Floor Statements

Mr. President, what is the regular order, may I ask?

I thank the Chair. So we are on the STOCK Act and Senator Leahy has introduced this amendment, which I appreciate that he has done that. This underlying bill, as we said yesterday, responds to the concern about whether Members of Congress and our staffs are covered by insider trading laws; that is, laws that prohibit a person from using nonpublic information for private profit.

I suppose most of us here believed we have always been covered by insider trading laws. There were some questions raised about that at the end of last year. In fact, our committee held a hearing on two bills offered, one by Senator Kirsten Gillibrand of New York, the other by Senator Scott Brown of Massachusetts, on this question, and we had some broadly respected, credible experts on securities law who said in fact there might be a question about Members of Congress, whether Members of Congress and our staffs were covered by Securities and Exchange Commission law and regulation on insider trading for a reason that would only make sense to lawyers and therefore may not be sensible but I will mention it anyway.

It is that the law relating to insider trading is actually the result not of a specific statute prohibiting insider trading, it is the result of regulations and enforcement actions by the SEC pursuant to antifraud provisions of the Securities Exchange Act of 1934.

In these regulations that have become the law of insider trading, a necessary element for prosecution for violating insider trading laws is the breach of a duty of trust, of a fiduciary duty. The law professors told us at our hearing at the end of last year that in fact one might raise the question of whether Members of Congress had a duty of trust as defined in insider trading cases, which is more typically the duty of trust that a corporate executive, for instance, has to stockholders. I presume that most Members of Congress would say of course we have a duty of trust, we have a very high duty of trust to our country, to our constituents. But it is, apparently, in the contemplation of securities law, perhaps not covered by the existing definitions, so this bill makes clear that Members of Congress and our staffs are covered by insider trading laws.

We cannot derive personal profit from using nonpublic information that we gain as a result of our public offices. That is made absolutely clear by stating that indeed we do have a duty of trust to the Congress, to the government of the United States and, most importantly, to our constituents, to the people who were good enough to send us here.

I do believe that provision gives us an opportunity to take a step forward. It is going to take a lot more than one step to rebuild the trust and confidence that the American people have lost at this moment in our history in Congress and in our overall Federal Government.

There are two other very important provisions. One requires Members of Congress and our staffs to file a statement within 30 days of any transaction, purchase, or sale of a stock or other security with the Senate--and that would immediately go on line, as will now, as a result of this legislation, the annual financial disclosure statements that we file. Incidentally, these statements are now available to the public but you have to go to the office here in the Senate to get them and copy them. That is out of date and not consistent with the general principles of transparency and disclosure that I think people rightly expect of Congress today.

Our bill makes clear that both the annual statements and the 30-day statements have to be filed on line. That should help provide the transparency that the SEC itself has said--in testimony before the House of Representatives on this bill or one quite similar to it--would assist them, the SEC, in guarding against insider trading by Members of Congress or our staffs; that is, that the regular reporting, the 30-day reporting and the on-line reporting, would assist them in preventing insider trading.

I know there are a lot of amendments filed; actually, thankfully, not too many, but a significant number. Seeing the presence of the Senator from Oklahoma, I hope he may be here to take up one of his amendments. Obviously we would all like to begin to debate the amendments and have some votes.

I yield to the Senator from Maine, Senator Collins.

Mr. President, first let me thank Senator Collins for making these points because there is concern about this particular part of the bill. There is a lot of misinformation around. I totally agree with her interpretation, which is that the reporting on the 30-day basis in the bill will not change what is reported and therefore both transactions within Thrift Savings Plan accounts and in qualified mutual funds will not have to be reported. I thank my colleague for clarifying that.

Mr. President, I rise to thank my friend from Oklahoma for coming to the floor and introducing these three amendments. It begins the process of considering the legislation.

I wish to go back to the first point he made, which I think is an important point--that we have to do a lot more than deal with the concern that Members of Congress and our staffs are not covered by insider trading laws to restore the confidence of the American people in this institution. It has taken a long time to get us as low as we are in public esteem today, and it is going to take a long time, I am afraid, to get back to it.

The first thing we can do is begin to work more across party lines to be less partisan, to be less ideologically rigid. This institution represents people across the widest array of origins, of ideologies, of political policy beliefs, et cetera. We can't function without compromise. When I say ``compromise,'' I don't mean a compromise of principle, I mean compromise in the sense that one can rarely in a democratic institution of this kind--small ``d''--get everything one aspires to get on a particular piece of legislation. If a person gets half of what they are aspiring to or even more, hopefully, that is a good result.

It reminds me of what my dad used to say about marriage, which was that in a successful marriage a spouse felt they were giving in 70 percent of the time to the other spouse, and maybe that is a good guideline for a successful Congress. We are not doing that enough here, and we are particularly not doing it enough on the central question of the deficit annually and the debt overall. The public sees this, so they are upset.

I wish to, therefore, put what we are doing in the STOCK Act in context. I think if we pass it, both because of the clarity with which we state that Members of Congress and our staffs are covered by anti- insider trading laws and the disclosure improvements we make in the law, we will take a step forward in beginning to rebuild some confidence the American people have lost in this institution, but, O Lord, it is only the beginning. The more we can deal particularly with the imbalances we have created in our Federal books, the more we are going to restore confidence in this institution.

Also, I hope we can prove on this measure and any number of others that we are still capable of working across party lines to get things done. That is, after all, why our constituents sent us here.

This is the beginning of my 24th year in the Senate. It has been a privilege. This is my last year in the Senate since I have announced I am not seeking reelection. I am forced to say that last year was the least productive of the 23 years I have been here. I hope we can perhaps on this bill prove, at least, that we can come together and get this done, and it will be the beginning of getting other much more important things done, including, as Senator Coburn has stated, doing something about the debt and the deficit. I have been privileged to work with him on some ideas we have put forward to make that happen. We can't do it and make everybody happy. We can't do it and make all the interest groups happy. But that is not why we came here. We came here to support and protect this extraordinary country of ours that we are blessed to be citizens of. So I say that by way of a first reaction.

The second is that I wish to take some time in that context to take a look at amendments Nos. 1473 and 1474 that the Senator from Oklahoma has introduced, the first to prevent the creation of duplicative and overlapping Federal programs, and the second is this requirement that all legislation be placed online for 72 hours before voted on in the House and Senate. Both of these on first response have some merit, in my opinion. Certainly the first one has a lot of merit.

I am concerned and I know all of us--meaning Senators Collins, Brown, and Gillibrand--who have worked to bring the main parts of the bill out are concerned that we not go too far afield in amendments to the bill for fear that it will weight it down and it will ultimately get stopped or, at worst, that the majority leader will take the bill off the floor because we are not coming to a point of completing our business because amendments keep coming in that are not relevant. But these are two serious amendments, and I want to look at them and take a little time to respond.

The third, amendment No. 1476, I guess is a good news, bad news reaction that I have. The good news is that this really is directly relevant to the substance of the bill. The bad news, if you will, is that I am opposed to it because it really does--it is a totally different approach to what we are trying to do in the bill. I don't think it accomplishes the intention of most Members on this bill because it would really replace the entire STOCK Act with the requirement that Members or anyone in the government who has to fill out a financial disclosure form certify that they--we--haven't traded on inside information. I don't think as a result that the amendment does anything to clarify the current ambiguity in the law; that is, the question we heard raised before our committee by these experts on securities law about whether Members of Congress are really covered. If we don't clarify that we have a duty of trust to bring our behavior totally within existing securities law against insider trading, then I don't think the legislation would get us to where we need to go and we are still left with the kind of ambiguity that creates the kind of mistrust I know none of us want.

We have spoken at length on this question with the Securities and Exchange Commission staff, and I must say they share the concerns I have just expressed and believe that if the legislation doesn't explicitly state that a duty of trust exists and is held by Members of Congress, then the legislation will not do what is needed to get at the problem, which is whether an insider trading case brought before a court could be objected to by a Member of Congress who is the target of that suit.

Yes.

Well, it would give me less heartburn, but it would probably still leave me needing at least a Rolaid.

We should reason together. But, as the Senator from Oklahoma knows, there are three main parts to the STOCK Act. One is the declaration we have just talked about, and the second and third are disclosure requirements, one 30 days, and then the other is the online requirement. But I am glad to talk with the Senator about adding the requirement of a certification to the STOCK Act as opposed to substituting it for the whole STOCK Act.

Mr. President, I thank Senator Coburn. Let me go back to the first point, but it is not the question he ultimately asked.

The Senator is raising a very high standard because I hope nobody is involved in insider trading as a Member of Congress. I presume they are not. There were some serious allegations made last year by people outside Congress against Members of--certain Members of Congress, a small number. They have been denied and responded to by those Members. I presume that if there is any substance to them, the SEC will be investigating and take action. But obviously, necessarily, for dealing with insider trading, we would not know it is going on because they are using nonpublic information privately to secure private profit. So, as the Senator from Oklahoma well knows, the purpose of the law is to make sure that if anybody is doing this--and again, I know the people here, this is an honorable group of people, but if anybody is acting dishonorably--human nature being what it is--and a prosecution is brought by the Securities and Exchange Commission, then there won't be any defense that the law doesn't cover Members of Congress. It is simple as that.

But let me come to the other point. I know there is a lot of unease amongst some Members about the 30-day requirement in this bill, which is that within 30 days one has to file a disclosure of any trade in a stock or security that a Member has been involved in that has a value of more than $1,000. There is a lot of concern about the requirements that will put on Members. Ultimately, the Ethics Committee will adjudicate this. I assume there would be some rule of reasonableness if an unintentional error was made, and I certainly am happy to try to clarify in report language what our intention is, but the overall intention is to create transparency.

While I am on this--and I will be very brief with this--I know that people are worried about what it will take to fulfill this requirement and that it is in some sense unfair to ask Members of Congress to have to disclose stock purchases or sales within 30 days. But it is my understanding that people defined by law as corporate insiders have to declare it within 48 hours of trades they make in their company stock. The staff of the SEC have to publicly declare their trades within 5 days. So it is possible to do this. I gather it is possible to do it by simply asking whomever trades for you to copy the office here in the Senate when a transaction occurs, and then it automatically goes into a database online. We are asking more, and for some it will be an inconvenience. But we are different. We hold a public office. We have a public trust and public responsibility. So that is why this provision was in the original STOCK Act introduced in the House, bipartisan, and here in the Senate, both by Senator Gillibrand and Senator Brown. But I do want to state I am happy to work with the Senator from Oklahoma on report language that will encourage the Ethics Committee to apply a kind of rule of reason if there is an unintentional violation of that 30-day reporting requirement.

Mr. President, the Senator from Oklahoma is asking good questions.

Let me say first, as a point of clarification, as a result of an amendment submitted in the committee by Senator Paul, and adopted, the insider trading parts of the bill do relate to executive branch employees. The 30-day disclosure requirement does not. I am happy to work with the Senator on this. I gather the administration itself applies certain disclosure requirements to a group of people in the administration at a Cabinet level or somewhat slightly below, but, obviously, not to all executive branch employees. But we can talk about this one.

I continue to be concerned, overall, that we are going to extend this so far and make it so ``good'' that it is going to fall of its own weight and not make it through. But the Senator is raising a reasonable question, and Senator Brown and I just talked about it. We are glad to continue the conversation.

That is right. We file annually.

Mr. President, I thank my friend from Massachusetts.

Seeing no one else seeking recognition, I suggest the absence of a quorum.

Mr. President, let me join in what the Senator from Massachusetts said. Senator Begich, with Senator Tester, offered an amendment in committee that has not gotten as much attention as some other parts of the bill--but it will have at least as great a positive effect as the other parts of the bill--which is so simple that it makes you wonder why we have not done it before. I have been quoting Dr. Seuss lately, and I won't do it here, but there is a saying that sometimes the best answers to questions that are complicated are simple answers--something like that; I am losing something in the translation.

But Senator Begich and Senator Tester require that the annual financial reports we file, which are public documents--for the public to see them, they or some representative have to go to the office of the Secretary of the Senate to look at them or make copies. We are in the information age, the digital age. So Senator Begich and Senator Tester took a small step on the bill--which is a large step for the American people--which is that these reports will now be online and electronically filed. Everybody, not just the SEC, will have immediate access to those financial disclosure reports.

Incidentally, the 30-day provision for disclosure will also be covered by that, and will also be available.

The Director of Enforcement, Robert Khuzami, of the SEC, testified before the House committee on the comparable bill that the 30-day requirement and the annual requirement for electronic filing would assist the SEC in carrying out its responsibilities.

Once again, I thank the Senator from Alaska for his contribution to the bill.

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

I suggest the absence of a quorum.

Madam President, I have no objection to proposing the amendment.

Madam President, I would be remiss if I didn't say a word of thanks to Alan Frumin for his service to the Senate.

When I first came to the Senate in 1989 and had the privilege to occupy the chair, I had two great mentors. One was the great Senator from West Virginia, Robert C. Byrd, and the other was Alan Frumin. Both were steadfastly reliable.

I was just one of many who sat in the chair. We are often asked questions whose answers do not immediately spring to mind, and there was a voice that I heard--in this case, it was not from above but from slightly below--that clarified exactly what the rules of the Senate required.

Alan has been a true and faithful public servant, has held himself to the highest standards, and helped this inherently unruly body to be ruly. For that, I thank him and wish him well in his next chapter of life.

Mr. President, I thank the leader for his statement and thank him for his patience. I know people are critical of the way Senator Reid has been forced to operate to try to get anything done, but if you go through a day like we have gone through, you understand why he has had no choice.

Mr. Paul, the Senator from Kentucky, offered an amendment. We had a very thoughtful negotiation with him about modifying the amendment. We came to a meeting of the minds and were ready to go, and then another Member said: I will not consent to you voting on Senator Paul's modified amendment unless you promise me a vote.

As Senator Reid well knows, in the early years I was here this kind of behavior sometimes happened at just before the final vote on a bill or perhaps before a recess was about to be declared. But to conduct oneself in this way at the very beginning of a debate on a bill about which there is bipartisan support--yesterday, it was clear on the cloture motion, only two Senators voted against it. It is a real good government bill, and to hold it up in this way is frustrating.

I quote the majority leader, who is a straighter talker: It is ridiculous.

So at the end of a long day, we have nothing to show for our labor. I apologize to the Members of the Senate. But it requires some reasonableness from our colleagues to proceed.

I thank the Chair. Mr. President, I want to begin debate, and I do so with gratitude that the distinguished ranking member Senator Collins is here, as well as Senator Brown of Massachusetts, whose original legislation, along with Senator Gillibrand, forms the basis of this proposal that comes out of our committee.

I want to go back to the beginning, to President Washington, whose Farewell Address seems to take on more relevance as time goes by, although it is obviously more than 200 years old now. Washington said in his Farewell Address that ``virtue or morality is a necessary spring of popular government'' and that we cannot ``look with indifference'' at anything that shakes that foundation or, continuing his metaphor, dries the spring.

I think we have to say in the long proud course of American history since then there have been very few times where the springs of trust in popular government have been more dry than they are in our time.

I am grateful my colleague Senator McCain is not on the Senate floor now because when we get to this subject, he usually says: When you look at the public opinion polls on Congress, the numbers of people who have a favorable impression of this body are so low we are down to close relatives and paid staff. Usually, when I am with him, I add: I'm not so sure about all the paid staff.

But, in any case, we have an opportunity with this piece of legislation to take a small step forward toward rebuilding public trust in Congress and to restoring those necessary springs of popular government--the trust of the people in us. This goes back just to last fall and early winter. A book appeared by an author named Peter Schweizer who was then interviewed on ``60 Minutes.'' He made allegations that some Members of Congress and their staffs have used information gained on their jobs to enrich themselves with timely investments, particularly in the stock market. Those allegations, as Washington might have said, certainly dried the springs of trust that we should have with the American people, even more than they already are.

So today I am proud to rise to bring before the Senate the STOCK Act, which stands for Stop Trading on Congressional Knowledge Act of 2012. This piece of legislation puts into law language and reporting requirements that will make it clear to the American people we understand being a Member of Congress means we have a responsibility to the public, a public trust, and any Member of Congress or staff member here who violates that trust will be punished.

This bill was reported as an original bill out of the Committee on Homeland Security and Governmental Affairs on December 14 with a bipartisan vote of 7 to 2. In advancing this bill, as I have said, Senator Collins and I worked closely with Senators Gillibrand and Brown of Massachusetts, both of whom sponsored versions of the STOCK Act. Senator Levin, who has just spoken, worked closely with us on the substitute amendment that will be filed, and I thank them all for their contributions on this piece of legislation. I also thank the Senate majority leader, Senator Reid, for deciding this important piece of legislation would be one of the first items we take up in Congress this year.

The specific rules making insider trading illegal are found in a large body of Securities and Exchange Commission regulatory activities pursuant to section 10(b) of the Securities Exchange Act of 1934 and court decisions interpreting those activities. Our Committee on Homeland Security and Governmental Affairs held a hearing on this topic in December, and the Securities and Exchange Commission actually filed a statement with us for the record declaring its belief that currently there is authority in the law to investigate and prosecute congressional insider trading cases. The chief enforcement officer of the SEC said:

Trading by congressional members or their staffs is not

exempt from the Federal securities laws, including the

insider trading prohibitions.

But other witnesses at that hearing, including Georgetown University Law Professor Donald Langevoort and Columbia Law School Professor John Coffee told us that while the SEC might be technically right, in their opinion there was ambiguity in the law and they couldn't be sure how a court would rule if there was a challenge to the SEC's authority to bring an insider trading case against a Member of Congress or a staff member.

That is because, as the professors explained, a person may be found to have violated insider trading laws only if he or she breaks a fiduciary duty, a duty of trust and confidence owed to somebody-- typically to the shareholders of a company or to the source of the nonpublic information. They argued it is possible a judge might decide that Members of Congress do not have a fiduciary duty--in the way in which it has normally been interpreted--to anyone with respect to the nonpublic information that we receive while carrying out our duties.

Now, I must say that I find it hard to see it that way. It seems to me self-evident that a public office is a public trust and that Members of Congress have a duty to the institution of Congress, of course to the government as a whole, and ultimately, most importantly, to the American people not to use information gained during their time in Congress--and unavailable to the public--to make investments for personal benefit. But the fact is there

are some very experienced and intelligent legal experts who told our committee they couldn't certify a judge would see it exactly that way.

That is the first purpose of this act, the STOCK Act: to clarify the ambiguity of securities law by explicitly stating that Members of Congress and our staffs have a duty of trust to the institution of Congress, to the United States Government, and to the American people-- a duty that Members of Congress violate if we trade on nonpublic information we gain by virtue of our public position.

The bill also requires the ethics committees of both Houses of Congress to issue guidance to clarify that Members and staff may not use nonpublic information derived from their positions in Congress to make a private profit.

Besides these changes--and this is different and important--our committee decided the STOCK Act should require Members of Congress and their staffs to file public reports on our purchases or sale of stocks, bonds, commodities, futures, or other financial transactions exceeding $1,000 in value within 30 days of the transaction. Right now, as the Acting President of the Senate knows, these trades are reported once a year in our annual disclosure statements. This proposal would change that to within 30 days of the trade.

More timely reporting of this kind will allow not just the SEC but the public to assess whether there is anything suspicious or wrong about the timing of the trade and conduct in the Senate. That kind of real transparency will be an additional deterrent to unethical or illegal behavior.

The bill also contains another important provision offered in committee by Senators Jon Tester and Mark Begich that will require the financial disclosure forms filed by Members and staff to be filed electronically and perhaps even more significantly, therefore, be available online for public review. The fact is, our reports are now available for public review. But people have to go to the Office of the Secretary of the Senate and ask for copies of them. There is no sensible reason to make someone physically come to the House or Senate to see a copy of one of our financial disclosure forms. They are public records and they ought to be easily available to the public online, and this proposal will make sure that happens.

Those are the three major provisions of the proposal, as I see it: to affirm a clear fiduciary duty under the insider trading law so it is clear Members of Congress and our staffs are covered by them; secondly, to require disclosure of trades in excess of $1,000 within 30 days; and, third, that those trades and our annual financial report will be electronically filed and, therefore, be available online.

May I say, as we begin the second session of the 112th session of Congress, we begin with so much distrust of our Federal Government that I think passing the STOCK Act could have a positive effect on how we are being perceived, and particularly if, as I hope, we pass it on a bipartisan basis. The STOCK Act was passed out of our committee in exactly that way. I believe it has the support of Members and leaders of both parties in the House and Senate, and President Obama has promised to sign it as soon as it comes to his desk.

So let me end by quoting again from our first President, this time from his Inaugural Address, where he set the ideals for the new government that our country would have. He said:

The foundations of our national policy will be laid in the

pure and immutable principles of private morality . . . and

the preeminence of free government [will] be exemplified by

all the attributes which can win the affections of its

citizens and command the respect of the world.

Enacting this proposal into law will say to our disappointed, our skeptical, our troubled constituents that we understand and accept Washington's wisdom.

I thank the Chair, and at this time I yield to my dear friend, the distinguished ranking member of our committee, Senator Collins.

I was going to reserve the right to object to Mr. Brown's motion on behalf of Mr. Hoopes because I was about to that say the above-mentioned Mr. Hoopes got his start in my office and I was looking for an opportunity to say that.

We have about 20 minutes until the vote on the motion occurs. Obviously, we are all here together--Senator Collins, Senator Brown, Senator Gillibrand, Senator Tester, and I--to urge Members to vote for cloture, to take up this measure. It would be a ray of light--warm light--if we pass this measure, this cloture vote, overwhelmingly. Then we could go on to debate it.

Some people may have amendments--obviously, I presume they will--they want to offer. I hope that in considering amendments, our colleagues will focus on the problem that stimulated this legislation, that led Senator Brown and Senator Gillibrand to introduce it and led our committee to pass it out on a bipartisan vote, which was the concern that Members of the Congress and our staffs are not covered by insider trading laws. This legislation makes clear that we are covered by insider trading laws and therefore can be investigated and prosecuted for violation of those laws, both by the SEC and the Justice Department, but we have also asked the ethics committees of both Houses of Congress to issue interpretive guidance, making clear that insider trading is also a violation of the ethics rules of both Chambers.

I am sure there are a lot of different aspects that Members of Congress, including ourselves on our committee who worked on this bill, might have in mind to also correct problems that exist, perhaps to also try to help rebuild public confidence in the institution of Congress, but I really appeal to our colleagues not to do so in a way that will make it more difficult or at worst impossible to fix the wrong, the problem that motivated this legislation, which is fear that Members of Congress and our staffs are not covered by insider trading laws.

I have talked to Senator Collins about this. Members have other ideas. Please introduce them as legislation. To the extent they are forwarded to our committee, we will give them hearings and due consideration and try to approach them thoughtfully and then follow the will of the majority of members of our committee. In other words, let's try to not make this measure so sweet or so good that it cannot pass.

I say to my colleagues, I just had a very unusual metaphor come to mind. I go to Dr. Seuss, one my favorite Dr. Seuss books I have not read in a while, ``Thidwick the Big-Hearted Moose.'' I don't know if you remember Thidwick, but he was a very good-natured moose. One by one through the pages of the book as Dr. Seuss records it, other animals in the forest want to lodge in his enormous antlers. He welcomes them until finally there is too much there and his antlers fall off and they all fall to the ground. We don't want this wonderful bill, which really does accomplish some very important things, to be so loaded that it falls to the wayside like Thidwick's antlers and does not pass.

I urge my colleagues to join us in a spirited debate, but let's exercise the kind of restraint, on a bipartisan basis, that will allow us to have a significant, bipartisan, good-government accomplishment here at the beginning of this session of Congress.

I listened to a conversation a while ago where somebody was asked, why is the public opinion of Congress so bad? And the answer was that it is because Congress has been so bad. This has not been a time in the history of this great institution that I think any of us feel good about. This is an opportunity to do something real that we can not only feel good about but, more important, that our constituents can feel good about.

I hope we will have a resounding vote at 5:30.

I yield to the Senator from Massachusetts.

I appreciate the comments.

Mr. President, I am pleased to report that I just received notice that within the hour the administration put out the Statement of Administration Policy--the so-called SAP--strongly endorsing this legislation, S. 2038, and we appreciate that very much. It is a very strong statement of support for the principles and exactly the kinds of things Senator Collins, Senator Brown, Senator Gillibrand, Senator Tester, and I have been saying.

As the President said in his State of the Union speech, if we can get this bill to his desk--and the sooner the better--he will sign it as soon as he possibly can.

If there is no one else who wishes to speak at this time, I would suggest the absence of a quorum.

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

Mr. President, I ask unanimous consent that the Senate proceed to a period of morning business, with Senators permitted to speak therein for up to 10 minutes each, and that Senator Grassley be recognized to speak for up to 20 minutes.

Mr. President, on behalf of the majority leader, he has asked me to announce there will be no more votes tonight.

If I may say, on my own behalf, we will go to the STOCK Act, S. 2038, tomorrow morning and hope anyone who has a relevant amendment will come to the floor and offer it.

I yield the floor.

Mr. President, I ask unanimous consent that Hala Furst, a Presidential Management Fellow on detail to the Homeland Security and Governmental Affairs Committee, be granted the privilege of the floor for the duration of the debate on S. 2038.

Mr. President, I rise today to pay tribute to the courageous men and women who are struggling for freedom in Belarus.

Almost 1 year ago, on December 19, 2010, elections took place in Belarus. At that time, some in the United States and Europe hoped that this vote would be a turning point for Belarus and that its authoritarian ruler, Aleksandr Lukashenko, would finally begin to pursue the political and economic reforms demanded by his people.

In fact, the December 19 election was a turning point for Belarus-- but not in the way that some had hoped. It soon became obvious that the election had been egregiously rigged by the regime. In response, thousands of Belarusians from every background peacefully took to the streets in protest. It was the most significant public demonstration the country had seen in over a half decade, and the Lukashenko regime responded with violence.

On that day, Belarusian security forces detained or arrested over 600 peaceful protestors. Hundreds more were surrounded by armored tanks and beaten by thugs dispatched by the regime. The Lukashenko regime arrested seven opposition candidates who participated in the vote, severely beating one candidate. In the year that has followed the election, hundreds of people--including several Presidential candidates--have been sentenced to lengthy prison terms in sham trials that have again revealed Belarus' judicial system to be nothing more than a political tool abused by the regime. It is a system that has institutionalized torture and denies its prisoners access to family, lawyers, medical treatment, and open legal proceedings.

I should note that the peaceful protests that erupted in Belarus 1 year ago took place just 2 days after a 26-year-old man in the Tunisian town of Sidi Bouzid set himself on fire, which in turn sparked a series of peaceful protests that overthrew the long-ruling dictator in that country--starting the Arab Spring. But as the winds of change sweep across north Africa and the Middle East, ousting some of the world's most entrenched regimes, it is important for us to remember that there remains one last dictatorship in Europe; that is, the Lukashenko regime in Belarus.

Despite the extraordinary changes taking place around the world, the Lukashenko regime has sustained, and even intensified, its crackdown against its own people. This is a regime that recently outlawed nearly all forms of public speech and peaceful assembly, including silent protest. It is a regime that, instead of responding to the legitimate demands of its people, has sought to cultivate close ties with other dictatorships, like the regime in Tehran. It is a regime that, according to reports, delivered military equipment to the Qadhafi regime in Libya in February 2011 just as it prepared to slaughter its own people.

Over the past year, I have been encouraged by the close cooperation between the United States and the European Union to hold accountable those in Belarus who are responsible for the brutal crackdown there. Continued transatlantic coordination on Belarus is vital. The Euro- Atlantic community of democracies must speak with one voice to ratchet up pressure on Lukashenko. And while the United States and the EU have taken strong and important steps, including imposing travel bans on nearly 200 Belarusian officials, freezing the assets that these officials hold in the West, and both renewing and imposing new sanctions on Belarusian state-owned enterprises, more can be done.

In particular, I hope that in the weeks ahead, the United States and the EU will implement sanctions against other state-owned entities that enrich the Lukashenko regime at the expense of the Belarusian people.

Furthermore, it is critical that at a moment when the Lukashenko regime is looking for a financial lifeline to keep himself in power, the United States and our allies work together to ensure that responsible international institutions and actors--including the IMF-- do not lend money to that regime. It is clear--as we have seen over the past 2 years--that such funds will only be used by Lukashenko to prop up his illegitimate and repressive rule. And I continue to urge our own government to state publicly that the United States will not support any further IMF assistance to Belarus until we see credible political and economic reforms by Belarusian authorities, beginning with the immediate and unconditional release of all political prisoners in Belarus.

At the same time we are shocked and appalled by the cruelty and thuggishness of the Lukashenko regime, we should also take note of the remarkable courage and perseverance of the Belarusian people, who press on in their struggle for greater freedom and opportunity.

Over the past year, I have been honored to meet with Belarusian opposition leaders and activists. These conversations have been extremely powerful, as I have heard directly from the men and women who are facing repression on the front lines and looking for help from us in their noble struggle.

Today, I join my colleagues in saying to the brave people in Belarus who are striving to secure their fundamental freedoms: We have not and will not forget about you and your important cause. We remember your names. We will stand in solidarity with you and in support of you until you achieve your goal, which is a free and democratic Belarus. And we believe more than ever that the day will come when Belarus will be free.

The extraordinary revolutions that are taking place across the Middle East and north Africa should remind us all that the United States does best in the world when we stand with our values and the people who share them. And there is much we can do to help the Belarusian people.

To begin with, we must work with our European allies to ensure that the financial and technical assistance we have pledged to the Belarusian opposition is disbursed and implemented as quickly as possible, particularly for groups operating inside of Belarus. And we in Washington must continue to engage with the Belarusian opposition and its emerging leaders, and lend them our support.

Let me conclude by saying that I do not know when Belarus will be free, but I have no doubt that someday it will be free. I am confident that the future of Belarus belongs not to Lukashenko and his thugs but to the Belarusian people.

Indeed, the future of Belarus belongs to the dissidents who are in jail or who are being harassed--to Ales Byalitski, the founder of Belarus' largest human rights organization who recently celebrated his 49th birthday in prison. It belongs to Alyaksandr Klaskouski, a 33- year-old former traffic police officer in Minsk who pleaded with security forces on December 19 not to use force against peaceful protestors and who himself stood between riot police and unarmed protestors. He, too, is now serving time in a maximum security prison for his efforts. The future of Belarus belongs also to Natalia Kaliada, the director of the Belarus Free Theatre, who was arrested on December 19 but continues to press on in her work--to fight dictatorship with art. Natalia does this, as she put it in January when she testified before the Senate Foreign Relations Committee, because ``we want our spectators to think. When people start thinking, this is the most terrifying thing for a dictator.''

The future of Belarus belongs to every Belarusian who seeks a brighter future for their country--a future of democracy and opportunity. And we stand with them in their cause on this anniversary of the December 19, 2010, election--and on every anniversary to come, until Belarus is free.

Mr. President, today I wish to pay tribute to Virginia Gabriel of Clarks Summit, PA, who passed away on September 26, 2011, at the age of 93. To those who knew and loved her, she will forever remain an inspiration, a motivator, and a role model.

It is no coincidence that Virginia was born into what has been called the greatest generation. Like so many others of her generation, she and her husband Steven responded when the country called on them during a time of great need. Their commitment to the Nation was visible on the day of their wedding. As they exchanged their vows on the altar, Steven's Navy unit waited outside for the ceremony to end, at which point he joined them and together they departed for their assignment, which ultimately took them to the Pacific theater. Like Steven, Virginia also engendered a sense of social responsibility towards our Nation. Remaining stateside during World War II, Virginia did what she could to help in the war effort. This commitment to help our Nation took her to Bridgeport, CT, where she secretly worked at the Singer sewing machine factory throughout the war manufacturing bomber sights for American aircraft.

Beyond Virginia's devotion to our country in its time of need, she will always be remembered for her abiding commitment to her family and by those who profited from her presence. She made life better for everyone around her by lifting their spirits through her kindness, generosity, laughter, and memorable smile. Her love of family and their awareness of that love was an incalculable source of strength which propelled them forward every day. Evoking the same sentiment that Senator Edward Kennedy had for his brother Robert, Virginia provided strength in time of trouble, wisdom in time of uncertainty, and sharing in time of happiness. The manner in which Virginia lived her life, and expected her family to live theirs, leaves behind a legacy that ensures she will always be by their side.

Madam President, I rise today to speak about the two balanced budget amendment proposals currently pending before the Senate and to explain why I will vote against both even though I support a balanced budget amendment.

I fervently believe that the most pressing issue our country faces today is the need to gain control over the staggering Federal deficits and long-term debt that threaten our security. In thinking about the budget challenges we faced over the past year, I have often been reminded of something our second President said two centuries ago that remains hauntingly true today: ``There are two ways to conquer and enslave a nation,'' as President Adams put it, ``One is by sword and the other is by debt.'' President Adams' words have been echoed in our time by former Chairman of the Joint Chiefs of Staff, ADM Mike Mullen, who argued earlier this year that the national debt is the greatest long-term threat to our national security.

We can all agree that we must take on the challenge of addressing our deficit and debt. At the same time, as we have seen again and again over the past year, making tough choices is not an easy thing to do. Any responsible deficit reduction proposal will, by definition, be painful and unpopular because raising revenues and cutting benefits and favored Federal programs is painful and unpopular.

I am prepared to vote for a plan similar to that proposed by the Bowles-Simpson Commission, the Gang of 6, or the Rivlin-Domenici group because I believe this approach is responsible and addresses the toughest challenges we face head-on. Also, I would support a clean balanced budget amendment, which would compel Congress to make tough choices to raise revenues as necessary, rein in spending, and balance our budget.

However, the two proposals we are considering today, in my opinion, are problematic and marred by extraneous and ill-advised provisions that should never be part of our Constitution. These votes say so loudly how dysfunctional Congress has become. I want to vote for a balanced budget amendment that says clearly that Federal Government spending cannot exceed revenues. Yet I can't vote for either of these amendments because each contains a partisan part that does not belong in our Constitution.

I do not take the idea of amending our Constitution lightly. As we consider these amendments, let's not forget that our Constitution is the supreme law of our land; it reflects America's first principles and highest ideals, guaranteeing the fundamental rights that have been the cornerstone of the freedom and opportunity at the heart of the American experience since our founding.

However, given the dire fiscal situation we face--coupled with the reality that time and again Congress has been unable to break away from its partisan gridlock to make the painful but necessary decisions that must be made to save our Republic--amending the Constitution may be the only way to compel a balanced budget.

I have come to this conclusion first because it is clear that our budget process is clearly broken. The truth is that we in Congress have failed to uphold our foremost constitutional duties: managing our budgeting process. With annual deficits over $1 trillion and our national debt increasing over $4 billion each day, this is no time for Congress to flout the very laws we established to keep our country's fiscal health afloat and manage the budget process responsibly.

I am speaking in particular about the framework for our budget process which was first enacted into law in 1921 when Congress established the annual budgeting requirement and later in 1974 when the formal process for establishing a coherent budget was enshrined in law.

The failure to pass a budget resolution for the past 3 years is symptomatic of the deep problems we face with regard to our budget, deficits, and debt. Likewise, statutory attempts such as pay-go have not produced the kinds of results we need. At the same time, as we have seem over the past several months, Republicans and Democrats cannot seem to agree on how to reform entitlements--the biggest driver of our debt and deficits--or reform the Tax Code to ensure that our tax system is fair for most Americans, less deferential to special interests, and able to sustain the financing of our country's priorities over the long term.

It is regrettable that it has come to this, but it seems that perhaps the only way to get Congress to balance the budget is to make it a constitutional requirement.

Unfortunately, both proposals before us today are marred by extraneous and, in my view, ill-advised and unnecessary provisions. The Republican version, for example, would require that total outlays for any fiscal year not exceed 18 percent of GDP and a two-thirds majority vote in both Chambers would be required to override this requirement. I believe it is unwise to impose, as part of our Constitution, an arbitrary spending cap that would handicap future Congresses without regard to the unknown economic realities that future generations of Americans may face. Unless we can see into the future, we should not be in the business of predicting what level of spending will be appropriate 25 or 50 years from now.

Furthermore, the Republican proposal prohibits any bill that increases Federal taxes from becoming law unless it is approved by a two-thirds majority of both Chambers. This provision essentially gives extraordinary constitutional protection to potentially egregious tax loopholes and revenue-draining tax expenditures--the same parts of the Tax Code we have been trying to reform.

Likewise, the Democratic balanced budget amendment is not without its own faults. A provision prohibiting Congress from passing any bill that provides a tax cut to millionaires during a year that we run a deficit is not a statement that needs to be part of our Constitution. Moreover, the Democratic alternative exempts Social Security, which would essentially prevent Congress from reforming the program, which I believe it essential to ensure its solvency for generations to come.

On the whole, both the Republican and Democratic balanced budget amendments are short-sided for different reasons. Instead of focusing on the single task of providing a balanced budget requirement, ideological arguments abound in both proposals, making it virtually impossible to support either one.

As a result, I will not support either proposal. Instead, I encourage my colleagues from both parties to support a clean version of a balanced budget amendment that is worthy of inclusion in our Constitution.

If we work together to see beyond the fog of partisanship, it will become clear that there is not much disagreement about the basic and deeply troubling facts of our current fiscal crisis. For this reason, first and foremost, I hope Congress will step up and act on a specific and comprehensive proposal to reduce the deficit. In the end, process reforms will not allow us to escape the hard decisions we must face.

Mr. President, I rise to introduce legislation that would guarantee the jobs of Transportation Service Officers, TSO, who are called to active military duty, putting them on the same playing field as every other civilian employee called up to serve their nation in the uniformed services in times of need.

I want to thank my cosponsors for their support of this measure, including my colleague from Connecticut, Senator Richard Blumenthal, and the Ranking Member of the Homeland Security and Governmental Affairs Committee, Senator Susan Collins. Other cosponsors include Senators Burr, Akaka, Tester and Landrieu.

This is a very simple and straightforward bill that would close a loophole in the law that leaves Transportation Security Officers called to full time military service vulnerable to dismissal from their jobs upon return to civilian life.

The jobs of all other non-military public and private sector employees called up to active duty are protected under the Uniformed Services Employment and Reemployment Rights Act of 1994, USERRA. USERRA entitles a reservist, a member of the National Guard, or a veteran who is called to duty to return to their civilian jobs once their service is complete. The service member must meet certain, basic requirements, such as providing advance notice to their employer of their impending service and missing no more than 5 years of work under any one employer due to their service.

According to the law itself, the purpose of USERRA is to ``encourage non-career service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service.''

The law also minimizes the disruption to those who are called up to service by providing for their prompt reemployment when they return to civilian life and protects them from discrimination based on their active duty in the uniformed services.

This is simple fairness to those with the courage, determination, and love of country to serve in the uniformed services beyond any required service or normal tour of duty, and certainly at an age older than most soldiers.

TSOs, however, are not statutorily protected against dismissal from their jobs upon return from military service. In the aftermath of 9/11, when Congress moved with lightening speed to strengthen the safety of air travel, we provided the Transportation Security Administration with the broad authority it would need to hire and deploy

tens of thousands of new workers in a matter of weeks. TSOs became a select category of federal employees who were considered vital to the national security, and because of the unusual circumstances and broad authority given to TSA, they were exempted from many labor laws.

The Aviation and Transportation Security Act, ATSA, passed in November 2001, gives the TSA Administrator authority over all terms and conditions of a TSO's employment. Specifically, Section 111(d) of ATSA states: ``notwithstanding any other provision of law, the Undersecretary for Transportation Security may employ, appoint, discipline, terminate, and fix terms and conditions of employment . . . as the Undersecretary determines to be necessary.''

The Transportation Security Administration employs 3,500 reservists and another 15,000 veterans. The agency frequently recruits veterans, reservists, and members of the National Guard and benefits from their employment. We should make it easier for TSA to attract the best and brightest to its ranks, by ensuring these men and women have the job protections they need and deserve.

TSA has said that it complies administratively and voluntarily with USERRA. But without the force of law, reservists and National Guard members cannot count on redress if they believe TSA has violated

Mr. President, I rise to introduce legislation that would guarantee the jobs of Transportation Service Officers, TSO, who are called to active military duty, putting them on the same playing field as every other civilian employee called up to serve their nation in the uniformed services in times of need.

I want to thank my cosponsors for their support of this measure, including my colleague from Connecticut, Senator Richard Blumenthal, and the Ranking Member of the Homeland Security and Governmental Affairs Committee, Senator Susan Collins. Other cosponsors include Senators Burr, Akaka, Tester and Landrieu.

This is a very simple and straightforward bill that would close a loophole in the law that leaves Transportation Security Officers called to full time military service vulnerable to dismissal from their jobs upon return to civilian life.

The jobs of all other non-military public and private sector employees called up to active duty are protected under the Uniformed Services Employment and Reemployment Rights Act of 1994, USERRA. USERRA entitles a reservist, a member of the National Guard, or a veteran who is called to duty to return to their civilian jobs once their service is complete. The service member must meet certain, basic requirements, such as providing advance notice to their employer of their impending service and missing no more than 5 years of work under any one employer due to their service.

According to the law itself, the purpose of USERRA is to ``encourage non-career service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service.''

The law also minimizes the disruption to those who are called up to service by providing for their prompt reemployment when they return to civilian life and protects them from discrimination based on their active duty in the uniformed services.

This is simple fairness to those with the courage, determination, and love of country to serve in the uniformed services beyond any required service or normal tour of duty, and certainly at an age older than most soldiers.

TSOs, however, are not statutorily protected against dismissal from their jobs upon return from military service. In the aftermath of 9/11, when Congress moved with lightening speed to strengthen the safety of air travel, we provided the Transportation Security Administration with the broad authority it would need to hire and deploy

tens of thousands of new workers in a matter of weeks. TSOs became a select category of federal employees who were considered vital to the national security, and because of the unusual circumstances and broad authority given to TSA, they were exempted from many labor laws.

The Aviation and Transportation Security Act, ATSA, passed in November 2001, gives the TSA Administrator authority over all terms and conditions of a TSO's employment. Specifically, Section 111(d) of ATSA states: ``notwithstanding any other provision of law, the Undersecretary for Transportation Security may employ, appoint, discipline, terminate, and fix terms and conditions of employment . . . as the Undersecretary determines to be necessary.''

The Transportation Security Administration employs 3,500 reservists and another 15,000 veterans. The agency frequently recruits veterans, reservists, and members of the National Guard and benefits from their employment. We should make it easier for TSA to attract the best and brightest to its ranks, by ensuring these men and women have the job protections they need and deserve.

TSA has said that it complies administratively and voluntarily with USERRA. But without the force of law, reservists and National Guard members cannot count on redress if they believe TSA has violated

Mr. President, I thank my friend from Arizona. I appreciate this amendment he has offered. I believe I am now listed as a cosponsor. If not, I ask unanimous consent that I be so listed.

This amendment essentially codifies a very important memorandum of understanding between the Department of Homeland Security and the NSA, the National Security Agency. This is a perfect balance and exactly the kind of overcoming of stovepipes we need to see in our government.

Under existing law, the Department of Homeland Security has responsibility for protecting nondefense government, Federal Government cyberspace--cyber networks--and the privately owned and operated cyberspace,

which actually amounts to some of the most critical cyber infrastructure in our country is privately owned.

Today, as Senator McCain suggested, a target of attack by an enemy wanting to do us harm could be, for instance, our transit systems, financial systems, electric grid, and the like. What is embodied in this memorandum of understanding between DHS and NSA--which we will, by this amendment, codify into law--is to maintain the quite appropriate interface of the Department of Homeland Security with the privately owned cyber-infrastructure and those who own and operate it, yet utilizing the unsurpassed capabilities of NSA.

I appreciate that in this colloquy Senator McCain and I are entering into, we both make clear--and I appreciate that his intention here in offering this amendment is not to circumvent the need for broader legislation to protect our American cyberspace from theft, exploitation, and attack. It happens that the current occupant of the chair, the junior Senator from Rhode Island, has been a leader in this Chamber in pushing us to deal with these kinds of problems.

Senator Reid has announced that he will bring a comprehensive cyber- security bill to the floor of the Senate in the first work period of 2012. That is very good news for our security. As Senator McCain said, I don't know that we today have a more serious threat to our security than that represented by those who would do us harm by attacking our cyber-systems, both public and private. This colloquy makes clear that this is a very significant first step, and that we need to do something more comprehensive and look forward to doing it on a bipartisan basis in the first work period in 2012.

Mr. President, I would like to thank my friend Senator McCain for introducing an amendment codifying an existing memorandum of agreement between the Department of Homeland Security and the Department of Defense that formalizes their cooperation on cybersecurity work. Our Nation needs to confront the growing threats we face in cyberspace; as Secretary of Defense Leon Panetta testified in June, the ``next Pearl Harbor we confront could very well be a cyber- attack.''

I agree wholeheartedly. The approach embodied by the memorandum of agreement--and this amendment--exemplifies the potential for DoD and DHS to leverage each other's expertise, to make efficient use of existing government resources, and to avoid unnecessary growth of government. That is the approach we must follow as we continue down the path toward comprehensive cybersecurity legislation.

Would the Senator yield for a question?

Let me thank my friend, Senator Ayotte, for playing such a leading role in our debates on this critical issue of how our country handles detainees and gathers intelligence in our war on terrorism. I share her concerns about the potential damage to our intelligence collection efforts inflicted by adherence to the existing restrictions on interrogations. That is why I am pleased to be, with others, a cosponsor of the amendment introduced, amendment No. 1068.

I will say that I am also disturbed about the amount of misinformation that seems to be circulating about this amendment and similar efforts in the past that I have supported.

I ask the Senator from New Hampshire, does amendment No. 1068 authorize torture?

I thank my friend for that clarification. It is very important. It is very critical--particularly for those who misunderstood this amendment--to understand the host of protections that the amendment puts in, both compelling compliance with the international convention against torture, as well as explicit prohibition in American law against interrogation that amounts to torture.

I want to ask my friend another question. Right now, all Federal Government interrogators, whether in the military or in the civilian intelligence community, are limited to using the Army Field Manual. So why does the Senator think it is so critical to give interrogators the ability--limited ability--to go beyond the Army Field Manual?

I thank the Senator for that answer. I completely agree with her. It is important to step back and perhaps state the obvious. Why do we capture enemy combatants? Why do we take prisoners of war? Two reasons, really. The obvious one is to get them off the battlefield against us so they can no longer attempt to kill Americans in uniform and, in the case of the war we are in with Islamist terrorists, to kill civilians. That is first--get them off the battlefield.

The second purpose--and this has been the traditional purpose of taking prisoners of war as long as there has been warfare in human history, and all the more so now--is to gather intelligence from them that will assist us in defeating the enemy and protecting our goals and protecting the lives of our men and women in uniform. That traditional purpose for taking prisoners of war is all the more critical in the unconventional war we are in against a brutal enemy that doesn't strike from battleships or tactical air fighters or military tanks or even in uniform; they strike us from the shadows, and they strike civilians as well.

It is very important to approach this amendment understanding that we are trying to increase, in a reasonable way, the capacity of those who work for us to protect our security and freedom to interrogate detainees that we have captured in the war against terrorism. One of the purposes is to gather intelligence, which will help us protect the lives of Americans and of our allies.

The preface to the Army Field Manual says it applies to the active Army, the Army National Guard, and the U.S. Army Reserve, unless otherwise stated. So as to the field manual, recognizing that these words create limited applicability of the manual outside the Army, the Army Training and Doctrine Command authors had the wisdom to warn that this manual was ``Army doctrine,'' and it would have to be adapted, altered to apply to other ``military departments'' or other military service. If the interrogation techniques in this manual are not ideally suited for military services other than the U.S. Army, why should civilian interrogation professionals in the intelligence community, and particularly those who are in support of a high-value detainee interrogation, those who get the most powerful and influential and dangerous prisoners of war, be forced to comply with a document written for a defined military unit, which is the U.S. Army? I ask my friend from New Hampshire that question.

Again, I thank my friend from New Hampshire, but I want to go back to something I said earlier. We have described the purpose of this amendment--what I call the due process we have put into it, the mandate that it comply with existing international norms and treaties, and, obviously, to comply with our law. I want to say to my colleague that it is certainly not my intention--and I ask my colleague is it her intention--that any of the measures we are authorizing--the interrogation tactics for the worst of the terrorist detainees--should or could equal what is conventionally known as torture? In other words, we are not attempting to legalize torture with this amendment.

Mr. President, I would say to the leader, I am in this with the Senator from New Hampshire, so we will complete our colloquy within 10 minutes.

Again, Mr. President, I thank the Senator from New Hampshire. Just in listening to her, it seems so unacceptable that we are basically telegraphing to our enemy exactly the range of tactics that we will use against them as part of the interrogation.

We have set some quite appropriate constraints in this amendment consistent with our values and our laws and international law so that we are not going to get anywhere near torture. But when a member of al- Qaida or a similarly associated terrorist group is captured, I want that person to be terrified about what is going to happen to them while in American custody. I want them not to know what is going to happen. I want the terror they inflict on others to be felt by them as a result of the uncertainty of not knowing they can look on the Internet and find out exactly what our interrogators are going to be limited to.

Again, we will not tolerate torture. We will not tolerate what happened at Abu Ghraib. I think the limited interrogation in the Army Field Manual was an understandable but excessive reaction to the extreme and unacceptable behavior by Americans at Abu Ghraib. I hope this amendment will facilitate a return to the kind of sensible middle ground on which we will not be shackling our interrogators as they try to get intelligence, within the law, to protect our freedom and the safety of those who are fighting for us.

So I want to ask my friend from New Hampshire whether she thinks we have now a kind of one-size-fits-all approach to interrogation that is posted online. In other words, our laws should make it easier, within the law, not harder, to gather intelligence to keep Americans safe. Yet it seems the current policy runs counter to that basic principle. Does my friend from New Hampshire agree?

Mr. President, I thank my friend from South Carolina for participating in our colloquy, and, of course, I totally agree with him, first of all, on the principle. As he has said very well, and he knows the law very well or better than anyone around here, the Supreme Court has made clear an American citizen, who by his or her acts has declared themselves to be an enemy of the United States, can be treated as an enemy combatant. If we change that now, it is not only wrong on principle, but it is absolutely the wrong time to do this.

Let me speak now for a moment--and I am privileged to be the chair of the Senate Homeland Security Committee.

Mr. President, I ask unanimous consent for an additional 4 minutes.

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

Mr. President, I say to my friend from South Carolina, I not only believe it, but it is shown by the facts.

I wish I had the numbers exactly in front of me. But if we chart attempts at terrorist attacks on the United States--and here I am limiting it to people who are affiliated with the global Islamist extremist movement--there were a few after 9/11, but in the last 2 or 3 years, the numbers have gone up dramatically.

I hasten to say these represent a very small percentage of the Muslim-American community. But of course it doesn't take too many people to cause great havoc. We have been effective at law enforcement and, frankly, we have been lucky that all but two of these attempts have been stopped. But I think we would find law enforcement officials, Homeland Security officials saying the toughest and most dangerous threat right now to the homeland security of the American people comes from homegrown terrorists who have been self-radicalized or radicalized by somebody else.

Well, there is no question our enemies have declared it part of the battlefield. The very official commencement of the war against Islamist terrorism, 9/11, was an attack on America's homeland, on civilians.

Absolutely true. Al-Qaida and like Islamist terrorist groups.

It is a combination, truthfully.

Right.

I would say what has happened here since 9/11, and what we needed to have happen, is that the old stovepipes have dissolved and we have military, civilian, CIA, FBI, each with a focus, working together.

For instance, the Army doctor who killed 13 people at Fort Hood, our committee did an investigation in that case. He was actually communicating with the radical cleric Awlaki in Yemen over the Internet. That was picked up by international intelligence operatives. Part of the story is it wasn't transferred effectively to the Army so they could grab him before he committed the mass murder at Fort Hood.

But I have to say for the record, the primary responsibility for counterterrorism now in the United States is with the FBI that has developed an extraordinary capability since 9/11. But it works very closely with the CIA, gathering international intelligence, NSA, homeland security, and the military.

Right.

That certainly should be the case, and we have had this circumstance in reality. They are all part of the same enemy. In the case the Senator posits, they have all been part of the same plot to attack the American people.

That is the law. As the Senator has said and Chairman Levin has said several times in the debate, there may be some in the Chamber who don't like it, but that is what the U.S. Supreme Court has said very clearly.

No.

Yes, it does. The Senator is making a very important point. It goes back to the colloquy the Senator from New Hampshire and I had, which is, when we capture an enemy combatant, we do so for two reasons: One is to get that enemy off the battlefield, the second is to gather intelligence. Sometimes the second purpose is more important than the first because it can lead us to other plots against the American people.

I do. There has been a lot of talk about the Constitution. The Constitution makes very clear that the primary responsibility we have in the Federal Government is to provide for the common defense, to protect the security of the American people.

I thank my friend. I absolutely agree. I talked to professionals in this business of interrogation, and they say some of the most effective interrogation takes time. I have had people describe to me detainees who were totally uncooperative, and they were asked over and over for days and weeks and months, and then finally broke and began to give information that was critically important for the protection of our country. So I do agree.

I want to stress two things the Senator from South Carolina has said because it is very relevant to the attempt to give special status to Americans deemed to be enemy combatants in the contravention of existing U.S. Supreme Court rulings that say if you are an American and you are found to have joined the enemy, then you can be treated as an enemy combatant, which common sense tells you is what you are.

Here is what I want to say, and this is important to what we are here for. There are two kinds of due process that are put into the bill, the underlying language and the compromise that has been adopted on the treatment of detainees. One, for the first time there is a judicial process to determine the status of the detainee, whether evidence shows that the detainee should, in fact, be treated as an enemy combatant. The second is that while the enemy combatant is subject to indefinite incarceration, that indefinite incarceration is subject to annual review now. So we can determine, according to a stated series of standards, whether that person----

That is absolutely right. The Senator stated earlier-- and it is an important point--this is the danger we get into as we start to treat people who are terrorists as common criminals, or even uncommon criminals, which is that the criminal law aims at imposing a penalty, doing justice, incarcerating somebody as a result. The law of war is aimed at making sure that enemy combatants, prisoners of war, are taken off the battlefield----

Until the war is over.

I thank my friend from South Carolina for his expertise in this area and also his sense of principle. We have colleagues on the floor who want to speak. I want to say a final word. I know the Senator from South Carolina is particularly worried about pending amendments that would alter the way in which the underlying bill now treats enemy combatants who are citizens of the United States.

The underlying provision in the bill on detainee treatment fills a gap in our law that has been harmful and difficult for our military to deal with because there is no law about how to treat detainees. Senator Graham worked very closely with Senator Levin and Senator McCain to draft this compromise, and it is a good compromise. As he knows, if I had my preference, there would be no waiver in this because I believe anybody who is an enemy combatant is an enemy combatant and as a matter of principle ought to be held in military custody and tried by a military tribunal according to all the protocols of the Geneva Conventions, according to the Military Code of Justice.

Incidentally, if these tribunals are good enough for American men and women in the military who face charges, they ought to be good enough for enemy combatants who face charges.

But here is my point: The Levin-McCain-Graham provision in this bill on detainees is a compromise. It is a reasonable, effective, bipartisan compromise. It is the kind of compromise that doesn't happen here enough, and so I support it because even though I might have wished it would have gone further, so to speak, it is a lot better than the status quo. And I say that at this moment because I urge our colleagues who now want to come in with other amendments, to essentially undo this bipartisan compromise can do great damage. I am saying myself, yes, I wish it had not given the President the power to waive that he has under the bill and take somebody who is an enemy combatant to a normal article III Federal court, but this provision is a real step forward from the status quo, and I think if we can say that, then we ought to support it. So I hope our colleagues will think twice before trying to undo the compromise, and that if they do go forward with it, that our colleagues on the floor will defeat those amendments.