, which will undercut our ability to carry out our mission, and that, at the end of the day, is the important point.

So I urge my colleagues and all others who are discussing this issue to try to conduct the debate and discussion in a serious, responsible way that does not undercut the efforts of our leaders and our troops on the ground. If we do that, then we will have done our part in achieving victory. We will have been responsible. We will not have undercut the effort, and I think we will have distinguished ourselves in the one way that we can act to achieve victory.

Teddy Roosevelt made a comment that kind of wrapped up what he did in life with all of the actions in which he engaged. Somebody asked him a question about his life and he said: I just have appreciated the opportunity that I have had to work on work worth doing.

What we are doing today is work worth doing. We need to remember that, be supportive of it, and be supportive of those we have asked to do the work.

I suggest the absence of a quorum.

Mr. President, on behalf of the leader, I announce that discussions are continuing to find a way to work through the judicial nominations that are pending on the Executive Calendar. We had hoped to begin scheduling the noncontroversial judges for votes by the full Senate. At this time, there are still objections to scheduling these votes and, therefore, it will be necessary to file cloture on one of these nominations today.

Having said that, the majority leader is still hopeful that an agreement can be reached and that this cloture vote will not be necessary.

Mr. President, I send a cloture motion to the desk.

Mr. President, I ask unanimous consent that this vote occur at 2:15 p.m., on Tuesday, May 18, and that the mandatory quorum under rule XXII be waived.

Mr. President, I ask unanimous consent that the Senate resume legislative session.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 363 which was submitted earlier today by Senators Coleman and Dayton.

Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motion to reconsider be laid upon the table, and any statements relating to this matter be printed in the Record.

Mr. President, on behalf of the leader, I ask unanimous consent that when the Senate completes its business today, it adjourn until 12 noon on Monday, May 17; I further ask that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and the Senate then begin a period of morning business until 2:30 p.m., with the time equally divided between the two leaders or their designees; provided that at 2:30 p.m., the Senate begin consideration of Calendar No. 503, S. 2400, the Department of Defense authorization bill, as provided under the previous order.

I thank the Senator from Nevada.