Floor Statements

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I am here today to discuss the nomination of Judge Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court.

Over 200 years ago, the Framers of the United States Constitution had a similar discussion. On the topic of judicial nominations, they emphasized the need for qualified judges--those who possess virtue, honor, requisite integrity, competent knowledge of the laws, fit character, and those who have the ability to conduct the job with utility and dignity.

They also talked about the courts that these judges sit on and warned against them exercising will instead of judgment, the consequence of which would be the substitution of the courts' pleasure to that of the legislative body.

These principles have stood the test of time--have been a constant standard that has guided the Senate's constitutional obligation of advice and consent and--today, over two centuries later, we see these principles embodied in Judge Samuel Alito.

You can tell this by Judge Alito's record.

Judge Alito has served as a judge on the Third Circuit Court of Appeals for 15 years. He was confirmed unanimously by a voice vote and since his appointment, he has participated in more than 1,500 Federal appeals and written more than 350 opinions.

From 1987 to 1990, he was the U.S. attorney for the District of New Jersey--the chief Federal law enforcement officer in the State. As a Federal prosecutor, he oversaw the prosecutions of numerous organized crime figures, white-collar criminals, environmental polluters, drug traffickers, terrorists, and other Federal defendants.

Judge Alito also served as an Assistant to the Solicitor General from 1981-1985, arguing 12 cases before the Supreme Court and writing briefs or petitions in more than 250 cases.

He was a Deputy Assistant Attorney General in the Office of Legal Counsel, which is the highest authority within the executive branch for answering legal questions and advising the federal government on complex statutory and constitutional questions.

He is also a distinguished student and scholar. He earned his bachelor's degree from Princeton University and his law degree from Yale Law School, where he served as editor of the Yale Law Journal.

You can also tell his qualifications by the kind of human being he is--and by the kind that others know him to be.

Judge Edward Becker, Senior Court of Appeals Judge for the Third Circuit, who served with Judge Alito for 15 years, called him a wonderful human being, gentle, kind, considerate, patient, self- effacing, brilliant, highly analytical and meticulous, a soul of honor, with no chinks in the armor of his integrity.

Judge Leonard Garth, who has known Judge Alito since he clerked for him in 1976 and served with him on the Third Circuit for the 15 years of Judge Alito's tenure there, called him thoughtful, modest, and self- effacing, and that it is rare to find humility such as his in someone of such extraordinary ability.

And Edna Axelrod, a former colleague and lifelong Democrat, called him a man of unquestionable ability and integrity, one who approaches each case in an openminded way, seeking to apply the law fairly.

You can also tell his qualifications from his judicial philosophy-- and the way he judges.

Judge Becker testified that Judge Alito scrupulously adheres to precedent.

A former colleague and friend of 20 years likewise said that those who know him know that he is not an ideologue, he does not use his position to pursue personal agendas, and he has a profound respect for the law and precedent.

Judge Alito himself testified that he makes decisions knowing a judge can't have any agenda, a judge can't have any preferred outcome in any particular case, and a judge certainly doesn't have a client. The judge's only obligation--and it is a solemn obligation--is to the rule of law. And that means in every single case, the judge has to do what the law requires.

All of these things--his record, character, and judicial integrity-- don't simply make him qualified to be an Associate Justice of the Supreme Court--they make him well qualified, according to the American Bar Association.

After interviewing more than 300 people and analyzing nearly 350 published opinions, a panel at the ABA concluded that Judge Alito's integrity, his professional competence, and his judicial temperament are of the highest standard--and his time on the bench established a record of both proper judicial conduct and even-handed application in seeking to do what is fundamentally fair.

Some of those now opposing the nomination of Judge Alito used to agree.

When Judge Alito was in the process of being confirmed to the Third Circuit, one Senator said that Judge Alito ``obviously had a very distinguished record'' and commended him for his ``long service in the public interest.''

Another, referring generally to the nominations process, said ``we need to get away from rhetoric and litmus tests, and focus on rebuilding a constructive relationship between Congress and the courts . . . we do not need nominees put on hold for years . . . while we screen them for their Republican sympathies and associations.''

And the Senate did this some years ago. I recall when the nomination of Ruth Bader Ginsburg to the Supreme Court came before the Senate in 1993, I was confronted with a nominee whose past revealed that she had a vastly different political ideology than my own. My constituents from Idaho made clear just how different and how far out of the Idaho mainstream that ideology was.

However, Justice Ginsburg was a judge of great ability, character, intellect, and temperament. Her record was replete with evidence of these qualities. And although at one time she had been a vocal advocate for particular political issues, she had a sharp understanding of the limited character of the judiciary and her role within it as a neutral arbiter, not an advocate.

I voted for Ruth Bader Ginsburg. Not because she had the same ideology as I do, but because there was a lack of convincing evidence that she believed the Supreme Court was a place for judicial activism rather than restraint.

Judge Alito's record reflects the same belief, perhaps even more so than Justice Ginsburg's. But now we have the same senators who supported him the first time around suddenly calling his record ``ominous'' and uniting their opposition on the basis of his alleged ``extreme views of executive power.''

In a recent hearing, Judge Alito acknowledged that ``the President, like everybody else, is bound by statutes that are enacted by Congress'' and that there is ``no question about that whatsoever.'' He also testified that ``as a judge, he would have no authority and certainly would not try to implement any policy ideas about federalism.'' There is nothing in Judge Alito's record to suggest otherwise.

What his record does show is a man of character, competence, and integrity who can apply the laws, regardless of his own views.

It is hard to argue against that.

Let us vote to confirm Judge Samuel Alito as an Associate Justice of the Supreme Court.

Mr. President, I would like to announce for the information of the Senate and the public that a hearing has been scheduled before the Subcommittee on Public Lands and Forests.

The hearing will be held on Wednesday, February 15, 2006, at 2:30 p.m. in Room SD-366 of the Dirksen Senate Office Building.

The purpose of the hearing is to review the progress made on the development of interim and long-term plans for use of fire retardant aircraft in Federal wildfire suppression operations.

Because of the limited time available for the hearing, witnesses may testify by invitation only. However, those wishing to submit written testimony for the hearing record should send two copies of their testimony, to the Committee on Energy and Natural Resources, United States Senate, Washington, DC 20510-6150.

For further information, please contact Frank Gladics or Kristina Rolph of the Committee staff.

Mr. President, today, as you may know, Jim Connaughton, chairman of the White House Council on Environmental Quality, called for a comprehensive and collaborative approach to salmon recovery in the Pacific Northwest. While I may not agree completely with Chairman Connaughton's statement, we must stop ignoring what is going on. It is about time that someone speaks out about the reality of the situation in the Northwest in regards to salmon recovery. He proposed to end outdated hatchery programs and to stop harvest levels and practices that impede recovery of salmon listed under the Endangered Species Act, ESA. He also outlined a comprehensive collaborative process to promote a shared goal and responsibility of salmon recovery. As early as next week, the National Oceanic and Atmospheric Administration's fisheries service, NOAA Fisheries, will launch a collaborative review of how harvest and hatcheries are affecting the recovery of ESA-listed salmon and steelhead.

There has been no clear direction in the past, and CEQ is taking the first step to provide a meaningful direction. We have sat back and idly watched while the region moved from injunction to injunction and lawsuit to lawsuit. In fact, over the past 2 years, two injunctions have been ordered and more lawsuits are being filed. This situation just fosters mistrust and the inability to meet common goals and objectives.

Our past practices have focused on keeping the fish in the river and in abundant numbers so that we can have our cake and eat it, too. In no other place in the world do we treat an ESA-listed species this way. We don't raise bald eagles only to use their feathers for our clothes, so why do we spend hundreds of millions of dollars--each year--to recover the species, and then allow a majority of them to be killed through harvesting? The people who pay for these absurd practices are the Northwest ratepayers.

Here are some facts that the region should know. The total cost of fish mitigation in the Northwest from 1978 to 2005 has been approximately $7 billion. Fish costs now make up to 30 percent of the Bonneville Power Administration's power rates, 30 cents of every dollar paid for BPA-managed power. Snake River Fall Chinook are the most impacted ESA-listed species in the Columbia River system. These fish drive BPA's fish and wildlife program. Approximately 40 percent to 60 percent of this species is harvested.

Last summer, Judge Redden ordered a change in river operations that resulted in an approximately $75 million dollar hit to the region's ratepayers. This means that depending on how many fish survive, summer spill costs between $225,000 and $3 million per fish, and consequently, ratepayers are left with the bill. Even at $225,000 per fish, that is a lot of money. Judge Redden, once again, second-guessed the region's fish managers and made the decision to increase spill this spring and summer. This will result in another cost to the ratepayers of approximately $60 million dollars.

Management of the river by the courts is not management at all. I would like to help the management agencies--the appropriate managers of the river system--to succeed in their efforts to manage the river, in partnership with local, State, and tribal governments.

Why not trust the experts who have the scientific knowledge to make those decisions and help empower the region to work together instead of giving up and having the court systems make management decisions? How are we to succeed in the future if we keep allowing others to make our decisions for us?

When will this silliness stop? When will the region take ownership and responsibility for the river? And when will we work together as a region and get serious about salmon recovery? CEQ made the first step today.

I will work with other Members of Congress to finally face these challenges and to help provide direction and be more accountable to the public and to recovery of the species. If we are serious about recovery, we need to start acting serious and not avoid the tough questions.

I would like to challenge my colleagues to come together in a bipartisan way to help the region get back on track.

Mr. President, I rise to commend Chairman Gregg on his leadership regarding the Deficit Reduction Act. The Budget Committee has had to make hard decisions and has labored to do so fairly. I have seen first-hand and appreciate the Chairman's dedication to the integrity of this process.

On behalf of myself and Senator Burns, I would like to state for the record our understanding of the effect of the language in the bill regarding repeal of the Continued Dumping Subsidy Offset Act CDSOA.

We understand that the bill requires distribution of all antidumping and countervailing duties finally determined, ultimately assessed on any and all imports of merchandise that are entered, or withdrawn from warehouse, for consumption by the deadline of October 1, 2007.

Further, we understand that liquidation or assessment of duties need not occur prior to the deadline of October 1, 2007, as a condition of distribution and that the duties ultimately assessed will be distributed regardless of the date on which they are finally determined and collected.

In other words, while appeals to U.S. courts or NAFTA panels or other proceedings at administrative agencies may prevent final assessment and collection of the duties owed until after the deadline of October 1, 2007, so long as the imports are entered, or withdrawn from warehouse, for consumption by that date, the duties ultimately assessed will be distributed annually under the processes currently specified in law.

Finally, we understand that subsection (b) specifies that the CDSOA shall operate ``as if'' there had been no repeal; meaning that Customs will maintain all existing aspects of the program codified at 19 U.S.C. Sec. 1675c, and contained in accompanying regulations, including all accounting procedures, all administrative and other mechanisms, and all infrastructure in place to collect, account for, track, and distribute duties on merchandise entered, or withdrawn from warehouse, for consumption by the deadline of October 1, 2007. And at all times we would expect that collections of duties are to be pursued aggressively by U.S. Customs and Border Protection.

I thank the leader for that clarification and I appreciate all of his hard work in reaching this compromise language.

Mr. President, I think in the closing moments prior to the cloture vote and following that the Senator was very open, and I appreciate his willingness to come together with the House to try to resolve it. What is most important--and I want to say it and I want to say it again--for those of us who offered the SAFE Act and stood together, our intent was not to kill the PATRIOT Act and it never has been. I would hope that this process does not end up in the PATRIOT Act expiring without modifications of it and the reauthorization of it. The chairman certainly has spent a good deal of time in that effort, as have I and many others. His willingness now to sit down and to attempt to work this out, all of that is doable and can be accomplished, especially if the time we are now involved in, in dealing with DOD conference and DOD reauthorization and the budget reconciliation conference is going to be protracted to the extent of the rules of the Senate, then we do have that time more than ever.

I would hope it is possible to come together. I do know the Justice Department has stated that all ongoing investigations would not be compromised during the period of time in which the PATRIOT Act might expire. That is not the point. The point is we ought to do it. We ought to do it appropriately, and I would hope that in the end the chairman would take us as close to the Senate version as we could possibly get because I think the work that came out of the Senate Judiciary Committee is what this Senate ought to vote on once again and what ought to become law.

I thank the chairman for yielding and I yield the floor.

Mr. President, may I ask what the order is at this moment?

Mr. President, I rise today to express my concern that language was not included yet again by this Congress in the supplemental bill--which is now embodied in Defense appropriations--to clarify that categorical exclusions as used by the U.S. Forest Service under the Appeals Reform Act of 1993 are exempt from comment and appeals.

That sounds technical, doesn't it? It isn't so technical if you believe in the Healthy Forest Act and the ability of the Forest Service, as so prescribed by the Congress, to operate under that specific act. A legislative fix is desperately needed as projects continue to pile up and create additional backlog for our U.S. Forest Service.

At the heart of this issue is when, where, and how the public is included in the execution of categorical exclusions extended in the projects. By definition, categorically excluded projects are categories of action which do not individually or cumulatively have a significant effect on the human environment and therefore normally do not require further analysis in either an environmental assessment or an environmental impact statement. The Forest Service requires scoping on each and every project on Forest Service land in which they want to utilize the categorical exclusion.

Let me quote from the Forest Service Environmental Procedures Handbook:

Scoping is required on all proposed actions, including

those that would appear to be categorically excluded.

In other words, those actions the Forest Service may take on Forest Service ground in a given watershed that we have said are excluded under the Healthy Forest Act, as it relates to the National Environmental Policy Act--meaning an environmental impact statement--we still say the Forest Service scoping is required on all proposed actions, including those that would appear not to need a categorical exclusion.

If the responsible officials determine, based on scoping,

that it is uncertain whether the proposed action may have a

significant effect on the environment, prepare an EA [and

that is chapter 40]. If the responsible official determines,

based on scoping, that the proposed actions may have a

significant environmental effect, prepare an EIS.

That is an environmental impact statement.

In other words, we have tried to be very careful within the law to make sure that happens. I am going to submit for the Record a much more detailed understanding of what exactly we mean because it is critically important at this moment that we allow the Forest Service to get back on track.

Having said that, I have talked legalese as it relates to a specific act of Congress and a law that is in place now for our Forest Service to act. What does it mean in real life, what does it mean on the ground? I think all of us witnessed the fires of late fall and early winter in the greater Los Angeles watershed that were burning the scrub oak in the foothill country in back of Los Angeles. In most instances, those

fires in the past have not only consumed the scrub oak, they have consumed, in some instances, hundreds of beautiful and very expensive homes that are within those areas. This year, it is interesting that, of the thousands of acres that were burned, only one home was burned.

In talking to the firefighters, why were they able to control the fires in a better way and why were fewer homes lost, they said very clearly, because it was the thinning and the cleaning of the brush and undergrowth that was allowed by the categorical exclusions of the Healthy Forest Act. In other words, the fuel buildup that naturally occurs on public lands, and in this instance in urban watersheds in which the Healthy Forest Act is more specific, categorical exclusions were granted. In other words, the scoping process of the Forest Service to determine the impact that the action of cleaning and thinning would have on public lands was determined not to be of major environmental consequence, and therefore the Forest Service was allowed to proceed.

Along comes a judge just this summer and says: no no, you have to do an EA, you have to do an EIS, on all, including those provisions the Congress spoke specifically to as it related to categorical exclusions. In other words, within the category an exclusion is allowed for certain actions on forested public lands for the purpose of sustaining the quality of the watershed and the health of the forest, and so on and so forth.

What is clearly a loss now is that the Forest Service, in planning for next year's actions on the ground--the thinning and the cleaning of our forests to ensure forest health, to bring down the overall threat of fire--has been dramatically diminished by this judge's action.

We had hoped in the supplemental to gain the language necessary to reinstate the categorical exclusions, as was and as has been clearly debated as the intent of Congress. That has been denied. So when Congress reconvenes in January and early February, we are going to have to work overtime to make sure that we get this law into place.

What does it mean? It means protecting watersheds. It means protecting homes that have been built up against the forested lands, doing the right kinds of actions which result in the cleaning up of our forests and the ensuring of the vitality of the environment within.

What the judge's action means in essence is that you have to spend tens of millions of dollars perfecting an EA--or in this instance a full environmental impact statement--to be able to proceed. We believe that under certain circumstances where the health of the forest is critical, and in this instance the Los Angeles Basin, where we saw the action of being able to control fires because the overall fuel load on our public lands was dramatically reduced by the thinning and the cleaning in that region of the country--without that we simply will not be able to move forward as expeditiously as the Healthy Forest Act intended that we move. That is what is at issue here. I had hoped we would gain that. We have not gained that in the DOD appropriations and supplemental language that was applied.

Federal lands recovery work that is going on in Mississippi and Louisiana and Texas, work that was caused by the hurricanes Katrina and Rita, is now included in this problem. So are, overall, 800 planned, categorically excluded low-impact projects and hazardous fuel reduction projects affecting over 234 communities and 200 currently planned, prescribed burning projects that, if delayed, would more than likely put them beyond optimum and safe burning conditions, delayed because of the action of the judge and therefore pushed off for another year.

That is the critical nature of this issue and why I have come to the Chamber. As one of the chief cosponsors of the 1993 Appeals Reform Act, I know we had no expectation or belief that categorical exclusions placed in 1993 would be subject to the Appeals Reform Act. It is important that we move forward to clarify this language.

I understand some on this floor today think otherwise.

Perhaps it would be wise to review the amount of public participation involved in the development of the Categorical Exclusions regulations that both the Clinton administration and then the Bush administration have developed since the Appeals Reform Act was first passed in 1993.

In the mid-1990s, the Clinton administration proposed significant changes to the Categorical Exclusions. They did this through an Administrative Procedures Act--APA--rulemaking process which included both a proposed and final rulemaking, including extensive review of numerous public comments.

Those categorical exclusions withstood a number of legal challenges and remained in place until 2003.

In 2000, the Bush administration undertook extensive analysis of thousands of projects to develop a series of new categorical exclusion proposals.

After review of literally thousands of projects the Bush administration proposed a number of changes to the Clinton administration's categorical exclusions. They did this through an APA rulemaking that again included extensive public comments.

I think it is important that my fellow Senators understand that the original Heartwood II settlement agreement, which attempted to nullify categorical exclusions, was rejected by the District Court in which it was brought and the case was dismissed.

Now, the Eastern District Court of California has chosen to resurrect that settlement agreement and impose it nationally.

I know that some people in the Chamber today may still be concerned that the land managers may miss something and not realize there could be a potential problem.

Between the scoping that is required, the extraordinary assessment that is required, and the public notice requirements that will be required if this language is maintained, it is inconceivable to me that projects that might be environmentally detrimental could be carried out through the categorical exclusion process.

This body should reject the efforts of the ``gum up the works'' crowd who want more process to slow down more projects.

The current categorical exclusions are based on more data and analysis than anytime in history.

We have more protections to ensure they are not misused than anytime in history, and we will have more public notice on categorical exclusions than anytime in history if we adopt the language in this bill.

I hope this Congress sees fit to address this situation before it is too late. We thought we could. We will have to return early next year to get that kind of work done.

What is at stake now is the health of the forest, the health of the watershed, and literally hundreds of thousands of homes spread across the landscape that are about or near public forest, public lands, that could find themselves in a condition that would jeopardize their presence by fire, which could ensure where fuel-laden lands exist.

I thought it was important that I submit that for the Record because it is critically important that we move forward on that issue.

I yield the floor.

Mr. President, I thank the ranking member of the Judiciary Committee for yielding. Let me also thank the chairman of the Judiciary Committee. I thought he gave a thoughtful overview of the progression of time and thought that has gone into the conference report that is before the Senate at this moment.

Of all that we do this year that is lasting beyond tomorrow, clearly the PATRIOT Act is one of those pieces of legislation. I say that because it deals with fundamental constitutional rights in this country. At the same time, it deals with our right to protect ourselves against foreign interests that might intrude upon our shores.

The chairman has said so well, it is a very precarious balancing act between the right of the free citizen and a civil society that is protected by law. That is what we as Senators are about at this moment. That is what I have always been about, along with my colleagues. That is why some of us joined well over a year and a half ago to say that when it came time to reauthorize the PATRIOT Act, here were some provisions that stepped us back toward the right of free citizens to be protected by their Government, in fact, against their Government's law enforcement capability; while at the same time not hand-tying the ability of law enforcement and intelligence to come together to review, to investigate, and to determine whether someone's acts were terrorist in nature and might put free citizens of our country in jeopardy.

I cannot, nor will I, vote for cloture today because I am here to defend what the Senate has already done so well in such a bipartisan and in such a thoughtful way. We will not adjourn this session of this Congress without a PATRIOT Act in place, whether it is the 3-month extension we offered or whether it is the chairman, as he said, and the ranking member sitting down with the House to once again shape, in limited ways, those areas we think are critically necessary to make sure the balance the chairman so clearly spoke to is adhered to within a reauthorized PATRIOT Act.

So I would urge my colleagues' calmness and sensitivity to the fundamental civil liberties of our country, as we worked so hard to balance them against our country's and our Constitution's and our Government's primary responsibility; and that is to keep us safe and secure in a free environment.

I thank the ranking member for yielding, and I yield the floor.

Mr. President, I rise in support of this bill to expand the Radiation Exposure Compensation Act, RECA, to include the States of Idaho and Montana. I am an original cosponsor of the legislation being introduced by Senator Crapo.

The National Academy of Sciences, NAS, recognizes that citizens affected by fallout from atomic bomb testing in Nevada were not only the citizens of that State or Utah, but also citizens to the north, and east, and throughout much of the world. This bill, consistent studies showing that parts of Idaho and Montana were among the most affected, expands RECA geographically to include these two States.

My colleagues and I are in the business of making Idahoans eligible for RECA compensation as expeditiously as possible. Studies that take years will simply not do for citizens who would otherwise be eligible if they lived on the other side of a State line.

The NAS recommended that RECA should be overhauled, and I will make sure this happens. In the meantime, those Idahoans and Montanans who qualify for compensation today should be made eligible immediately.

I thank my colleague from Vermont for yielding. I am glad

Mr. President, let me, for a moment, touch on something I think is important. This issue has spread beyond these walls and beyond this building.

The Idaho Legislature, my legislature in Idaho, by a resolution, a house joint memorial and a senate joint memorial to the Congress, asked that we support the SAFE Act. The SAFE Act was the passage of amendments that the Senate Judiciary Committee incorporated within our version of the reauthorization of the PATRIOT Act that passed this body unanimously.

From the beginning, those of us who have concerns about PATRIOT have had an uphill battle. Practically before the ink was dry on our bill-- and certainly well before any committee had reviewed it--we faced a veto recommendation. Before they even read our reform proposals, some of PATRIOT's defenders charged us with wanting to repeal the law and do away with all the tools it provided law enforcement to protect our country against terrorism.

Those charges were not true when we began, and they're not true today. We are not trying to undo PATRIOT. If some Senators still believe that, well, the rest of the country does not.

Most of PATRIOT isn't even at issue today--just a small part of the law is up for renewal. Of that small part, we are only focusing on a few controversial and very important provisions. And even for those few provisions in the small part of the law up for renewal, we are asking for modest checks and balances, not repeal. And we have even been flexible about what shape those reforms should take. We introduced the SAFE Act, offering one way to ``fix'' what we saw as problems, but in the end, we accepted a Senate Judiciary Committee bill that took a couple of different approaches.

Here is an interesting reaction: When we are dealing with constitutional freedoms, just a little can make all the difference. Some are saying that we are asking for so little, we should just drop it altogether. Our point is that it would take very little to close the gap and provide the assurances we are seeking. Our ask is very do-able. The conference on this bill was squeezed into the very end of the year; changes were being made in the conference agreement even up to the day of its filing. We believe a limited timeframe would allow further discussion and an opportunity to get beyond whatever political issues are in the way. Some of us have even introduced legislation that would extend the expiring provisions of PATRIOT for 3 months, for this purpose.

Furthermore, it's worth emphasizing that our concerns are not about insignificant or technical issues--they relate to what happens when innocent Americans come within the sphere of surveillance in antiterrorism investigations.

Regardless of what Americans think about the PATRIOT Act's effectiveness, they also care about preserving their freedom within the fight against terrorism.

Let me read the resolution passed by the Idaho State Legislature earlier this year on the subject:

A Joint Memorial to the Senate and House of Representatives of the

United States in Congress Assembled, and to the Congressional

Delegation Representing the State of Idaho in the Congress of the

United States

We, your Memorialists, the House of Representatives and the

Senate of the State of Idaho assembled in the First Regular

Session of the Fifty-eighth Idaho Legislature, do hereby

respectfully represent that:

Whereas, citizens of the state of Idaho strongly believe

that basic civil liberties must be preserved and protected,

even as we seek to guard against terrorist and other threats

to the national security; and

Whereas, there are some principles of our democracy which

are so fundamental to the rights of citizenship that they

must be preserved to guard the very liberties we seek to

protect; and

Whereas, legislation known as the SAFE Act has been

introduced in the Congress of the United States to adopt

amendments to the Patriot Act which would address some of the

most problematic provisions of the Act; and

Whereas, the SAFE Act amends the Patriot Act to modify the

provision regarding the roving wiretaps to require that the

identity of the target be given and that the suspect be

present during the time when surveillance is conducted; and

Whereas, the SAFE Act revises provisions governing search

warrants to limit the circumstances when the delay of notice

may be exercised and to require reports to the Congress when

delays of notice are used; and

Whereas, the SAFE Act requires specific and articulable

facts be given before business records are subject to

investigation by the Federal Bureau of Investigation; and

Whereas, the SAFE Act provides that libraries shall not be

treated as communication providers subject to providing

information and transaction record of the library patrons;

and

Whereas, it is appropriate that the Legislature of the

State of Idaho, on behalf of the citizens of Idaho, express

support of the efforts of Senator Larry Craig to adopt the

SAFE Act, and encourage the full support of the Idaho

congressional delegation.

Now, therefore, be it Resolved by the members of the first

Regular Session of the Fifty-eighth Idaho Legislature, the

House of Representatives and the Senate concurring therein.

That the Idaho Legislature endorses the efforts to amend the

Patriot Act to assure that it works well to protect our

security but that it does not unnecessarily compromise

essential liberties of the citizens of the United States. We

urge the congressional delegation representing the State of

Idaho in the Congress of the United States to support

legislation introduced by Senator Larry Craig, known as the

SAFE Act.

This is just one of hundreds of such statements issued by states, cities, and communities across the Nation on this subject.

I have actually heard colleagues saying that because there have been no publicly reported abuses of PATRIOT Act powers, there is no justification for changing the law. Since when do we have to wait for the Constitution to be breached to take action? Since when do the American people have to justify demanding checks and balances that will make sure there can be no such abuses? Since when did it become the American people's burden of proof to support protecting their civil liberties?

I thought the government worked for the people, and not the other way around

We are not the ones who should have to be justifying a call for checks and balances. It's up to the government to prove those checks and balances are not workable and not in the best interests of the Nation.

Now, we have heard a lot about the civil liberties protections that have been included in this conference report. I stand second to none in giving credit to our Judiciary Committee chairman, Arlen Specter, for achieving these reforms. I well know the opposition he was up against, and I am very pleased he was able to persuade conferees--as he persuaded some in this body--that we can have both: protection of the privacy and civil liberties of innocent citizens, and aggressive fighting against terrorism.

It is worth noting that even those of our colleagues who opposed our original SAFE Act proposals ended up supporting the Senate bill that contained civil liberties reforms. Today these same colleagues are praising the conference report's provisions along those lines--and my message to them is: why not go just a little further toward the Senate's version in some of these areas? You voted for them once before--why not again?

That's how much confidence I have in Chairman Specter--that with this additional expression of support from the Senate, he will be able to make a few last--but important--improvements.

The other body voted yesterday on the PATRIOT Act conference report, and a motion to reject that report and instead accept the entire Senate-passed version was narrowly defeated, 202-224. This is a remarkable vote. The U.S. House is a body of 435 Members. 215 is the majority, they were 13 short of passing the Senate bill, the very reform I am asking for today. But those of us seeking more time for negotiations aren't asking that the entire conference report be defeated; we aren't asking for the House to swallow the entire Senate bill. Instead, we have identified a few areas where we believe improvements could and should be made, and I think the House vote shows these changes would be welcomed by a substantial number in that body.

To those of my colleagues who are telling us to ``quit while we're ahead,'' I say: where would we be if they had stopped at the First Amendment of the bill of Rights? Should they have quit while they were ahead, and forgotten about those other nine amendments?

These are important issues. let's allow a little more time for the process to work, and respond to the concerns that our citizens have expressed.

1. The changes we are seeking:

The conference report that we are voting on would allow the government to obtain library, medical and gun records and other sensitive personal information under Section 215 of the PATRIOT Act on a mere showing that those records are relevant to an authorized intelligence investigation. As business groups like the U.S. Chamber of Commerce have argued, this would allow government fishing expeditions targeting innocent Americans. We believe the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy, as the three-part standard in the Senate bill would mandate.

Some conferees argue that the language in the conference report would permit the government to use the ``relevance'' standard only in limited, extraordinary circumstances, and that the Senate bill's three- part standard would continue to apply in most circumstances. To the contrary, the conference report never requires the government to demonstrate that the individual whose records are sought is connected to a terrorist or spy; rather, it permits the ``relevance'' standard to be used in every case.

It has also been asserted that the government should not be required to

abide by the three-part Senate standard because the Department of Justice demonstrated in a classified setting that ``circumstances may exist in which an individual may not be known to a foreign power or be a recognized terrorist but may nevertheless be crucial to an authorized terrorism investigation.'' We are convinced, however, that the three- part standard provides the necessary flexibility in such circumstances. Indeed, the government need only show that the records they seek are relevant to the activities of a suspected terrorist or spy, a very low burden to meet, but one that will protect innocent Americans from unnecessary surveillance and ensure that government scrutiny is based on individualized suspicion, a fundamental principle of our legal system.

Unlike the Senate bill, the conference report does not permit the recipient of a Section 215 order to challenge its automatic, permanent gag order. Courts have held that similar restrictions violate the First Amendment. While some have asserted that the FISA court's review of a government application for a Section 215 order is equivalent to judicial review of the accompanying gag order, the FISA court is not permitted to make an individualized decision about whether to impose a gag order when it issues a Section 215 order. It is required by statute to include a gag order in every Section 215 order; the gag order is automatic and permanent in every case. The recipient of a Section 215 order is entitled, but does not receive, meaningful judicial review of the gag order.

The conference report does not sunset the National Security Letter, NSL, authority. In light of recent revelations about possible abuses of NSLs, which were reported after the Senate passed its reauthorization bill, the NSL provision should sunset in no more than four years so that Congress will have an opportunity to review the use of this power.

The conference report does not permit meaningful judicial review of an NSL's gag order. It requires the court to accept as conclusive the government's assertion that a gag order should not be lifted, unless the court determines the government is acting in bad faith. As a result, the judicial review provisions do not create a meaningful right to review that comports with due process.

The conference report does not retain the Senate protections for ``sneak and peek'' search warrants, as Chairman Specter's letter suggests. The conference report requires the government to notify the target of a ``sneak and peek'' search within 30 days after the search, rather than within 7 days, as the Senate bill provides and as pre- PATRIOT Act judicial decisions required. That 7-day period was the key safeguard included in the Senate sneak and peek provision. The conference report should include a presumption that notice will be provided within a significantly shorter period in order to better protect Fourth Amendment rights. The availability of additional 90-day extensions means that a shorter initial time frame will ensure timely judicial oversight of this highly intrusive technique but not create undue hardship on the government.

Unlike the Senate bill, the conference report requires a person who receives an NSL to notify the FBI if he consults with an attorney and to identify the attorney to the FBI. This will have a significant chilling effect on the right to counsel. There is no such requirement in any other area of law.

Unlike the Senate bill, the conference report for the first time imposes criminal penalties on an NSL recipient who speaks out in violation of an NSL gag order, even if the NSL recipient believes his rights have been violated.

The conference report for the first time gives the government the power to go to court to enforce an NSL, effectively converting an NSL into an administrative subpoena. An NSL recipient could now potentially be held in contempt of court and subjected to serious criminal penalties. The government has not demonstrated a need for NSLs to be court enforceable and has not given any examples of individuals failing to comply with NSLs.

The conference report would give the government unilateral authority to keep all its evidence secret from a recipient who is challenging an NSL, regardless of whether the evidence is classified. This will make it very difficult for an NSL recipient to obtain meaningful judicial review that comports with due process.

As with Section 215, the conference report fails to require notice to the target of an NSL if the government seeks to use the records obtained from the NSL in a subsequent proceeding, and fails to give the target an opportunity to challenge the use of those records.

The conference report does not eliminate the catch-all provision that allows sneak and peek searches any time that notice to a subject would ``seriously jeopardize'' an investigation. This exception could arguably apply in almost every case.

Many of my colleagues say the PATRIOT Act is just giving law enforcement powers in terrorism investigation what they already have in drug investigation.

Well not here. The conference report does not include meaningful checks on ``John Doe'' roving wiretaps, a sweeping power never authorized in any context by Congress before the PATRIOT Act. A John Doe roving wiretap does not identify the person or the phone to be wiretapped. Unlike the Senate bill, the conference report does not require that a roving wiretap include sufficient information to describe the specific person to be wiretapped with particularity.

The conference report does not require the government to determine whether the target of a roving intelligence wiretap is present before beginning surveillance. An ascertainment requirement, as has long applied to roving criminal wiretaps, is needed to protect innocent Americans from unnecessary surveillance, especially when a public phone or computer is wiretapped. Yes, new technology is challenging but should not allow our privacy rights to be swept away.

The conference report retains the PATRIOT Act's expansion of the pen/ trap authority to electronic communications, including e-mail and Internet. In light of the vast amount of sensitive electronic information that the government can now access with pen/traps, modest safeguards should be added to the pen/trap power to protect innocent Americans, but the conference report does not do so.

The conference report retains the PATRIOT Act's overbroad definition of domestic terrorism, which could include acts of civil disobedience by political organizations. While civil disobedience is and should be illegal, it is not necessarily terrorism. This could have a significant chilling effect on legitimate political activity that is protected by the First Amendment.

While the issues discussed above are the core concerns about the conference report that the original cosponsors of the SAFE Act asked to be modified, they are not the only problems that we see with the conference report. There are a number of other areas where we believe the conference report falls short.

Unlike the Senate bill, the conference report requires a person who receives a Section 215 order to notify the FBI if he consults with an attorney and to identify the attorney to the FBI. This will have a significant chilling effect on the right to counsel. There is no such requirement in any other area of law.

The conference report would give the government unilateral authority to keep all its evidence secret from a recipient who is challenging a 215 order, regardless of whether the evidence is classified. This will make it very difficult for the recipient of a Section 215 order to obtain meaningful judicial review that comports with due process.

Under the conference report, the target of a Section 215 order never receives notice that the government has obtained his sensitive personal information and never has an opportunity to challenge the use of this information in a trial or other proceeding. All other FISA authorities--wiretaps, physical searches, pen registers, and trap and trace devices--require such notice and opportunity to challenge.

The conference report would allow the government to issue NSLs for certain types of sensitive personal information simply by certifying that the information is sought for a terrorism or espionage investigation. This would allow government fishing expeditions

targeting innocent Americans. As business groups have argued, the government should be required to certify that the person whose records are sought has some connection to a suspected terrorist or spy.

Again, what is important is to understand and plead with our colleagues--that how you negotiate is through power and leverage, not to give up and walk away. I am not going to suggest that the chairman did that at all. He and I dialogued many times over the course of the last 2 weeks as to what we might do to gain greater position, to gain the Senate position with the House.

My compliments to him for the successes that are in the conference report because there are some. But my frustration is that what we did in the Senate in this very important instance has not been adhered to. Those safeguards have not been put in place to the extent that we had asked. And I believe it is reasonable and right to say: No, let us live for 3 more months with the current law while we attempt to achieve even greater protection for the private citizens of this country but most importantly recognize that the law enforcement community needs that time to ask permission and to show that they have very real reason to believe that somebody is involved.

I think it has been a very excellent debate which has gone on on the floor of the Senate. But there is a reality check. That reality check is a vote on the conference report, and I ask my colleagues to vote against cloture so that we can reenter this debate one more time with the House to make sure we get it right so that the first amendment and the fourth amendment are not, in some way, in jeopardy.

I yield the floor.

I know my chairman thinks that is a success. First, we have broken and entered a private citizen's home without telling them. Does it take 30 days for law enforcement to determine that what they have found is so valuable that they cannot tell the citizen they have broken into their home? Why not 7 days? And then go to a judge and prove your worth with the evidence you have established by that ``break-in''--because that is what you have done. My home is my sanctuary. We have said, yes, we are going to let you break and enter, sneak and peek, but we are going to make sure it is very limited.

So I don't view 30 days as a compromise. Seven days. You were right to begin with. You are wrong now.

If the Senator will yield, I will be kinder.

All right.

It is broadening of the application, not the establishment.

It was third on my list.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, may I inquire as to the state of the Senate? Are we in morning business?

I thank the Chair. I will speak as in morning business.

Mr. President, the leader, in opening the Senate this morning, said we would come to the floor later today to begin to debate motions to instruct the conferees on the budget resolution conference that is now underway and being negotiated between the House and the Senate.

Of course, that is critical to our going home--the process to finalize the work of the Congress this year. So for the next few moments, I wish to speak about two issues that are in that conference that will be a part of the debate this afternoon on the instruction of conferees.

The first one is what we call the Byrd amendment, also known as the Continued Dumping and Subsidy Offset Act.

To set the record straight, it is important to say that so people understand when I reference the Byrd amendment I am not talking about the Byrd rule as it relates to what can and cannot be inside the budget resolution but is, in fact, what Senator Byrd, I, and joined by others some time ago know as the Continued Dumping and Subsidy Offset Act.

As many Senators are aware, this amendment, the Byrd amendment, has had tremendous support in this body. In fact, in 2003, 70 Senators notified the President of our strong support for this provision. Further, just recently, 25 Republican Senators notified the majority leader of our strong opposition to any repeal of the Byrd amendment in the Deficit Reduction Act. I firmly believe those 25 Senators stand firm in their opposition to any repeal. A provision such as the Continued Dumping and Subsidy Offset Act that has so much support has no place whatsoever in the budget resolution or what we call the Deficit Reduction Act. However, some in this body are calling the Byrd amendment ``corporate welfare.'' If people in this country call a provision that protects U.S. companies and manufacturers from intentional and illegal foreign dumping and in subsidies, so be it. You can call it anything you want, but that is the reality of the existing law. When foreign companies continue to dump and get subsidies even after an order goes into effect, the U.S. industry gets absolutely no benefit from that measure. The only way we can level the playing field in those instances is to prevent those duties to be distributed to the very American companies that are injured by those flagrant and illegal practices.

Some in this body would like to repeal the Byrd amendment because it has been estimated to result in $3.2 billion in cost savings.

I have to tell you this estimate, in my opinion, is pure fabrication.

This year, for example, the Congressional Budget Office estimated that this act's provisions would come to $800 million in fiscal year 2005. In reality, however, the figure was $226 million. CBO's estimate was off by a factor of

three. That tells me that the 5-year estimate for 2006-2010 is grossly overestimated. Therefore, if we include repeal of the Byrd amendment to inflate budget-deficit reduction numbers, we are clearly not getting those cost savings, while at the same time injuring U.S. companies that are committed to preserving and growing manufacturing jobs in this country.

Finally, some have argued we must repeal the act because it is in violation of the WTO.

First, I believe this shows how far the WTO has overstepped their guidelines in placing obligations on our country we have never agreed to.

Second, there is nothing in any WTO agreement that specifies how countries must spend their dumping duty proceeds. If we must do anything with respect to WTO, we ought to tell Ambassador Portman, as the Senate has done many times in the past, to negotiate a specific agreement permitting duty distribution in the Doha Round. This is not the time to repeal this provision while our negotiators are still at the negotiating table.

I strongly urge my colleagues and the leadership to remove the repeal of the Byrd amendment from the Deficit Reduction Act. This is simply not the time nor the place for such an action.

Further, I urge my colleagues to fall in line and support a motion to instruct conferees to remove this repeal. Failure to do so will send a message to our injured U.S. companies and manufacturers that Congress is wearing rose-colored glasses and fails to see or act upon the evils of illegal dumping and foreign subsidies.

Mr. President, in speaking to conferees this afternoon in relation to the deficit reduction or the budget reconciliation process, this is an issue that, frankly, most Senators probably have not heard all that much about.

Everyone agrees that the reconciliation act, or Deficit Reduction Act, is an attempt by Congress to rein in spending and to build the appropriate budget in this climate. This legislation makes tough cuts in important programs in all areas of Government.

While nearly all programs are taking their lumps--if you will, sucking it up a bit--Congress is, ironically, considering increasing spending in a bill whose sole purpose is to decrease spending.

The Senate's version of the Budget Reconciliation Act, or Deficit Reduction Act, includes a provision renewing the Milk Income Loss Contract Program, also known as the MILC Program, which currently expired in September of this year.

The CBO has scored this renewal in costs to the taxpayers of $1 billion over a 2-year period. In other words, half a billion a year. This deserves much more attention than it got in the Senate. The MILC Dairy Price Support Program was included in the 2000 farm bill to create a permanent direct payment program to the dairy producers. During the farm bill debate, USDA warned that the new program would run counter to the old dairy price support program in place since the 1940s.

Analysis by the USDA in August of 2002 concluded that the MILC Program would cause overproduction, thereby lowering farm prices to producers, forcing the government to purchase the excess until prices stabilized. However, Congress ignored the USDA warning and authorized the program to last until September of 2005, enough time to see dairy producers through the tough times back in 2002.

Now, after over $2 billion in taxpayer-funded programs, some in the Congress have easily forgotten about the agreement to sunset a program. When we sunset a program it is the intent of Congress to conclude it.

Let me give some examples of how distorted it has become if the program is in support and in relation to production in our country. Idaho dairy production is now 4th in the Nation and one of the top economic drivers in the economy of my State. During the 2003-2005 period, Idaho received $39 million in MILC payments, enough to be ranked 12th in total payments received in the program, yet they are fourth in production in the Nation.

In comparison, California received $149 million over the same time, is ranked fifth in total payments and, of course, California is the No. 1 milk producer in the Nation.

There seems to be no relationship. I guess some hands are just too sticky to let money pass just because the law is 3 years old and ready to expire.

My point is this: It is important to understand just what this program does and what the $1 billion for one program means in the overall picture. It has become market distorted. It provides little to no parity to all producers. It encourages inefficient overproduction in milk and it sends the exact opposite signal to our trade negotiators trying to sell the rest of the world on the idea that the United States is willing to cut domestic subsidies and amber box payments.

Regarding the WTO negotiations, our United States Trade Representative and USDA Secretary and many others are currently attempting to negotiate in the latest Doha Round getting started in Hong Kong as we speak. It is clearly important we send a message. It is also important when we sunset a program after having found out it is market distorting, we ought to do just that, instead of pump it up again while we are asking all other programs that are federally expended to reduce their overall expenditures, to reduce the budget deficit and to bring this budget under control.

I hope our conferees, as they negotiate the budget deficit reduction act, or the budget resolution, would decide not to fund the MILC Program, adhere to the sunset provision provided and allow a program to die as this program effectively did by the sunset in September of this year.

Mr. President, I ask unanimous consent to have printed for the Record articles in opposition to the MILC Program and also an article from the Wall Street Journal.