Floor Statements

Senator Paul recently sent a letter requesting some information from the Obama administration relating to drone strikes.

It is significant that on March 4, 2013, just a couple days ago, Senator Paul received back from the administration a letter signed by Eric H. Holder, Jr., which reads as follows:

Dear Senator Paul:

On February 20, 2013, you wrote to John Brennan requesting

additional information concerning the Administration's views

about whether ``the President has the power to authorize

lethal force, such as a drone strike, against a U.S. citizen

on U.S. soil, and without trial.''

As Members of this Administration have previously

indicated, the U.S. government has not carried out drone

strikes in the United States and has no intention of doing

so. As a policy matter, moreover, we reject the use of

military force where well-established law enforcement

authorities in this country provide the best means for

incapacitating a terrorist threat. We have a long history of

using the criminal justice system to incapacitate individuals

located in our country who pose a threat to the United States

and its interests abroad. Hundreds of individuals have been

arrested and convicted of terrorism-related offenses in our

Federal courts.

The question you have posed is therefore entirely

hypothetical, unlikely to occur, and one we hope no President

will ever have to confront. It is possible, I suppose, to

imagine an extraordinary circumstance in which it would be

necessary and appropriate under the Constitution and

applicable laws of the United States for the President to

authorize the military to use lethal force within the

territory of the United States. For example, the President

could conceivably have no choice but to authorize the

military to use such force if necessary to protect the

homeland in the circumstances of a catastrophic attack like

the ones suffered on December 7, 1941, and September 11,

2001.

Were such an emergency to arise, I would examine the

particular facts and circumstances before advising the

President on the scope of his authority.

Sincerely, Eric H. Holder, Jr., Attorney General.

It is good to have this letter as a response to Senator Paul's inquiry. I believe the inquiry Senator Paul raised is a legitimate one. It is also essential we have some clarity with regard to the administration's position on this type of an attack. It is important for us to remember every time government acts, it does so at the expense of the liberty of individual Americans.

This doesn't mean government action is bad. This simply means government action always has to be weighed. It always has to be counterbalanced against the impact it has on the citizenry. It is very important we approach these things delicately. Nowhere is this balancing act more necessary than where we have circumstances in which our government action threatens not just the liberty but also the property or, most important, the life of an individual American. Where life is threatened, the concerns of the Constitution are at their highest where life is threatened as a result of government action.

Government owes it to the citizens to undertake all its activities with utmost caution. It owes it to its citizens never to deprive human beings of their lives, particularly American citizens,

unless it has done so through operation of law with what we call due process of law.

It is on this concept, due process of law, that the 5th and 14th amendments of our Constitution focus so intently. Due process of law is a familiar phrase to many Americans. We have heard this phrase over and over. We understand on some level what it means, but I would like to talk for a few minutes in response to Senator Paul's question about the fact that in order to have due process of law, you need to have a familiar legal standard or at least a legal standard. You have to have a law that is capable of being applied in a way that American citizens can understand.

They can read the law. They can review it. They can understand what the law requires of them. They can understand what it is that the law demands and what it is that the law authorizes the government to do. In the absence of such a law, a law that can be applied, a law that can be understood in advance of its application, you run a very real risk of arbitrary and capricious government action, where government action is arbitrary, capricious and where it threatens to underline life, liberty or property but especially life. There is the greatest level of concerns where the greatest level of detail must be examined with regard to what the government wants to do.

In this circumstance, where the question relates to under what circumstances, to what extent the government may take an American life, the government may snuff out the life of an individual American citizen, the government has an obligation to see to it and to assure its citizens that it will not ever undertake such an action without due process of law. To have due process of law, you need to have a discernible legal standard. A discernible legal standard is not entirely evident on the face of this letter. That is understandable. It is just a brief response to Senator Paul's inquiry.

It is, however, a little troubling Eric Holder doesn't do more to assure Senator Paul in this response to his letter that these kinds of actions wouldn't be necessary to undertake on American soil, that these kinds of actions would be fraught with constitutional problems when undertaken on American soil.

It is difficult to understand why the Attorney General wouldn't just say we will not do this. This would be fraught with constitutional problems. This is not something we would do.

Also troubling is the related point that the Attorney General has apparently relied on some legal analysis provided by the chief advisory body within the U.S. Department of Justice. The U.S. Department of Justice is something one might loosely describe as the largest law firm in the United States. It is the law firm of the Federal Government.

Within any law firm you have lawyers who do different things. There are lawyers who specialize primarily in litigation, lawyers who specialize primarily in attracting agreements or in giving advice to people.

The Office of Legal Counsel within the U.S. Department of Justice is the chief advisory office within DOJ. It was the Office of Legal Counsel which drafted one or more memos outlining the circumstances in which the Obama administration might consider undertaking actions involving lethal force against American citizens.

Sadly, most of us in the Senate have been unable to review those. The American people generally have been unable to review them, but it is particularly frustrating those of us who are members of the Senate Judiciary Committee and, therefore, have an oversight responsibility over the U.S. Department of Justice, have not been fortunate enough to review the memoranda upon which the Obama administration has apparently relied in undertaking this legal analysis.

I had the opportunity to question and did question this morning Eric Holder with regard to these memoranda. I explained to him the great need we have to be able to review these memoranda, particularly as members of the Senate Judiciary Committee. I explained to him this is part of our oversight responsibilities. This is our duty. It is our right to see such documents, and it is very frustrating we have not been allowed to see such documents.

I added to that my concern what we do have is a different document, not the Office of Legal Counsel memorandum but something simply captioned as the ``Department of Justice White Paper.'' I always thought that was an interesting phrase, ``white paper.'' I don't know why they feel the need to call it that, why they don't just call it a paper. Normally, we don't have legal analyses or other important documents which are written on green paper, orange paper or any other color of paper. Nonetheless they call it a white paper.

This paper was leaked by the Obama administration to the news media. This particular paper purported to contain some analysis, perhaps in summary form, the same type of analysis of what was used in the still secret Department of Justice Office of Legal Counsel memorandum.

There were a couple things I found very disturbing about the contents of the white paper. First, the white paper focused on the fact that the U.S. Government may use lethal force to kill an American citizen only where there is an imminent threat of some sort. Where the other conditions outlined in the memorandum are satisfied, there still has to be an imminent threat of some sort. There needs to be an imminent threat that the use of lethal force by the government on the U.S. citizen in question is designed to confront.

That is a somewhat familiar legal term. It is used in other context to identify a circumstance in which one thing has to occur in order to prevent something else even worse from happening.

(Mr. SCHATZ assumed the Chair.)

An individual, for example, when confronted with an imminent threat to his or her own life, is entitled to use lethal force in defending him or herself in order to avoid that attack--in order to avoid death. But it does have to be an imminent threat. There are other examples. When a person argues that a certain action was undertaken under duress, there does have to be some degree of imminence. And it is appropriate in this circumstance, where we are talking about authorizing the Federal Government of the United States of America to use lethal force on an American citizen, that there ought to be some sort of imminent threat to American national security that necessitates and fully justifies that action.

The strange thing about the white paper, this white paper that was leaked by the Obama administration to the news media, is that it redefined ``imminence.'' It redefined it completely. It defined it to be something else, something that bears no resemblance to what you or I would call an imminent threat. It seemed to suggest that an imminent threat may occur even when there is nothing that is about to occur on an immediate basis that would involve a loss of American life or an attack on an American compound or installation or any kind of a loss or a deprivation to American national security.

This is a problem because, as we discussed just a few minutes ago, in order to have due process of law, you have to have law operating, and you have to have law operating as something other than a tool to justify arbitrary and capricious behavior by government. You have to have a discernible, judicially manageable legal standard. Even if it is something that is never going to go through a court, it needs to be a legal standard that means something, that has teeth to it, that doesn't just say government officials may undertake action X, Y, or Z if the government official in question feels moved upon to take such action. There needs to be something that has the capacity to restrain government action, and it needs to be--and the basis of and by operation of generally applicable standards--generally applicable rules of law. That is what we mean when we say due process.

Again, due process and the restrictions that accompany it are at their highest when government wants to take an action that is designed to or could lead to the ending of a human life. The sanctity of human life requires nothing less than that.

Now, there was another part of the memo that was also a little bit disturbing. The other part of the memo suggested it would, of course, be necessary in order to carry out an action involving lethal force against an American citizen; that efforts to capture

that individual would somehow prove to be futile; that those efforts wouldn't work. But there, again, the definition supplied by the white paper suggested something else. The language of the white paper suggested almost that the government official in question, in charge of this decision to end an American citizen's life, could be made somewhat arbitrarily, somewhat capriciously. This is a problem.

You don't want someone sitting there one day having the authority to say so-and-so is a troublemaker, so-and-so shouldn't be there, so-and- so has been involved with some very bad actors. So-and-so may in fact be a bad individual, may in fact be associated with people who want to harm the interests of the United States or may even have been involved in the planning of attacks on the United States, but you don't want the government official in question to be able to end that American citizen's life just on the basis of flimsy analysis, on a toothless legal standard. You want the American people to continue to be able to live under the rule of law and with an understanding that actions of government, particularly those actions designed to bring an end to a human being's life, won't be undertaken lightly.

That is what it means to live in a society that operates under a rule of law as opposed to the rule of individual human beings. It is that we have standards and we reduce those standards to writing. Those standards are rules that are generally accepted and generally applicable, that govern the conduct of individuals in society, and both the governors and the governed will themselves determine the behavior of those involved in our society.

So our law of laws, our rule of rules, our most fundamental law, is the U.S. Constitution--this 225-year-old document that I happen to believe was written by the hands of wise men raised up by their Creator for that very purpose. These were wise men who understood human nature, wise men who understood that whenever you put an individual in charge of a lot of other individuals, there are risks--risks that are inherent in human nature, risks that can be managed if you put certain checks and balances in place, and those checks and balances will ensure that no one person, no one group of people, will become so powerful as to become a law unto themselves.

You see, that is what this document, our Constitution, the Constitution of the United States, was designed to ensure; that we, as Americans, would live free, and we would live free because our laws would govern us, not the whims or the caprice of individuals.

Now, I do have another letter that I would like to share. This is a letter that was sent to my friend, Senator Paul, from Mr. John Brennan, currently serving as Assistant to the President for Homeland Security and Counterterrorism. This letter is dated from just earlier this week. In fact, it is dated March 5, 2013, and here is what it says:

Dear Senator Paul:

Thank you for your February 20, 2013, letter regarding the

power to authorize lethal force, such as a drone strike,

against a U.S. citizen on U.S. soil, and without trial.

The Department of Justice will address your legal question

regarding the President's authorities under separate cover. I

can, however, state unequivocally that the agency I have been

nominated to lead, the CIA, does not conduct lethal

operations inside the United States--nor does it have any

authority to do so. Thus, if I am fortunate enough to be

confirmed as CIA Director, I would have no power to authorize

such operations.

In addition, I have asked the CIA to respond to your

letters of January 25 and February 12, 2013, which raise a

number of important questions regarding issues pertaining to

the advancement of America's strategic priorities around the

globe.

Sincerely, John O. Brennan.

This is helpful. This is a helpful indication from a government official who has been nominated to head the Central Intelligence Agency, and who acknowledges if he is confirmed to this position, he would have no authority as Director of the CIA to order lethal drone strikes within the United States. So that is helpful.

It is still significant that we be allowed to ask from time to time what the CIA might do with regard to other persons--other persons including U.S. citizens outside the United States--and under what circumstances a lethal drone strike or a different type of lethal force might be appropriate when directed toward an American citizen outside the United States.

I notice one phrase he uses in his letter, when he says: `` . . . such as a drone strike against a U.S. citizen on U.S. soil, and without a trial.'' Whenever we are talking about any person within our jurisdiction, whenever we are talking about an American citizen, regardless of where that American citizen might be found, it seems to me we do owe that person certain responsibilities. We owe that person a duty of following the law, of following our most fundamental law--the U.S. Constitution--and following other statutory authorities we have in place specifically to protect the rights and the interests, the life and the liberty and the property of the American people.

We are told those things cannot be taken by the government without due process of law. Now, normally, when we take away someone's life or their liberty or their property, we entitle that person to a trial. This is where our constitutional protections overlap a little bit and they complement each other. We have in the fifth amendment this protection that says that no person shall be deprived of life, liberty, or property without due process of law. There, again, at a bare minimum, that entails the operation of these generally applicable laws that actually have some standards to them. It typically also involves, quite necessarily, an opportunity on the part of the person being acted upon by government to have a trial.

We have elsewhere in the Constitution other protections that guarantee this. We have protections indicating that if a person is charged with a crime by our government, under the sixth amendment they have a right to a jury trial, and they have a right to counsel in connection with that trial. They have a right even to counsel paid for by the government if they can't afford an attorney in connection with that. The seventh amendment, likewise, protects the right to a trial in the context of civil disputes.

So these and other protections overlap to guarantee that Americans will have due process. Frequently, what due process entails, among other things, is the privation of a jury trial. You see, juries do perform an important function. Juries are there to help protect our rights. When we have a jury of our peers deciding critical questions with regard to our interests in life, in liberty, in property, we see to it that a panel of lay persons, a panel of nongovernment officials, a panel of citizens who have sworn an oath to do justice will do precisely that, and they will not shrink from the obligation to enforce the demands of the Constitution. They will not shrink to enforce the demands of the law. They will not shrink from their duties, and they will not see themselves as part of a government establishment.

This is how our constitution protects us and insulates us from the government because we are the people; and we, the people, control the government. We, the people, have the right to a jury trial. And when we actually get a jury trial, we are able to see our rights protected.

So, in response to the Senator's question, I do think there are some problems that we confront as a society. I think the security of the United States is, of course, of paramount importance. We need to protect American national security. We need to protect Americans. As we do so, we also need to protect the inalienable rights of individual Americans to the due process guarantees that are hundreds of years old, that extend at least as far back as the drafting and ratification of our constitution, and are, of course, much older than that. They are centuries, indeed, they are millennia old. We must continue to honor them.

A question I have with regard to an issue that was raised by my friend a few minutes ago, my friend, my distinguished colleague, the senior Senator from Illinois, touches upon an important point, upon a principle of law which dates back centuries and has application in myriad contexts, one that deals with the concept of imminence.

My friend from Illinois is certainly correct in pointing out the white paper leaked by the Obama Department of Justice to the news media recently does include some analysis that talks about imminence.

It is significant, however, to point out, on page 7 of that white paper the

administration goes on to essentially eviscerate that concept of imminence. In fact it makes clear that this condition, that is the condition dealing with imminence, with the idea of protecting an imminent threat of violent attack against the United States ``does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.''

That is at the top of the first full paragraph on page 7 of the very same white paper that my friend from Illinois was quoting.

In response to that question, it is important to point out that they have taken the imminence out of imminent. There is no more imminence in this standard. So if, in fact, we are to believe the white paper is the correct assessment of the administration's position, it is no longer an imminent standard. It is something else. It is something of a new development. It is something that was created out of whole cloth by this administration that has nothing to do with the traditional imminent standard.

I ask my friend from Kentucky whether this is consistent with time- honored notions of due process.

Mr. President, I ask unanimous consent for leave to engage in a colloquy with Senator Barrasso for a period of time not to exceed 15 minutes.

Mr. President, the President of the United States has spent the last few weeks campaigning around our great country at taxpayer expense, telling Americans about what he characterizes as the catastrophic impact of the sequester. He said, for example, that the sequester will visit hardship on a whole lot of people. He said it will jeopardize our military readiness, it will eviscerate job-creating investments in education and energy and medical research. He said the ability of emergency responders to help communities respond to and recover from disasters will be disregarded. Border Patrol agents will see their hours reduced. FBI agents will be furloughed. He said Federal prosecutors will have to close cases and simply let criminals go. Air traffic controllers and airport security will see cutbacks, which means more delays at airports across the country. He said thousands of teachers and educators will be laid off and that tens of thousands of parents will have to scramble to find childcare for their kids. And he also continued: Hundreds of thousands of Americans will lose access to primary care and preventive care such as flu vaccinations and cancer screenings.

Today we see the predictions of doom and gloom have not come to pass. We have seen that many of these statements have been severely exaggerated, if not disproven. People in my home State of Utah have found the effects of the sequester to be not quite what the President predicted. One of our local Utah news stations reported that ``there were no signs of sequester pain'' at the airports. When asked about sequestration, one Utahn responded: ``If they can't handle a 2 percent reduction in spending then I guess we need to get better and brighter,'' meaning we need to get better and brighter people running our government.

Other press reports indicate the administration's doomsday claims have misled the public. The Washington Post reported that the Education Secretary's claims about teacher layoffs turned out simply not to be true. And Politico recently published a story showing the President's claims about some capital staff getting pay cuts to be false.

I ask Senator Barrasso, after all these scare tactics over the last 2 weeks, does the President have a credibility problem with the American people when it comes to the sequester?

I thank my friend, Senator Barrasso. I find it interesting that what the Senator has observed on the streets of towns such as Evanston, Cheyenne, and Gillette in Wyoming is backed up by a recent poll conducted by Gallup. That poll shows Americans understand that a lot of money Washington spends is wasted. This Gallup poll shows that the average American believes Washington wastes 51 cents out of every $1 it spends--51 cents. More than half of every dollar that hard- working Americans earn and send to Washington gets wasted.

Congress and the President should be working together to target, reform, reduce, and eliminate wasteful spending

that the American people are noticing. They should be working to get rid of and reform ineffective programs.

Meanwhile, the President is threatening to make cuts to government spending as painful as it can possibly be. Instead of targeting waste, the President is using scare tactics to persuade Americans that cuts have to come first from important services such as law enforcement, national security, border patrol, first responders, and educators.

Just today, the administration announced it was going to furlough schoolteachers who educate the children of military families on U.S. military bases, recognizing, of course, that most school systems are operated at the State and local level. They are funded primarily at the State and local level. The administration started focusing on educators who teach on base to military families, suggesting that those teachers would have to be furloughed.

Republicans have a better idea. The Senate Budget Committee--and in particular the ranking Republican serving on the Senate Budget Committee--has found that the cost of President Obama's recent golf vacation with Tiger Woods cost Americans an amount of money that, if saved, would have allowed us to prevent the furlough of 341 Federal employees. Can the President cancel a vacation or two in order to avoid some of these furloughs? That is the question that has prompted us to start this information campaign that we refer to as ``Cut this, not that,'' as depicted in this graphic.

This graphic shows under ``Cut this,'' golf vacations by the President, and under the ``not that,'' it shows military base teachers. That is what we should be focusing on. That is where we ought to prioritize. We need to identify those areas where there could be a lower priority attached to something we are already spending money on. ``Cut this, not that'' sends a message to the President and the American people that Washington should be setting spending priorities rather than wasting their hard-earned tax dollars.

I ask the Senator--through the Chair--how can it be that this administration chooses to cut border law enforcement, first responders, and educators instead of the fraud and waste that is so rampant in the government?

I thank the Senator. It is important for us to recognize that all these observations draw back to one central conclusion, which is that the sequester and wasteful spending we see so rampant throughout our Federal Government is the natural product of the failure by the majority leadership in the Senate to work with Republicans to pass a budget.

Last year, in the Senate, Republicans proposed 3 different budgets and received as many as 42 votes. That is 42 more votes than the President's budget received in this body last year or the year before or in the House last year or the year before.

The majority party in the Senate--those in charge of this body and elected to lead in this body--have refused even to propose a budget for the country for more than 1,400 days.

We have spending priorities. I am sure my friends across the aisle have spending priorities as well. It is time we do the right thing for the American people. We need to sit down and have an open and honest dialog with the American people and with each other. We need to hammer out these ideas and come up with a budget that fairly and accurately represents the priorities of the American people. We need to pass a budget, and I urge my colleagues to do so.

I thank the Chair.

I yield the floor.

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

Madam President, I rise today to speak in opposition to the nomination of Caitlin Halligan to be a circuit judge on the U.S. Court of Appeals for the District of Columbia Circuit.

The D.C. Circuit is arguably the most important Federal appellate court in our country's judicial system, with primary responsibility to review administrative decisions made by many Federal departments and executive branch agencies. It has also served, in many instances, as a stepping stone of sorts for judges later appointed to the U.S. Supreme Court. As a result, the Senate has a longstanding practice of carefully scrutinizing candidates to the D.C. Circuit.

When evaluating particular nominees, we also carefully consider the need for additional judges on that very court. In July 2006 President Bush nominated an eminently qualified individual named Peter Keisler to fill a seat on the D.C. Circuit. Mr. Keisler, whom I know personally, is among the finest attorneys in the country and is also among the finest individuals I know. Because of his nonideological approach to the law, Mr. Keisler enjoys broad bipartisan support throughout the legal profession. Despite these unassailable qualifications, Democratic Senators blocked Mr. Keisler's nomination. He did not receive any floor consideration whatsoever, not even a cloture vote, and his nomination languished in the Judiciary Committee. At the time a number of Democratic Senators sent a letter to the Judiciary Committee chairman arguing that a nominee to the D.C. Circuit ``should under no circumstances be considered--much less confirmed--before we first address the very need for that judgeship.'' These Senators specifically argued that the D.C. Circuit's comparatively modest caseload in 2006 did not justify the confirmation of an additional judge to that Court, even though this was a position that by law already existed.

More than 6 years have passed, and Ms. Halligan has been nominated once again to that very same seat on the D.C. Circuit--the same seat for which Peter Keisler was nominated--but the court's caseload remains just as minimal as it was then. According to the Administrative Office of the U.S. Courts, the D.C. Circuit caseload is so light that the number of appeals pending per judicial panel is 54 percent less than the average for Federal courts of appeal. With just 359 pending appeals per panel, the D.C. Circuit's average workload is less than half that of other similar appellate courts.

The D.C. Circuit caseload has actually decreased since the time Democrats blocked Mr. Keisler. Indeed, since 2005 the total number of appeals filed is down over 13 percent. The total number of appeals pending is down over 10 percent. Some have sought to make much of the fact that since 2005, two of the court's judges have taken senior status, leaving only seven active judges on the D.C. Circuit today. But the court's caseload has declined so much in recent years that even filings per active judge are only slightly higher than they were in 2005. Of course, that does not account for the six senior judges on the D.C. Circuit who continue to hear appeals and offer opinions on a regular basis. Their contribution--the contributions of the senior judges on that court--is such that the actual work for each active judge has declined and the caseload burden for D.C. Circuit judges is less than it was when Democrats blocked Mr. Keisler on the basis of a declining, insufficient caseload.

Indeed, the average filings per panel--perhaps the truest measure of the actual workload per judge in the U.S. Court of Appeals--is down almost 6 percent since that time.

In each of the last several years, the D.C. Circuit has cancelled regularly scheduled argument dates due to the lack of pending cases. Those who work at the courts suggest that in reality the workload isn't any different today than it has been in the past.

According to the Democrats' own standards, and particularly when there are judicial emergencies in other courts across the country, now is not the time to confirm another judge to the D.C. Circuit. It is certainly not the time for us to consider confirming a controversial nominee with a record of extreme views with regard to the law and the Constitution.

Make no mistake, Ms. Halligan is not what we would call a consensus nominee. The Senate has already considered and rejected her nomination. Nothing material has changed since that time.

Many of my colleagues have discussed a wide range of Ms. Halligan's views, so I will limit myself to one example. In 2003, while serving as Solicitor General for the State of New York, Ms. Halligan approved and signed a legal brief arguing that handgun manufacturers, wholesalers, and retailers should be held liable for criminal actions that individuals commit with those guns. Three years later, in 2006, Ms. Halligan filed another brief arguing that handgun manufacturers were guilty of creating a public nuisance.

Such arguments amount to an invitation for the courts to engage in sweeping judicial activism. The positions she took are both bewildering and flatly inconsistent with the original understanding of the second amendment rights all Americans enjoy.

In conclusion, as measured by the Democrats' own standards and their own prior actions, now is not the time to confirm another judge to the D.C. Circuit, and it is certainly not the time to consider such a controversial nominee for that very important court. The Senate has already spoken and rejected Ms. Halligan's nomination. I urge my colleagues once again to oppose her confirmation.

Mr. President, I rise today to pay tribute to a special class of people who are critical to the success of any U.S. Senator.

During the recent Super Bowl game, one advertisement stood out among all the others. It was an advertisement based on a tribute taken from the great American Paul Harvey. It was entitled ``So God Made a Farmer.'' While I respect and admire farmers greatly, especially those I know from Utah, I am also certain that my colleagues in this Chamber will agree that when it comes to this institution, we can rightly change that statement ever so slightly to say, ``So God Made a Chief of Staff.''

My first chief of staff Spencer Stokes is returning to Utah. He is also returning to his family and to private life after 2 extraordinary years serving me in my office. I offer this in tribute to him and to all great chiefs of staff who labor here on Capitol Hill.

When God looked down on the Senate, He realized that Senators alone could never keep things running and He said, I need a caretaker. So God made a chief of staff. He needed someone whose first thought in the morning and last thought at night would be about helping and serving a Senator; who would rise before dawn and organize the day, set the strategy, deal with the thick and thin of things, and steer the Senator away from bad meetings, bad policy, and bad people; someone who would work all day in and out of the office, would skip holidays, birthdays, and parties in pursuit of their service, who would stay past midnight waiting for a vote, and then be willing to get up at the crack of dawn the next morning to do it all again. So God made a chief of staff.

He needed someone with thick skin, strong will, and at the same time a soft touch; strong enough to herd cats, yet gentle enough to comfort a grieving constituent or staff member; someone to call BS, tame the cantankerous bureaucracy of government, creatively solve problems big and small, and patiently listen to a hostile constituent with an axe to grind, and then tell that same constituent to come back again real soon--and mean it. So God made a chief of staff.

God said, I need someone who can shape a staff, shine shoes, horse trade for furniture and office space, navigate a litany of ethics and rules requirements, and play the role of cruise director for countless constituent tours of Washington, DC; someone who will put in a full 40 hours by Tuesday at noon, and then put in another 72 hours on top of that by the end of the week. So God made a chief of staff.

He had to have someone willing to sprint at double speed to stay ahead of a news story, and yet stop on a dime and pivot to help the real people of this country, no matter the consequences, no matter the circumstances, and regardless of what the press might be doing at the moment. He needed someone who, when the Senator becomes surrounded by ``yes'' men is willing to say humbly yet firmly and resolutely, ``No, sir.'' So God made a chief of staff.

He said, I need somebody strong enough to catch arrows, take heat, endure withering criticism, and patiently listen to angry voices; somebody who is just fine with little prominence, praise, prestige, or perks, and who above all is fiercely loyal and forever has the Senator's back. So God made a chief of staff.

I am fairly certain that when God looked down on a newly elected Senator from Utah during the final months of 2010, He knew that any old chief of staff wouldn't do. So, in my case, he actually chose a farmer--a turkey farmer, to be specific--from Bothwell, UT, named Spencer Stokes.

Spencer has been a truly outstanding chief of staff. Doing the heavy lifting and providing the Herculean effort required to set up an office and build a staff from scratch proved to be Spencer's forte. It proved to be easy for him--or at least he made it look easy. He has an eye for detail like no other, though we occasionally need to remind him to ``zoom out.'' Straight chairs in the conference room, straight desks, and even straight ties all set the stage for straight talk about issues and policy and serving constituents.

Spencer's love of Utah and its people is unequaled. As a first order of business, he set out to make my office something of an embassy for my State. So when you walk into our office, you are actually walking quite literally into Utah. From the art on the walls to the naming of the conference rooms, from our legendary JELL-O Wednesday to the staff reading of the smalltown Utah newspapers each week--everything leads to an experience in our office, and everything in our office is an experience of Utah.

Spencer will long be remembered and appreciated for his handwritten notes, the best night tour in DC--a true story--bringing people together, confetti cannons, Utah fry sauce, lots of laughter, and a tireless commitment to make bad things good and good things even better.

From Spencer's perspective, there are no small players in this great institution that is the Senate. He did not just preach that philosophy, he lived it every single day he was here. As a testament to that, we noted that when we asked him to provide a list of all the people he wanted invited to his farewell party, at the top of Spencer's list there were people who were not necessarily of high status. No, the top of the list was reserved for the people who really make this place go: cashiers and cooks, security personnel, guides and junior staff from nearly every corner of this building.

I salute Spencer Stokes for his service to this Nation, to this institution, and to the people of Utah. I salute Spencer for his service to me and my family. I will forever be thankful that God made a chief of staff and especially thankful for a particularly extraordinary chief of staff, Spencer Stokes.

Madam President, today I would like to address a provision of the Violence Against Women Act, S. 47, that is of great concern. Title IX of VAWA provides tribal courts with special jurisdiction over non-Indians who are charged with crimes of domestic violence. While title IX requires tribal courts availing themselves of this special jurisdiction to provide the non-Indian defendant ``all other rights whose protection is necessary under the Constitution,'' I am concerned that such proceedings have the potential to deprive U.S. citizens of crucial due process rights, especially without further connection to the existing Federal court system.

First, title IX currently requires a defendant to be tried by an impartial jury drawn from sources that ``reflect a fair cross section of the community.'' We are always concerned that the population from which a jury is drawn not result in bias against a defendant who may not be part of the same race, culture, or religion as the jurors. While the population of many Indian lands consists of a wide variety of both Indians and non-Indians, many parts of Indian country are populated by Indians who have close ties to one another but limited interaction with non-Indians. I believe we must seek to minimize the potential for bias against non-Indian defendants under such circumstances.

Second, in State and Federal courts, the defendant has several options with which to challenge the validity of the court's rulings. Under the special jurisdiction laid out in title IX, the defendant lacks both the ability to remove his case to Federal court when appropriate and the ability to appeal a decision to a Federal appeals court. While many tribal courts have proven to be as consistent and fair as traditional courts, the possibility of removal and appeal is key to the oversight that U.S. citizens rightfully expect in criminal proceedings.

For these reasons I respectfully urge my colleagues to oppose S. 47.

Mr. President, I have an amendment at the desk. I ask for its immediate consideration.

I ask unanimous consent the reading of the amendment be dispensed with.

Mr. President, I stand today and urge my colleagues' support for my amendment to this bill. I appreciate the eloquent arguments made by my friend and colleague, the Senator from New York, a moment ago. She is correct to point out that people have suffered as a result of this storm. My heart goes out to them. Anytime my fellow Americans find themselves in a position of need, we want to address that situation very carefully and make sure we do the right thing, make sure people are not overlooked.

As we do that, and especially as we do something such as that in the way we are being asked to do it here, we must also consider how our actions here might have other implications down the road. We have to stop and consider that we are more than $16 trillion in debt and we are adding to that debt at a rate of more than $1 trillion every single year. The amount of money we spend in interest on our national debt now stands at a little over $200 billion a year and is expected to grow significantly in the next few years, such that by the end of this decade--perhaps much sooner--we are likely to be paying close to $1 trillion a year just to pay the interest on our national debt.

It is because of considerations such as these that we put in place certain spending caps, in connection with the Budget Control Act, in the summer of 2011. It is for this same reason I am asking that we consider capping this, subjecting this same amount, this money we are being asked to spend here, to the same caps. In other words, what I am suggesting is that we find a way to offset our spending for this bill by stretching it out over the next 9 years, capping what we spend. All we have to do to offset what we are being asked to spend here is to cut our discretionary spending by one-half of 1 percent over the next 9 years.

As we look at our economic realities, as we look at the fact it is going to be very difficult in coming years to fund everything we need to do through the Federal Government, this is the approach we have to take with regard to new spending. If we are being asked to spend money, no matter how important the cause, to the tune of more than $50 billion in one fell swoop, I think we owe it to the good people of the United States of America, the good people who depend on so many things the Federal Government does--things as wide ranging as defense at one end of the spectrum and entitlements at the other end of the spectrum and everything in between--we owe it to them to consider how our actions today might forestall, might complicate, might impair our ability to fund those programs down the road. It is for this reason I think we need to offset this spending. We can do it by cutting only one-half of 1 percent of our discretionary spending over the next 9 years. For that reason I urge each of my colleagues to support this amendment.

I yield the floor.

Mr. President, I ask for the yeas and nays.

Mr. President, in just a moment I will be offering an amendment to S. Res. 15. The purpose of this amendment is to protect this institution as the world's greatest deliberative legislative body. The hallmark characteristics of this body that make it distinct, that make it both great and

deliberative, include the fact that as individual Senators we are supposed to have the right to participate in an open and robust debate that includes an open amendment process. This is historically one of the things that has defined this institution. It is naturally the outgrowth of the fact that pursuant to article V of the Constitution, each State of the Union is entitled to equal representation in the Senate.

So as we are talking tonight, we have to remember that we are not talking about the rights of the minority or the majority. We are talking about the rights of each individual Senator having been duly elected by the voters in his or her State. I have a concern that some of the implications of S. Res. 15 could undermine this characteristic of the Senate. In other words, S. Res. 15, while crafted with the very best of intentions, could be applied at some point so as to undermine this right of each and every Senator to offer an amendment.

What my amendment does is to guarantee that once this procedure, the procedure under the standing order created by S. Res. 15--once it has been invoked, every Senator in this body would have the right to file, postcloture, a germane amendment to the pending legislation.

I think the history, the custom, and the tradition of this body and all the things that have made this body great require nothing less than that.

I urge my colleagues to support this amendment once we bring it up.

I yield my time.

I call up my amendment.

I ask unanimous consent the reading of the amendment be dispensed with.

Mr. President, I ask unanimous consent that we call up amendment No. 3373, as modified.

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

Mr. President, it is important that we begin the long overdue process of reforming the way the Federal Government responds to catastrophic disasters.

Too often Federal disaster relief has been reactive, bureaucratic, arbitrary, and billions of dollars are spent. Sometimes that happens with little or no accountability. Resources go unused, goals are not met, and redtape delays recovery. In the end, it seems Washington focuses sometimes solely on the price tag rather than on the people we are trying to help.

The current model assumes that politicians and bureaucrats in Washington are best suited to decide where, when, and how best to allocate resources during an emergency, but common sense and decades of experience tell us otherwise. It is the people on the ground--local officials and emergency responders, of course, but also individuals, families, and voluntary organizations--who are best equipped to help communities respond and recover from disasters.

As I looked into these issues, it became clear to me that even as the Federal Government has distributed billions for recovery with the right hand, regulations and bureaucracy have choked the recovery process with the left hand. Our recovery policy needs to be both more flexible and more consistent. Flood victims on the east coast deal with the same issues as flood victims in the gulf. Yet they are often faced with different rules and requirements. Federal policy should be clarified so that local officials and private citizens understand the process before a disaster occurs rather than having to deal with it and figure it out after the fact.

My amendment would create permanent, substantive regulatory reforms to assist victims of all disasters. It would create no new Federal program or taxpayer burden. It would instead remove redtape and provide temporary but immediate regulatory relief for disaster victims and relief volunteers. It would make it easier for a family to access savings to begin immediate recovery. It would temporarily waive certain regulatory burdens for people providing essential services after a disaster. It would expedite shipping to ensure we can get critical materials to areas affected by a disaster. Most importantly, my amendment would make these reforms automatic so that communities could begin rebuilding immediately and without having to wait for Washington, DC, to act. These are important and I believe overdue reforms, and they represent a good first step toward improving our approach to disaster relief.

I am pleased with the positive response this proposal has received so far, although I understand that some of my colleagues have concerns that a few of these substantive changes merit additional discussion and consideration.

I believe these reforms ought to be permanent fixtures of Federal emergency response policy, and ideally they should be part of a more comprehensive package to overhaul how we respond to Federal disasters.

I have spoken with my good friend Senator Hatch, the ranking member of the Finance Committee--the committee in which many of these reforms will and should properly be debated. He has expressed an interest in working with me on these reforms in the new Congress.

I look forward to and encourage all of my colleagues to join me in a serious and meaningful dialog about these critical issues.

Amendment No. 3373, as Modified, Withdrawn

Mr. President, with that understanding, I withdraw my amendment because I am confident that a broader discussion will be good for the country and will result in reforms that will eliminate waste, facilitate quicker recovery, and deliver assistance to Americans most severely affected by disasters.

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

Mr. President, no one disputes the vital importance of our national security. Indeed, in Federalist No. 41, James Madison noted that ``[s]ecurity against foreign danger is one of the primitive objects of civil society,'' and he emphasized that such security ``is an avowed and essential object of the American Union.'' Government officials have a solemn duty, particularly in the age of global terrorism, to help ensure that the American people are safe and secure.

Yet at the same time, the government also exists to do a lot more than just promote security. Its most fundamental purpose is to protect our natural and inalienable liberties. Safeguarding individual rights and liberties is the bedrock of American Government. In the words of our Nation's founding document, the Declaration of Independence, it is ``to secure these rights [that] Governments are instituted among Men.''

In our quest for ever-greater security, we must be mindful not to sacrifice the very rights and liberties that make our safety valuable. As Benjamin Franklin put it, ``Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.''

I worry that in seeking to achieve temporary safety, some of the authorities we have given the government under FISA may compromise essential rights and liberties. In particular, I am concerned about the government's ability, without a warrant, to search through FISA materials for communications involving individual American citizens. I worry that this authority is inconsistent with and diminishes the essential constitutional right each of us has ``to be secure . . . against unreasonable searches and seizures.''

We do not know the precise number of communications involving American citizens that the government collects, stores, and analyzes under section 702 of FISA. Whether this number is large or small, I believe we must enforce meaningful protections for circumstances when the government searches through its database of captured communications looking for information on individual American citizens; otherwise, by means of these so-called backdoor searches, the government may conduct significant warrantless surveillance of American persons. I believe this current practice is inconsistent with core fourth amendment privacy protections and needs to be reformed.

During consideration of FISA in the Judiciary Committee, Senator Durbin and I offered a bipartisan amendment to address this very problem. The language of our amendment is identical to that offered by Senators Wyden and Udall during consideration of FISA by the Select Committee on Intelligence. The amendment clarifies that section 702 does not permit the government to search its database of FISA materials to identify communications of a particular U.S. person.

In effect, it would require the government to obtain a warrant before performing such queries involving an American person's communications. The amendment is limited in scope. It excludes from the warrant requirement instances where the government has obtained an emergency authorization, circumstances when the life or physical safety of the American person targeted by the search is in danger and the search is for the purpose of assisting that same person, and in instances where the person has consented to the search.

Moreover, the warrant requirement would apply only to deliberate searches for American communications and would not prevent the government from reviewing, analyzing, or disseminating any American communications collected under FISA and discovered through other types of analysis.

FISA rightly requires that the government obtain a warrant anytime it seeks to conduct direct surveillance on a U.S. person. Indirect surveillance of U.S. persons by means of backdoor searches should be no different. No one disputes that the government may have a legitimate need to search its FISA database for information about a U.S. person, but there is no legitimate reason why the government ought not first obtain a warrant, while articulating and justifying the need for its intrusion on the privacy of U.S. persons. Our constitutional values demand nothing less.

Unfortunately, we will not be voting on such an amendment later today, so our reauthorization of FISA will include a grant of authority for the government to perform backdoor searches, seeking information on individual American citizens without a warrant. I believe such searches are inconsistent with fundamental fourth amendment principles. For this reason, I cannot support the FISA reauthorization, and I urge my colleagues to oppose the bill in its current form.

I would like next to speak about a few amendments I think would make some improvements to this legislation, nonetheless. I would like to first speak on the Merkley-Lee amendment, which would require declassification of significant FISA Court opinions.

The FISA Court is authorized to oversee requests for surveillance both inside and outside of the United States. Given the sensitive nature of these requests, it is necessarily a secret court, a court whose rulings, orders, and other deliberations are and remain classified. Yet, although much of the court's work must properly be kept confidential, it must not operate without meaningful oversight.

Beyond the straightforward application of the law to specific and sometimes highly classified circumstances, FISA Court rulings may include substantive interpretations of governing legal authorities. As is true in every court called on to construe statutory text, FISA Court interpretations and applications are influential in determining the contours of the government's surveillance authorities. Unlike specific sources of information or particular methods of surveillance collection, which are properly classified in many instances, I believe the FISA Court's substantive legal interpretation of statutory authorities should be made public.

A hallmark of the rule of law which is a bedrock principle upon which our Nation is founded is that the requirements of law must be made publicly available--available for review, available for the scrutiny of the average American.

The Merkley-Lee amendment establishes a cautious and reasonable process for declassification consistent with the rule of law. Its procedures are limited in three key respects:

First, the pathway for declassification applies only to the most important decisions that include significant instruction or interpretation of the law.

Second, declassification must proceed in a manner consistent with the protection of national security, intelligence sources and methods, and other properly classified and sensitive information.

Third, the process contemplates instances where the Attorney General determines declassification is not possible in a manner that protects national security. In such cases, the process requires only an unclassified summary opinion or a report on the opinion that happened to remain classified.

This modest and bipartisan amendment will help ensure that we are governed by the rule of law, that government activities are made by applying legal standards known to the public, and that we remain, in John Adams' famous formulation, ``a government of laws and not of men.''

I would like next to speak on the Wyden amendment to require a report on the privacy impact of FISA surveillance. The FISA Amendments Act of 2008 gave the government broad authority to surveil phone calls and e- mails of people reasonably believed to be foreigners outside the United States. Despite the intent that this authority be directed at noncitizens who are located abroad at the moment the surveillance is collected, officials have acknowledged that communications by Americans may be swept up in the government collection of those same materials.

I believe it is critical for both Congress and the public to have access to information about the impact of these FISA authorities on the privacy of individual Americans. Only with such knowledge can we reasonably assess whether existing privacy protections are sufficient or whether reforms might be needed. Yet senior intelligence officials have declined to provide in a public forum the necessary information to such discussion and such analysis.

In particular, it is essential that we learn the extent to which Americans' communications are collected under FISA, whether this includes any wholly domestic communications, and whether government officials subsequently searched through those communications and conducted warrantless searches of phone calls and e-mails related to specific American persons. This modest compromise in this modest, commonsense amendment requires the Director of National Intelligence to provide this information and report back to Congress regarding the privacy impact of the FISA Amendments Act. Given the sensitive nature of this information, our amendment provides for necessary redactions to protect core national security interests that would be important to our country and help keep us safe.

Providing Congress with answers to these critical questions should be a relatively uncontroversial exercise. It should be a no-brainer. Only with such information can we do our job of ensuring a proper balance between intelligence efforts on the one hand and the protection of fundamental individual rights and liberties on the other hand.

Finally, I would like to speak on the Paul amendment, the Fourth Amendment Preservation and Protection Act. The fourth amendment protects the right of the people to be secure in their persons, papers, and effects against unreasonable searches and seizures. At its core the Constitution protects our right to be free from unwarranted government intrusion in our affairs absent probable cause, which the government must set forth with specificity to a court in an application for a warrant.

It is undisputed that absent exigent circumstances, consent, or a warrant, the government may not intrude upon a person's home and search through his papers and personal effects. But we no longer keep our most sensitive information solely in the form of physical papers, physical documents, and other tangible things. The explosion of data sharing and data storage has made our economy more responsive and more efficient, but it also creates the potential for government abuse.

Congress has a fundamental responsibility to protect the individual liberties of Americans by ensuring that the Constitution's core fourth amendment protections are not eroded by the operation of changed circumstances, by new techniques that are made possible and in some cases made necessary by new technology. But Congress has failed to do this.

Some court rulings have likewise fallen short of protecting the full scope, the full spirit of the fourth amendment as it applies to our world of complex data sharing. Courts have attempted in good faith to determine whether individuals have a reasonable expectation of privacy in different kinds of information that they might share with third parties, sometimes online, but the results of many of these rulings are a varied and unpredictable legal landscape in which many do not know and cannot figure out whether they can rely on the fourth amendment to protect sensitive information they routinely share with others for a limited business purpose.

Congress needs to act to preserve the fourth amendment's protections as they apply to everyday uses, including routine use of the Internet, use of credit cards, libraries, and banks. Absent such protections, individuals may in time grow wary of sharing information with third parties.

I am cognizant that this area of the law is complex. It is full of changes. It is full of instances in which we have to undertake a very delicate balancing act. Nevertheless, much work remains to be done to ensure that the fourth amendment protections are here and that they are real and that they benefit Americans and they do so in a way that does not interfere with legitimate law enforcement and national security activities. We must not shy away from the task simply because it is hard. It is daunting, but it is possible and it is necessary. Congress must act to preserve Americans' constitutional right to be secure in their persons, their papers, and effects against unreasonable searches and seizures.

The PRESIDING OFFICER (Mr. Franken.) The Senator from Montana.

Mr. President, Nelson Mandela said, ``Education is the most powerful weapon which you can use to change the world.'' In Utah, Weber State University President Ann Millner has lead the charge to increase, improve and enhance higher education opportunities for anyone who has sought them. After 10 years of distinguished service she is stepping down from her post and I rise to honor her today.

Before being selected president of the university, Ann served Weber in a variety of capacities including vice president for university relations, associate dean of continuing education, assistant vice president for community partnerships and director of outreach education in the school of allied health services. President Millner brought with her a well-rounded resume of leadership in education gained at several different universities. She served as education coordinator of the medical technology program at Vanderbilt University, instructional developer in medical technology at Thomas Jefferson University, a lecturer at the school of health professions, Southwest Texas State University, and associate director of continuing education at the Edmonda campus of Gwynedd-Mercy College. Ann has given her career to the pursuit of improving educational opportunities around the country and that motivation has been central to her administration at Weber.

In 2002, Ann was selected as president of the university from a pool of 55 possible candidates. Regent George Mantes said, ``In selecting a president of Weber State University we looked for someone who could lead a university that serves over 17,000 students and who would also be seen as a community leader for Northern Utah. We had terrific people to choose from and feel confident that in selecting Dr. Millner we have found the right person to fill both of these important roles.'' Mr. Mantes and the selection committee's confidence in President Millner has paid off. Under her leadership Weber State University opened a new campus in Davis and enrollment increased from 17,000 to 25,000. The university has added a number of new programs, certificates, baccalaureate and graduate degrees including seven masters degree programs and countless online course work which all serve to both enhance and expand the educational opportunities offered to students. Weber has gained particular acclaim for its growing engineering Computer and Electronics Engineering Technology department, which focuses on training students in the innovations and technologies of the future. In 2010 President Millner announced the ``Dream Weber Program,'' one of the many scholarship and outreach programs her administration developed to make higher education a possibility for those who would otherwise not have the opportunity.

The new and upgraded facilities on Weber's campus stand as a powerful symbol of the legacy President Millner leaves behind. In addition to an entire new campus in Weber, President Millner oversaw the construction of the Hurst Center for Lifelong Learning, a two-story facility dedicated to helping provide students with opportunities to continue education. She also oversaw the opening of Wildcat Village, a residential housing facility that serves over 500 students with a fun, low-cost housing experience. She also oversaw the construction and opening of Elizabeth Hall, a state-of-the-art classroom building which features multimedia capabilities, writing and tutoring centers and enough classroom space to offer more classes than any other building on campus. These three buildings exemplify some of President Millner's major accomplishments during her presidency: to increase focus on education as a lifelong pursuit, to increase educational opportunities and to enhance educational experiences with cutting-edge technologies and facilities.

President Millner brought with her a vision of the collaborative relationship the university would have with the surrounding northern Utah community. In 2008, Weber State received the Carnegie Foundation's Classification for Community Engagement, an award recognizing the collaboration ``between educational institutions and local, state, regional, national and local communities for the mutually beneficial exchange of knowledge and resources.'' Under her leadership, Weber State University also has taken part in the Utah Science, Technology and Research (USTAR) Initiative, which brings local businesses and industries together with educational institutions to ``help commercialize high potential inventions, enhance the climate for innovation and entrepreneurism and stimulate the creation of local enterprises.'' The initiative provides students with the opportunity to gain first-hand business experience and has had a tremendous positive impact on the regional economy.

In the statement announcing her resignation, Ann quoted William James: ``The best use of life is to invest it in something that will outlast it.'' She followed by saying ``the work you are doing at this university will long outlast our time here. Our students, their families, and generations to come--all will be changed by what you are doing and what the university will continue to do in the future!'' While Ann may have been addressing her remarks to the students, they are certainly just as applicable to her own efforts. Ann's tremendous vision and leadership has catapulted Weber State University to national recognition and a growing reputation for educational excellence. Sharon and I thank her for her service and for the charge she has led to increase the quality and reach of education within the great State of Utah.

Madam President, today I wish to honor one of Utah's finest, MG Brian Tarbet, the Adjutant General of the Utah National Guard. After 12 years of leadership with the Utah National Guard and 39 years of highly decorated service in the United States Military, General Tarbet is retiring, closing a transformative chapter in Utah's history.

General Tarbet's military career began in the U.S. Army Reserve in 1973, where he served on active duty until 1975 and then joined the Army National Guard in 1976. From 1976 he served in the 142nd Military Intelligence Battalion and was then appointed Commander of the 300th Military Intelligence Linguist Brigade in 1993. He led the 97th Troop Command in 1996 and from September of 2001 he directed the mobilization, deployment and redeployment of virtually all units of the Utah Army and Air National Guard in support of the Global War on Terrorism. The Utah National Guard has units that specialize in intelligence, special forces and aviation which have been particularly important to the War on Terrorism, and in 2003-2004, 80 percent of Utah's reserve units were mobilized or on alert, which was among the highest in the National Guard. The Guard also provided assistance in the gulf coast in 2005 to the victims of hurricanes Rita and Katrina and to the U.S.-Mexico border in support of Customs and Border protection operations.

General Tarbet's awards and achievements include the Legion of Merit, Meritorious Service Medal, Army Commendation Medal, Army Achievement Medal, Army Reserve Components Achievement Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Military Outstanding Volunteer Service Medal, Armed Forces Reserve Medal, the Army Service Ribbon, the Army Reserve Components Overseas Training Ribbon, Utah Medal of Merit, Utah Joint Commendation Medal, Utah Achievement Ribbon, Utah Joint Staff Service Ribbon, Utah State Partnership Program Service Ribbon, Utah Service Ribbon, Utah Emergency Service Ribbon, and the 2002 Winter Olympic Games Service Ribbon.

In 2002, just months after the September 11th terrorist attacks, Salt Lake City was slated to host the Winter Olympic games. Security was a tremendous concern with talk of cancelling the games altogether. With the entire nation on high alert, General Tarbet commanded 4,500 National Guardsmen from 25 States in the security operation. The games were a tremendous success, and the security was lauded for its effectiveness and unobtrusiveness. The games served as a triumphant American moment at a time when the nation needed it most.

The good will of the Utah National Guard extends far beyond the borders of our own State, and guided the men and women of the Guard to places where their service was needed most. Winston Churchill said, ``The price of greatness is responsibility.'' General Tarbet has seen more than his fair share of difficult tasks and responsibilities and has performed each admirably. I believe every soldier who has had the opportunity to serve under his charge would agree that he has been a leader of unprecedented character. The greatest commendation came from one of Tarbet's own soldiers, who said, ``Major General Tarbet is loved by his soldiers. He has served us with impeccable integrity, courage and common sense during a very tumultuous and unprecedented time.'' Sharon and I thank Major General Tarbet for his service and wish him and his wife Mary all the best as they enter the next chapter of their lives.

Mr. President, I rise today to speak in opposition to the ratification of the United Nations Convention on the Rights of Persons with Disabilities. I understand it is a sensitive topic, one about which many of my constituents on both sides of the issue have strong feelings.

Certainly most of us, if not all of us, have a family member or friend with a disability, and all of us live in a society that includes the disabled as highly valued members of our communities.

I have heard from advocacy groups consisting of people who hope and believe that this treaty will protect disabled Americans as they travel abroad and as they go about their lives. But I have also heard from parents of disabled children who are concerned that this treaty, in adherence to the ``best interests of the child'' standard in article 7, will threaten their rights as a parent to determine the best education, treatment, and care for their disabled children. Proponents of this treaty will dismiss those concerns as myth, but I simply cannot support a treaty that threatens the right of parents to raise their children with the constant looming threat of State interference.

If this vote and this treaty were in fact about protecting the rights of Americans with disabilities, then I might have a different position and the debate today would take on a very different tone. But this treaty is ultimately not about protecting the rights of Americans with disabilities because this treaty simply has no enforcement mechanism to protect those rights, the rights of disabled Americans, including veterans, who might travel to countries such as China or Russia or Mali or any other country that might choose to adopt this treaty.

If the Senate desires to protect the rights of disabled Americans who travel abroad, then this Senate would do better to encourage other nations to model their own reforms, their own internal legal structures after the Americans with Disabilities Act which, 20 years after its passage, still sends a message that disabled Americans will always have fair access to housing, employment, and education in this Nation.

I have mentioned a few things the treaty does not do. Now I would like to mention a few things the treaty does do that causes me some concern. First, article 34 establishes a committee, a committee on the rights of persons with disabilities. This committee will establish its own rules of procedure, and parties to the treaty are required to submit reports to the committee every 4 years.

In general, U.N. human rights treaty committees have made demands of state parties that fall well outside of

the legal, social, economic, and cultural traditions and norms of state parties. Sometimes their recommendations also fall far afield from the stated topics of concern within the individual treaties. For example, the U.N. Convention on the Elimination of Discrimination Against Women, or CEDAW, as it is sometimes known, included a recommendation that China decriminalize prostitution.

The U.N. Committee on Racial Discrimination went to great lengths to scold the United States on its detention policy at Guantanamo Bay. These recommendations often fall well beyond or are even in direct conflict with the treaty's goals.

Article 7 of this treaty provides a ``best interests of the child'' standard stating:

In all actions concerning children with disabilities, the

best interests of the child shall be a primary consideration.

We all want to support the best interests of the child, every child. But I and many of my constituents, including those who homeschool their children or send their children to private or religious schools, have doubts that a foreign, U.N. body, a committee operating out of Geneva, Switzerland, should decide what is in the interests of the child at home with his or her parents in Utah or in any other State in our great Union.

Article 4 of this treaty obligates the United States to recognize economic, social, and cultural entitlements as rights under domestic U.S. law. The Senate, in my opinion, has not adequately investigated how this standard will affect domestic U.S. Federal and State law. We have had one hearing on this issue that included both proponents and opponents of the treaty but did not substantively address my concerns about this standard, about this significant addition to what would become the law of the land of the United States of America.

For these and other reasons I must oppose the U.N. Convention on the Rights of Persons with Disabilities, and I encourage my colleagues to do the same.

Whatever the United States ratifies----

No. I do not agree with that.

First of all, whenever we ratify a treaty it becomes the law of the land under article VI of the U.S. Constitution. Secondly, whenever a body of law, whether embodied in U.N. convention or otherwise, becomes part of the corpus of customary international law, that often makes its way into U.S. judicial opinions. Is it direct? No. Does it directly undo any statute? No. But that doesn't mean it has no effect. If it had no effect we would not be here debating it today. It is the type of effect we worry about.

The Senator and I see things differently as far as what type of effect it might have. But that is not to say it has no effect. We should not be ratifying a treaty that we think might offset U.S. law as it exists now. We believe this could have that impact. Exactly where that is going to come up, I cannot prove to the Senator where that is going to happen. But it does have some impact, and when we ratify a treaty we make it the law of the land.

Yes, of course. It doesn't become the law of the land just because it is in the treaty. But it often does. Its entry into customary international law can become facilitated by the U.S. ratification of it.

If my distinguished colleague and friend, the senior Senator from Massachusetts is correct, that this would have no impact on our law, if in fact it does nothing, then why would we make it part of the U.S. law? Why would we make it part of the law by ratifying it and making it the law of the land under article VI of the Constitution?

What table is it at which we have no seat because we have not ratified this treaty? What is it that we cannot do by having the most aggressive laws, the most robust laws protecting Americans with disabilities that we somehow achieve simply because we ratify this? If, in fact, that does nothing more than embrace that set of laws that we have actually passed, and if, in fact, as my friend says, this does nothing, then why do we ratify it?

Mr. President, I move to reconsider the vote.

I wish to speak for 5 minutes regarding the Feinstein-Lee amendment.

Mr. President, I appreciate the opportunity to speak regarding amendment No. 3018, the Feinstein-Lee amendment.

It has come to my attention that some opponents of the Feinstein-Lee amendment have made an argument that habeas corpus is sufficient to protect the rights of Americans apprehended on American soil and detained by the United States Government. This is nothing more than another way of suggesting that the government should be able to detain some Americans indefinitely without charge or trial. I disagree and believe that our constitutional traditions demand more than this-- significantly more.

The fifth amendment of our Constitution provides that ``No person . . . shall be . . . deprived of life, liberty, or property without due process of law.''

As Supreme Court Justice Antonin Scalia has written:

The gist of the Due Process Clause, as understood at the

founding and since, was to force the government to follow . .

. common-law procedures traditionally deemed necessary before

depriving a person of life, liberty, or property.

This right of American persons to due process of law is foundational to the very idea of individual liberty from unwarranted government intrusion.

I have worked with Senator Feinstein and other colleagues on both sides of the aisle to craft an amendment originally entitled the Due Process Guarantee Act to ensure that this basic constitutional right is indeed protected. I believe even with the serious national security threats we now face, America must hold fast to our most fundamental constitutional rights and liberties.

The U.S. Government should not be authorized to detain Americans indefinitely without charge and without trial. As Justice Scalia explained, the proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal.

I believe it is clear that the Founders of our Constitution were acutely aware of this critical tradeoff--the tradeoff

we still face today--between safety on the one hand and freedom on the other. On this very point, Alexander Hamilton was prescient. He wrote:

Safety from external danger is the most powerful director

of national conduct. Even the ardent love of liberty will,

after a time, give way to its dictates. The violent

destruction of life and property incident to war; the

continual effort and alarm attendant on a state of continual

danger, will compel nations the most attached to liberty, to

resort for repose and security to institutions which have a

tendency to destroy their civil and their political rights.

To be more safe they, at length, become willing to run the

risk of being less free.

Our Nation's Founders warned us about the great danger of sacrificing our most basic liberties in the pursuit of security--security at all costs. They provided us with a Constitution framed to prevent precisely such a tragic outcome.

I urge my colleagues to vote in favor of the Feinstein-Lee amendment and against the mistaken idea that the government may detain American persons indefinitely without charge and without trial.

Thank you, Mr. President. I yield back the remainder of my time to Senator Feinstein.

Mr. President, Today I wish to pay tribute to my professor and my

friend Richard Wilkins who passed away on Monday. Richard was truly a renaissance man, a law professor turned international advocate who also enjoyed unique local notoriety for his 27 consecutive performances as Ebenezer Scrooge in the Hale Center Theater's annual production of A Christmas Carol.

In the canon of literary classics, Charles Dicken's Scrooge is a beloved but unlikely hero, a selfish miser turned community benefactor. Wilkins embraced the dynamic nature of Scrooge's transformation and saw the role as an opportunity to convey much deeper lessons regarding the values of family and personal improvement. The Hale Center opened in 1985 and cast then 32-year-old Richard as Scrooge, certainly unaware that they had found their star for the next 27 consecutive seasons.

In 2005, Her Highness Sheikha Moza bint Nasser, the queen of Qatar asked him to move to Qatar to lead an institute for family studies. He would not agree until she assured him he would be able to return to the Hale Center every Christmas season to take up his top hat and bathrobe to reprise his role as Scrooge. Richard loved delivering Scrooge's famous line ``I will honor Christmas in my heart, and try to keep it all the year. I will live in the past, the present, and the future.'' Those close to Richard undoubtedly agree that he took these words to heart, carrying the spirit of Christmas into all other aspects of his life.

Richard graduated from my alma mater Brigham Young University Law School in 1979. He served as an assistant to my father, Solicitor General Rex Lee and argued several cases before the United States Supreme Court. Just 5 years after his graduation from BYU Law School he returned to teach constitutional law and civil procedure. He was a gifted public speaker, well known for his engaging lectures in the classroom and scholarly insights on the law. He had a unique intelligence that propelled him to prominence in the legal world and established him as a powerful voice the international community.

Richards's greatest contribution to the world came as an international advocate for family values. His first exposure to the family values movement came in an academic effort to change the language the United Nations used to portray issues relating to the family. After engaging with international leaders on critical family values issues his academic curiosity turned into a personal mission. He traveled around the world presenting papers on the importance of traditional marriage, the need to protect children and the sanctity of life and other family centered topics. He served as the managing director of the Doha International Institute for Family Studies and Development for the nation of Qatar and founded the World Family Policy Center at BYU. His leadership as chairman of the Defend Marriage Coalition placed him at the forefront of Utah's debate over traditional marriage. Richard's fiery passion for causes related to traditional family values was matched by his warmth and love for those around him. He could disagree with individuals and groups but was never disagreeable.

Richard Wilkins' life serves as an illustration of the renowned biblical charge ``Let your light so shine before men, that they may see your good works, and glorify your Father which is in heaven.'' He was a man blessed with tremendous talents and he used those talents to bless all those with whom he came in contact, in his own community and around the world. Richard's global vision and reach brought the power of family values to the forefront of international discourse, particularly in developing nations striving to solidify a cultural identity. Sharon and I would like to express our deepest condolences to Richard's wife Melany, their four children Brooke, Brinton, Claire and Rex and their eight grandchildren.

Mr. President, I rise today to speak in favor of the Feinstein-Lee amendment to the National Defense Authorization Act. At the outset, I wish to note this amendment is the product of bipartisan discussion and collaboration on an issue that is important to all Americans. I am pleased to have been a part of that process.

Senator Feinstein and I have worked closely together over the course of the past year to craft what we believe represents a very prudent course in protecting both our Nation and our liberties at the same time. Security is important. And precisely because it is important it must not be acquired at the expense of our individual liberty. It may well be said that government's most important basic responsibility is to protect the liberties of its citizens. Our Nation has fought wars on American soil and around the world in defense of individual liberty, and we must not sacrifice this most fundamental right in pursuit of greater security, especially when we can achieve security without compromising liberty.

The Feinstein-Lee amendment does precisely that. It protects liberty by ensuring that no American will be deprived of due process. The fifth amendment states:

No person . . . shall be deprived of life, liberty or

property, without due process of law.

The sixth amendment, likewise, guarantees that individuals accused of a crime will have access to an attorney and access to a trial by a jury consisting of that person's peers. Our amendment protects those rights and it provides the following:

An authorization to use military force, a declaration of

war, or any similar authority shall not authorize detention

without charge or trial of a citizen or lawful permanent

resident of the United States apprehended in the United

States.

It is important to note the Supreme Court has never specifically held that an authorization for the use of military force somehow authorizes the indefinite detention of a U.S. citizen or a U.S. person apprehended within the United States, and I don't think we should break new ground here. I don't think we should start opening that precedent and suggest that is somehow acceptable. The Constitution does, in fact, require nothing less than traditional due process for all Americans apprehended within the United States.

As Supreme Court Justice Anthony Scalia has written:

The gist of the Due Process Clause, as understood at the

founding and since, was to force the government to follow . .

. common-law procedures traditionally deemed necessary before

depriving a person of life, liberty, or property. When a

citizen was deprived of liberty because of alleged criminal

conduct, those procedures typically required committal by a

magistrate followed by indictment and trial.

I understand and respect, of course, the fact that we live in perilous times. We, unfortunately, as Americans have enemies not only around the world but even within our own borders. This is unfortunate. This creates challenging times for us. I hope and pray every day we will be successful in fending off those who would harm us, those who hate our way of life and everything about us and will do everything in their power to destroy us and our liberty. But that does not--it cannot, it will not--mean we, as Americans, should surrender our basic instinct to be free.

We must stand behind our 225-year-old founding document as it has been amended to ensure that our liberty isn't taken away from us to give us a path toward providing for our security without jeopardizing the freedom our American citizens cherish so much and have fought so hard and for so long to protect.

Granting the U.S. Government the power to deprive its own citizens of life, liberty, or property without full due process of law goes against the very nature of our Nation's great constitutional values. This amendment--the Feinstein-Lee amendment--protects those values. I urge my colleagues to support it.

Mr. President, I yield the floor.

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

Mr. President, I stand today to explain my ``no'' vote on cloture this morning in connection with the sportsmen's bill, S. 3525.

This is a large bill. It is made up of a number of legislative proposals that have been put together. In many settings this is a good way to legislate. In many respects it is, and we utilize this procedure on an almost constant basis in order to make the laws of our country. Like many other pieces of legislation that come before us that have been formed in this fashion, this is a bill as to which I can say I support it in part and I don't support it in part. There are parts of it I like a lot, and there are other parts I like a lot less. That is exactly why we have an amendment process. True debate in this country, especially in this body, presupposes and depends for its existence on the availability of an open amendment process.

You see, when people go into a store, they can decide which items they want to buy. They can decide to buy bread and milk and eggs or any combination of the three or other products they might want. It would be disturbing if they got to the grocery store counter and were told they may not buy bread and milk and eggs unless they also buy a bucket of nails, a half a ton of iron ore, a book about cowboy poetry, and a Barry Manilow album. Sometimes that is what we are told when we get to the table to vote in the Senate. In order to get some things we want, we have to buy a whole bunch of other things we might not want.

That is a reality of the legislative process. It is a reality that goes along with compromise, and it is one we live with every day. But, again, this is why it is important for us to have an amendment process, so that we can at least debate the relevant merits of each piece of legislation. More importantly, so that we might figure out how to take a good piece of legislation and make it better or how to take a bad piece of legislation and make it good.

In this circumstance, the majority leader has used a procedure known as filling the tree. He filled the tree, which means, in effect, that we can't offer amendments. We can't offer any amendments other than those few the majority leader decided could be offered. This shuts down debate. There can be no significant debate beyond that which will lead to a vote once the tree has been filled. This is a problem.

Now, Republicans in this body, myself included, voted recently to proceed to this bill believing in good faith there would be an opportunity to amend this bill. The bill is important to me in many respects. One of the things that has gotten my attention is that it addresses a number of issues related to Federal public lands. It addresses a number of other issues related to wildlife conservation and wildlife management and other issues that are important to hunters and other outdoor enthusiasts across the country and in my State in particular.

One of the reasons this bill is especially important to me is that I represent the great State of Utah--a State that has a lot of Federal land. In fact, two-thirds of the land in my State is owned by the Federal Government. For that and other reasons I would like the opportunity to address this piece of legislation by offering amendments--amendments that would make a good bill better.

But this process--a process whereby the majority leader rules this body by dictate--is not good for the Senate. We have come to expect the Senate will be a great deliberative body. In fact, the Senate has long prided itself on being the world's greatest deliberative legislative body.

There are a number of realities about the Senate that make this possible--far more possible than it might be in the House of Representatives. Here in the Senate we have only 100 Members. Just down the hall, in the House of Representatives, they have 435 Members. In that body it is not always possible to have an open amendment process. In this body it is assumed this is the usual order. This is how we are supposed to operate, to have an opportunity for Members to offer and debate and discuss amendments in advance of voting for the bill at the end of the day. Yet we have not had such an opportunity in this case because the leader filled the tree.

This is significant, and I want to emphasize this point. It is true, of course, that majority leaders from both political parties have utilized this procedure from time to time, for one reason or another-- perhaps out of a professed need to expedite the legislative process in certain instances. But this majority leader has utilized this procedure a lot more than others. In fact, he has utilized it, by my count, a total of 67 times, more than any other majority leader in history. Why, I ask, has he done this? Why did he do it in this circumstance? Why has he done it in so many other circumstances throughout this Congress and throughout his service as majority leader?

Is it because the Senate has demonstrated an inability to debate and discuss bills and amendments to bills in a reasonable, responsible manner? I don't think so. Let's point to a couple of examples. For example, the National Defense Authorization Act, which this body passed toward the end of last year--the NDAA of 2011. It passed out of this body overwhelmingly, notwithstanding the fact there were a number of amendments introduced. I believe there were dozens of amendments that were introduced, debated, discussed, and ultimately voted upon.

Another example involved the farm bill. It was passed by this body earlier this year. If I am not mistaken, we had over 70 amendments to that bill. I appreciated the majority leader's willingness in that circumstance to allow us to have a pretty open, robust debate and an open amendment process. We still passed the bill, even though we had to conduct a lot of debate and have a lot of discussion and have a lot of votes. But this, you see, is what makes this the greatest deliberative body in the world.

This is what separates us from other legislative bodies around the country and throughout this planet. So it is not the case the Senate simply isn't responsible enough to be able to handle something such as an open amendment process because it has demonstrated its ability to do so time and time and time again.

Now, let's talk about some of the things I like in this bill. I support the fact that this bill would increase access to public lands and remove some burdensome regulations on some activities occurring on those lands. On the other hand, I am not as wild about the fact that this bill devotes $6.5 million on neotropical migratory birds on a program that would require 75 percent of those funds to be spent outside the United States. I know in the big picture of things this is a very small figure in terms of our total national budget. Nevertheless, this is a lot of money. It is a lot of money to hard- working Americans who are paying their taxes in order to fund programs like this. We ought at least to have an opportunity to debate amendments so that Americans can feel as if their money is being spent in the United States for causes that are important to Americans and not on birds outside the United States.

Other Senators have other differences with the bill, other concerns. I agree with some of those concerns; I disagree with others. Each of them should have an opportunity to have those concerns aired, to have them debated in connection with amendments they might choose to introduce. We should be debating all of them. Instead, in effect, we are debating none of them.

That kind of process is especially important in this circumstance because, you see, this bill, as I understand it, has never gone through committee. Normally, in committee we have an opportunity to put a bill through the markup process, to make amendments in committee. This didn't go there. All the more reason we should have an open amendment process right here.

So I have introduced several amendments, and I will refer to just a few of them. One of them would involve a proposal to not spend money we don't have in order to support the conservation of multinational species. It will cost $150 million over 5 years. In other words, it is one thing to spend money on habitat preservation and species rehabilitation for species that actually exist in the United States. It is another thing to spend a lot of money on species outside the United States, on creatures that have never entered our borders and never will. That is something I think Americans are concerned about, and it is something I think we ought to have a chance to debate as long as we are debating and voting on this legislation.

I have another piece of legislation that would require State legislative approval for any new Federal land designations. As I said a few minutes ago, with the Federal Government owning two-thirds of the land in my State, I am especially concerned about the possibility of, for example, the President deciding to just designate a new national monument within my State. This happened a few years ago when President Clinton designated the Grand Staircase Escalante National Monument inside Utah. He didn't go to Utah to announce it, he went to Arizona to announce it.

This is beautiful land. It is beautiful territory. But all of this was accomplished by the stroke of a pen from one Chief Executive without any opportunity or input from Utah, from its 3 million residents, from its elected officials. I think anytime the Federal Government takes this kind of action--action that will have a profound impact on the State, on its sovereign rights, on its ability to raise revenue, on its ability to encourage and promote economic activity within its boundaries--there ought to be input and approval from the State legislature. I have an amendment that would address this concern.

I have another amendment that would offer certain Federal lands for disposal by a competitive sale process. We have an enormous amount of land in this country. Some of it is being put to good use; other land is being set aside because of its wilderness characteristics; still other land is just sitting there not doing anything. I think some of that land could be sold and some of that money could be used to fund our programs--programs that are cash strapped, along with everything else in this country right now.

These and other amendments need to receive consideration. I am not saying every one of them has to pass in order for this legislation to proceed, but every one of them ought to be debated, and the American people should have an opportunity to have their input through their own elected Senators.

I would deeply regret it if this were somehow an indication that our majority leader intends to operate the Senate this way, not only throughout the duration of this Congress but into the next Congress as well. I want to be clear that I have great respect and admiration for our majority leader. I have known him for most of my life--since I was 11 years old, in fact. I consider him a friend.

I ask him--I implore him--as my friend to reconsider this practice of filling the tree and thereby forestalling the introduction of amendments. We need an open amendment process. Our status as the world's greatest deliberative legislative body requires nothing less.

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