Floor Statements

Mr. President, I rise today to support the comments from the distinguished majority leader of last Friday with respect to the asbestos legislation. This is an absolutely vital issue for this country's civil justice system and, most importantly, to our economy.

If you want to have jobs, then let us get this asbestos reform bill through and we will get hundreds of thousands, if not millions, of jobs back, and perhaps the 70 large companies which have gone into bankruptcy will be able to

resurrect themselves and be able to employ more people.

We now have the opportunity with S. 1125, the Fairness In Asbestos Injury Resolution Act, to correct what has become a gross injustice against asbestos victims and the defendants who are relentlessly hauled into court despite having never manufactured or ever sold a shred of asbestos fiber.

It has been a long road for this legislation so far. But I concur with Senator Frist, our distinguished majority leader, that we are finally in a position where we can enact this legislation.

We went through a grueling markup of this bill last year, and since then have engaged in focused discussions over remaining differences under the stewardship of my friend from Pennsylvania, Senator Specter, and Judge Becker of the third circuit court of appeals. The stakeholders and Members involved in these discussions all agree that this process has proved to be quite successful, not only in clarifying areas of disagreement but in proposing workable solutions to these areas. As a result, there now remains a mere handful of issues left to consider. But given the timeframe set forth by the leader last Friday, I believe more needs to be done to help bridge the gap on the remaining issues. Therefore, I propose that we get the primary stakeholders and interested Members together for a 2-day-long negotiating session sometime in mid- to late-March with this type of focus on the last handful of these issues. I believe we can resolve the remaining differences in this bill. There is nothing we can't solve, if we will work together. This issue is too important, and we are too close not to give this one last effort through an extended 2-day-long meeting. I know Judge Becker and the stakeholders and the key Republican Members have all expressed their desire to participate in this 2-day meeting. I hope my Democratic colleagues who have been working on this issue will join us in the final push toward reaching consensus.

Let me give some background for those who have not been as steeped in this legislation over the past year or so. For more than 20 years, compensation to legitimate victims of asbestos exposure has been unacceptably diminished and delayed. It has become quite evident to the committee that tens of thousands of true asbestos victims are faced with agonizing pain and suffering with uncertain prospects of a meaningful recovery in our existing tort system. These victims are left with little to nothing because precious resources are being diverted to unimpaired plaintiffs and a handful of creative trial lawyers who are looking to make a quick buck.

I am a member of the American Trial Lawyers Association, having been a trial lawyer in my former non-Senate life, since we Mormons believe in a premortal existence. I have to say that my fellow ATLA members are embarrassed by this small cadre of personal injury lawyers who are thinking only of themselves and the huge fees they make, with the approximately 50 to 60 percent of the moneys that go to attorneys. They are embarrassed by it. They won't say that because they don't want to cut up their fellow personal injury lawyers. But that is what is going on here.

In up to 90 percent of the cases that have been filed, the person has never had a sick day in his life with regard to asbestos. In most of those cases, they have been sent to doctors who will find injury no matter what. It borders on fraud and in some cases it is fraudulent. It is wrecking the country. Seventy major companies are now in bankruptcy, and there are over 8,400 or more, going up to 15,000, that possibly will be thrown into bankruptcy that never had anything to do with asbestos or made anybody ill from asbestos.

At the same time, scores of companies with almost no connection to the problem have had to file for bankruptcy, as I have said, and hundreds of others live under the constant threat of insolvency from this litigation. What this translates into is lost jobs, depleted pensions, and weaker financial markets.

If my friends on the other side of the aisle want to do something about jobs, let us get serious about asbestos reform. Let us get serious about doing what is right for those who are truly ill and who won't get very much at all. Those who were employed by 70 companies are getting 5 cents on the dollar. We take care of them with this trust fund.

We have heard the statistics but they bear repeating. The RAND Institute for Civil Justice tells us, to date, 70 companies have been forced into bankruptcy--at least 3 with operations in my home State of Utah.

The number of claims continues to rise as does the number of companies pulled into the web of this abusive litigation, often with little, if any, culpability. More than 600,000 people have filed claims, and more than 8,400 companies have been named as defendants in asbestos litigation.

This has become such a gravy train for some abusive personal injury lawyers that over 2,400 additional companies were named in the last year alone. RAND, this great research institution, also notes in its bipartisan research that about ``two-thirds of the claims are now filed by the unimpaired, while in the past they were filed only by the manifestly ill.''

That is a low number. It is really up to 90 percent. But let us take their number. Two-thirds of them are filed by people who really are not impaired.

Former Attorney General Griffin Bell, amongst many others, has denounced this type of ``jackpot justice.''

To address this national problem, I introduced a bipartisan bill with my friends, Senators Ben Nelson, Mike DeWine, Zell Miller, George Voinovich, George Allen, Saxby Chambliss, and Chuck Hagel. This bill creates a trust fund which provides expedited no-fault compensation to victims while reducing the wasteful transaction costs. Attorney's fees and transactions costs have been as high as 60 percent of the amounts recovered.

After weeks of marking up the bill, we passed this legislation favorably from the committee with bipartisan support last July. No one can accuse us of being unwilling to compromise. When I look at where our bill started--and it was a good start--and where it is now, our willingness to compromise is abundantly clear.

Let me show you this chart. In total, we have made 53 changes to this bill to accommodate concerns raised by our friends on the other side, the Democrats.

Let me review a brief history of these changes. In May, we circulated a bipartisan draft measure, and my staff met then with Democratic staff to listen to their concerns. As a result of these discussions, we incorporated many of their requests even before introduction.

We then embarked on several weeks of markups that saw dozens of Democratic-initiated amendments adopted into this legislation. I didn't agree with all of these amendments, but it can't be said that there hasn't been strong participation with Democrats on this bill.

By the way, I met for a couple of hours with the head of the AFL-CIO to explain this bill to him. I know deep in my soul that he knows I am doing everything in my power to do what is right. I know he knows that we have done what is right. I respect and appreciate the fact that he sat down with me and talked with me about it.

This chart behind me summarizes some of the major changes we made at the behest of the Democrats.

Raising the level of mandatory contributions to well over $100 billion; 111 different changes to increase the value of awards to victims; 22 changes to make it easier for asbestos victims to be eligible for compensation; a historic, bipartisan agreement on eligibility criteria where the unions and everyone came together; reimbursement for medical monitoring--now they will pay for medical monitoring of people who are not sick and especially those who are; five additional provisions to guarantee payment of mandatory contributions; relief for asbestos victims in Libby, MT, where asbestos was mined; a Federal ban on asbestos and ``bad actor'' protections.

Look at this chart. ``To build bipartisan support, more than 53 changes to S. 1125 have already been made at the urging of the Democrats. These occurred prior to the bill's introduction, during negotiations between introduction and committee consideration, and throughout the four committee markups devoted to the legislation.''

I ask unanimous consent all of these changes be printed in the Record.

That chart is amazing. I don't agree with all those changes, but we made them to accommodate our friends on the other side. Just look at all these changes. No one can tell us we are not doing everything we can to make this bill a consensus bill and to be fair to everybody.

We know there are a lot of people who will be compensated under this bill who have never suffered a bit from asbestos, but we have given the benefit of the doubt. Many of them are union workers who have smoked all their lives and got cancer from smoking but have had something to do with asbestos at one time or another in their career but probably have shown no feasible asbestos.

Literally thousands and thousands, hundreds of thousands, will be compensated. There comes a point where you have to say, Let's do what is right here. Let's not just keep loading this bill up so you can beat your breast and claim you get more money, more blood out of these companies.

Moreover, even though our original claim values would have on average provided more money to legitimate claimants, we increased the values even more and we removed most collateral source offsets to ensure more of the award goes directly to the claimant. That means even though they received moneys, we removed those as offsets.

These changes listed on the chart behind me do not even include other changes we have offered since the bill was reported out of committee. Through the leadership of the majority leader, we got contributors to add an additional $6 billion in overall funding along with significant increases in claims values in many categories. We started at $94 billion in mandatory funding because this amount would give more money to claimants on average than they received in the current tort system. Nonetheless, through the markup in the Frist financing agreement, we increased the fund to have the capacity to pay out $114 billion to claimants. It is not just money, either. The Frist financing deal adds more flexible borrowing authority as yet another safeguard for solvency. Senator

Frist has my cooperation and support in doing this.

Our willingness to resolve the Democratic concerns speaks for itself by virtue of where this bill stands today. I again thank Senators Frist and Specter for their willingness to help resolve some of the difficult issues on this legislation and, of course, the cosponsors as well.

Let me talk about the final issues. Even though we made all of these changes that show up here, I understand some want to make further changes, including streamlining the claims process even more. I have said I am willing to look at such proposals, but the time has come and the time is past to wrap up this process. It passed out of the committee last summer and we need to stop talking and do something. With all of this whining about jobs that all of us want to get in this country, this bill would do more to create jobs and solidify our economy than any other bill we can pass this year. This bill makes sense except for how costly it is, but even then we are willing to do that. This is why we need to continue working for the next several weeks on the issues and sit down in a 2-day meeting sometime in the last half of March to see if we can finally get agreement on all of the issues.

I thank Senator Specter and Judge Becker for their valuable assistance. I was not really happy because we had gone through so much and I had commitments from so many people if we got to $108 billion, this bill would go and they would support it. I got it to $108 billion--and I think they thought we could not do it--and they said we have to have more and more and more. We are giving them more, even.

I also appreciate the willingness of Senator Specter and Judge Becker to help finally resolve these issues in a 2-day session. My friends, Senators Leahy, Dodd, and Daschle, have been graciously willing to sit down with us at a staff level to narrow the differences and I am confident they will be willing to join in this 2-day meeting as well. We are willing to accommodate schedules to get full participation in this meeting within a reasonable fashion.

We simply cannot delay any longer. We need to ensure the truly sick get paid and paid in a timely manner. We need to provide stability to our economy by stemming the rampant litigation that resulted in a tidal wave of bankruptcies and stop endangering jobs and pensions through the current broken system. This crisis reaches far and wide and it hurts everyone.

What is happening with these bad acting personal injury lawyers who have been handling some of these cases, they forum-shop the cases into jurisdictions where juries go wild and judges support them and judges are in the pocket of the plaintiffs' lawyers. In one case, if I recall it correctly, five people, not one of whom experienced a sick day up to that time, got $125 million, while thousands and thousands of very sick people get nothing. That is wrong.

For anybody to keep supporting that process the way some have done is wrong. That is why I am here on the floor to challenge all of our colleagues to work together in good faith, put our differences aside and let's get this bill done in the best interests of our country and the best interests of jobs. If that is not done, I would not listen to one ``mouthing'' word from people on jobs because they are playing politics rather than doing the art of the doable, doing what needs to be done, what must be done in the interests of the sick people, the truly sick people and, I might add, many others who did not get their sickness from asbestos, but we give them the benefit of the doubt.

This bill really will work even though I have to admit it is very tough on the companies that have to come up with this $114 billion.

I yield the floor.

Mr. President, I am compelled to speak out against continuing this assault weapons ban proposed by Senator Feinstein. An assault weapon is a military firearm which can be fired either automatically or semiautomatically with the flip of a switch. In other words, a true assault weapon is a machine gun, which is a gun already regulated by Federal law.

The firearms covered by the so-called ``assault weapons'' laws are semiautomatic handguns, rifles, and shotguns. Some of these firearms are made to look like a military-style weapon but are mechanically indistinguishable from any true traditional-looking deer rifle.

According to the FBI, in 2001, nearly five times as many individuals were murdered at the hands of criminals wielding knives than were murdered by criminals using rifles. I might add, only a fraction of those rifles were the semiautomatic rifles that were banned by the so- called assault weapons ban. What I think is most interesting and telling about this statistic is that the proportion is nearly identical to what it was 10 years ago; that is, according to the FBI, in 1991, 3 years before the assault weapons ban passed, nearly five times as many murders were committed with knives than rifles--exactly the same proportion as exists today.

The so-called assault weapons ban has succeeded in only one thing: law-abiding men and women, precisely because they abide by the law, were stripped of some of their second amendment rights. We cannot make the same mistake this body made 10 years ago.

The number of murders committed with different weapons has decreased in all areas, proportionally, over the last 10 years. The suggestion that the assault weapons ban is responsible for this decrease is as preposterous as it is misleading. There is no more evidence that the ban on semiautomatic weapons has had a positive impact on crime than there is that the setting Sun is responsible for street lights turning on.

The fact is, just as we feared 10 years ago, the only impact the ban on semiautomatic weapons has had has been on law-abiding citizens. I would like, therefore, to take a few minutes about how we ought to address gun violence. Instead of banning certain firearms for merely political reasons, we need to continue aggressively prosecuting criminals.

Rather than focusing on crafting and enacting more laws that erode law-abiding citizens' constitutionally protected rights, we ought to channel our efforts towards enforcing our current laws and punishing those who choose to abuse those rights and commit crimes with guns.

For example, President Bush has made a commitment to reduce gun crime by getting armed criminals off the streets through his initiative,

Project Safe Neighborhoods. In contrast to the 10-year assault weapons ban and its ineffectiveness in combating gun violence is the overwhelming success of Project Safe Neighborhoods. Project Safe Neighborhoods, announced by the President and the Attorney General in 2001, is a comprehensive strategy that brings together Federal, State, and local agencies to reduce violent crime in our communities.

I might add that we have had a 68-percent reduction in violent crime since that came into being. And I might also add that the only way to keep this under control is to get tough on those who abuse the right to have guns and who abuse the use of guns.

The President is on the right track. We do not need this particular amendment. I hope my colleagues will not accept it.

This ought to be our approach. Not simply saying all guns of a certain appearance are banned. We must continue to vigorously pursue those who abuse the right to own a firearm--not stripping away law- abiding individuals' rights to own and possess firearms. Especially when, other than their appearance, those firearms are no different than thousands of other firearms that are considered legitimate. In fact, in May of last year, I held a hearing for the purpose of determining the effectiveness of Project Safe Neighborhoods. The results are in, and they are impressive.

The number of Federal firearms prosecutions has increased significantly every year under Project Safe Neighborhoods. Specifically, prosecutions have increased 68 percent in the past 3 years. In 2003, the Department of Justice filed over 10,500 Federal firearms cases--the highest number ever recorded by the Department.

Federal offenders are being sentenced to significant jail time. In 2003, approximately 72 percent of offenders were sentenced to prison terms greater than 3 years.

The per capita number of violent crimes involving firearms has dropped 14 percent since the start of the Bush administration. This has translated into an average of over 32,000 fewer gun crimes annually in each of the first 2 years of the Bush administration.

There were nearly 130,000 fewer victims of gun crime in 2001-2002 than in 1999-2000.

The President has been and Congress should be making America's neighborhoods safer by vigorously enforcing gun laws and preventing and deterring gun crime. Arbitrarily taking guns away from law-abiding citizens does not assist the President in making the neighborhoods of America safer.

Inthe course of the debate over gun liability my colleague, Senator Durbin, spoke of Korean-American victims in Illinois. Let me tell you about Korean-American victims in California.

Many of the guns which current assault weapons bans are targeting-- including the Federal ban enacted in 1994--are the very guns with which the Korean-American merchants used to defend themselves during the 1992 Los Angeles riots. For those of you who may not recall the Los Angeles Riots, let me tell you about this tragedy. On April 29, 1992, African Americans, upset over the verdict in the Rodney King case, took to the streets of Korea Town in downtown Los Angeles. Although these innocent Korean-Americans had nothing to do with the police brutality inflicted upon Rodney King, their businesses were singled out. Calls for help came in to 911 by the hundreds. but citizens were informed that no assistance was available. Order had broken down. People were on their own.

As a result of one night of violence, 55 people died, over 2,300 were injured and one billion dollars of property damage was sustained according to the Christian Science Monitor. Gunfire killed 35 people. Six died in arson fires. Attackers used sticks or boards to kill two people. Two other were stabbed to death. Six died in car accidents, two in hit-and-runs, and one person was strangled. The violence crossed racial and ethnic lines.

Seventy-five percent of the businesses destroyed belonged to Korean Americans. Those Korean-American merchants who possessed assault weapons and used them to defend themselves, would likely have a different story about gun control laws and how they help victims. The Korean-American merchants would agree that when one is facing mob violence and the police are unable to respond, one may need a gun that shoots more than just six bullets or has a menacing appearance. A ban on large capacity semiautomatic firearms will only harm one's ability to defend himself and his family rather than deter crime.

While most American spend little time thinking of what the police can do to protect them during times of domestic tranquility, there is no guarantee that this will always be the case. Citizens, like the police, have a right, and some would say a duty, to defend themselves and their families against deadly threats.

The assault weapons ban is a measure entirely devoid of rational thought. It is not based upon compelling factual data or civil necessity, but of political strategy and the machinations of over- reactive, quick-fix ideologues. This amendment addresses neither the problem nor the solution, when it comes to gun crime. And because the amendment serves only the political agenda of the few and not the convictions and rights of the many, I strongly oppose the amendment.

Amendment No. 2636

Mr. President, another issue I would like to talk about is the amendment sponsored by my colleague, Senator McCain, the so-called gun show loophole.

Based on some of the arguments I hear made by Senator McCain and his cosponsors, it is apparent there are some misunderstandings about what gun shows are, how they operate, and existing applicable laws.

Gun shows are large events that are open to the public. These events attract a broad range of people. They include collectors, hunters, target shooters, police officers, and those who serve in the Armed Forces.

Gun shows are an opportunity for Americans--fathers and mothers and their sons and daughters--to pass along a family tradition. Exhibitors at these gun shows include gun dealers who are all federally licensed, as well as gun collectors, hunting guides, target shooting clubs, and vendors of books, clothing, hunting accessories, and so on.

What Federal laws currently apply to gun shows? Contrary to popular opinion, there are no special exemptions for gun shows. Anyone who engages in the business of selling firearms must be licensed, regardless of where he or she does business.

More specifically, there is simply no such thing as an unlicensed dealer. In fact, dealing in guns without a license is a Federal felony, punishable by up to 5 years in prison and a substantial fine. Congress authorized licensed firearms dealers to conduct business at gun shows in 1986 under the Firearms Owner Protection Act.

So what happens when these dealers sell guns at gun shows? Have these dealers applied for and received Federal firearms licenses from the Bureau of Alcohol, Tobacco, Firearms, and Explosives? The answer is a simple yes.

Dealers are required by Federal law to conduct a criminal background check. They must conduct a check through the national instant check system at gun shows just as they would have had to do in any other location. So if we adopt this amendment, who will it affect? The answer is not surprisingly, but unfortunately ignored by the proponents of this amendment. The answer is it would affect law-abiding citizens who are out to hurt no one.

It would drive out and shut down the gun collectors who buy and trade some of their guns at gun shows. They represent a fraction of the exhibitors at gun shows.

Remember, gun collectors are not gun dealers and may not engage in the business of dealing firearms without a firearms license.

I would like to touch on an issue that many Utahns and I find particularly troublesome. If we adopt this amendment, it will effectively create gun owner registration.

I want to make sure my colleagues understand how this legislation, if it became law, would work. Under the amendment, special firearms event operators would have to verify the identity of all participating vendors and have those vendors sign a ledger saying they were there selling firearms, whether or not any of the vendors actually sold a firearm. This requirement is

a modest improvement of the original bill, which, as introduced, would have required vendors to submit to the Attorney General the names of all vendors slated to participate in the Gun Show. Regardless of the slight change, it is clear what the sponsors of this amendment intend. That is, to track and register law abiding citizens who merely want to exercise their constitutionally protected Second Amendment rights.

So suppose a private, law-abiding citizen enters a gun show hoping to sale or trade a firearm, but that person does not make a deal and leaves with his own firearm. This person, this private law-abiding citizen, would be on file and in a ledger forever as a special firearms event vendor, copies of the ledgers to be used for any future purpose.

This amendment also purports to provide for instant background checks. Now, anyone who knows anything about the national instant criminal check system knows that they do not turn around such inquiries in 24 hours. In fact, currently, the national instant criminal check system has 3 days to turn around a request for a background check.

The amendment before us provides that the wait may be reduced to 24 hours if a State applies for the privilege of improving its records. With a 3-business-day period still allowed to check out-of-State records, a few large States will drag down the whole scheme for all transfers across the Nation.

Again, what is the practical effect? Gun collectors who occasionally attend gun shows for a day or two on a weekend will be shut down because they will not be able to have the national instant criminal check system run the required check on a prospective buyer and make such a transaction in that day.

There are two more important points that I think many of the Members in this body may have overlooked. First, in November of 2001, the Bureau of Justice Statistics released a report on imprisoned felons and where they obtained their firearms. Fewer than 1 percent obtained the guns they used to commit their crimes at gun shows. Of that 1 percent, only a fraction obtained weapons through collectors.

What does this tell us? The idea that shutting down collectors at gun shows will affect crime in any appreciable way is dramatically overstated, if not preposterous.

Criminals are getting their guns on the street or from the residential burglaries, but not from heavily police-attended gun shows.

Second, and I want my colleagues to hear this: Law enforcement and Federal prosecutors continue to use gun shows to weed out corrupt gun dealers. In fact, Federal prosecutors stress to me that passing this amendment would serve only to drive those few who would unlawfully deal in firearms without a license into the black market, into the back alleyways, and into the hidden areas of our communities, making it nearly impossible to locate and prosecute such criminals.

So not only will this amendment fail to address the true nature of the problem, but it will punish law-abiding collectors who choose to publicly trade their firearms.

I submit that adopting this politically driven, knee-jerk amendment, which only injects partisanship into a bill that otherwise enjoys broad bipartisan support, will have two effects: One, it will shut down lawful gun collectors who attend and trade guns at gun shows; and two, if it has any effect on crime, it will affect it negatively by driving the few dealers who are unlawful into the black market where it is exorbitantly more difficult for them to be located and prosecuted.

I urge my colleagues on other side of the aisle to re-examine their analysis, put politics aside, and reject this amendment.

It will serve no purpose in pursuing our common goal of fighting crime, but instead will only hurt innocent law-abiding citizens.

Let us not be distracted from the issue at hand.

We have legislation before us that enjoys broad bipartisan support and that deserves our attention. That should be the focus of our efforts, not passage of this unwise amendment.

I yield the floor.

Mr. President, I urge my colleagues to vote in favor of the Frist-Craig amendment relating to armor piercing ammunition. The Frist-Craig amendment restates existing law which prohibits the manufacture, import, or sale of armor piercing ammunition except for use by the United States Government or for export. Additionally, the Frist-Craig amendment requires the Department of Justice to study and report to Congress whether a uniform standard for the testing of projectiles against body armor is feasible.

The Department would include in its study the standards which Senator Kennedy seeks in his proposed amendment. Ideally, this report will confirm or put to rest the issue of whether the amendment proposed by Senator Kennedy would have the effect of banning standard hunting information. This is a sensible approach to an issue which has so many legitimate hunters and other gun owners concerned. Finally, and importantly, the Frist-Craig amendment does something about Senator Kennedy's concerns in a way that his amendment does not. Specifically, the Frist-Craig amendment imposes serious penalties on those who use and carry armor piercing ammunition during and in relation to crimes of violence and drug trafficking crimes.

The Frist-Craig amendment sends a clear message that those criminals who use this type of ammunition in their crimes that they will face significant punishment. Additionally, if the criminals murder someone with armor piercing ammunition in the course of a drug trafficking crime or crime of violence, they will face the full range of punishment, including the death penalty.

The Frist-Craig amendment would therefore punish those who use armor piercing ammunition to carry out illegal activities while permitting those who intend to legitimately use ammunition with common and conventional hunting or sporting rifles to do so.

It is through the Frist-Craig amendment that we would preserve what is the classic first deer rifle given to millions of Americans; that is, the 30-30 Winchester deer rifle. Finally, it is important to note that the Fraternal Order of Police, representing over 311,000 police officers nationwide, supports the Frist-Craig amendment.

A difficulty many have with Senator Kennedy's amendment is the definition of body armor, which is directed at the minimum standard for protection of law enforcement officers. According to the Department of Justice, the minimum standard is level 1 body armor which is designed to resist bullets fired from various low caliber handguns, such as .22s or .380s. Therefore, under this amendment common handgun ammunition for other handguns, including .44 calibers and 9 mm, would be banned. Additionally, neither level 1 nor level 2 body armor is designed to prevent penetration by rifles. Therefore, to ban all ammunition that may penetrate level 1 body armor, or level 2 body armor for that matter, would in effect ban all rifle ammunition.

I am troubled by this issue because I remember the draft AFT report issued in 1997 by ATF's career personnel that concluded that there was no need for new legislation. Unfortunately, those in that administration's political positions whose agenda was to push gun control legislation reversed those findings.

Madam President, I ask my colleagues on the floor just to think this through. I have been watching this debate about the threat of Iraq, frankly, since the early 1990s. I have been privileged to serve in this body since 1977, which means I have been here long enough to see the evolving trends in terrorism, from the Iranian revolution to the perversion of the Islamic faith and advent of fundamentalism. I also have been here through all the stages of relations with Iraq since the rise of Saddam Hussein.

I recall the debate prior to the first gulf war. While certainly not absolutely partisan, that debate in 1990 was the last time we had a very partisan debate on foreign policy. Through the 1990s, while I had many disputes with the Clinton administration over various aspects of foreign policy, I seemed to recall that partisanship on the question of Iraq had diminished. In fact, the Iraq Liberation Act of 1998 was passed in this body unanimously and in the House overwhelmingly and was signed into law by President Clinton.

I think my colleagues would have to agree with this. I would like to ask my colleagues if they agree with the following assessment: Since the fall of 2002, the debate over Iraq policy has become more and more partisan and more and more bitter. While the authorization to use force was passed by a large majority--I believe it was 77 to 23--and with the support of many of my Democratic colleagues, including some not present today, the debate since then has been troubling to me.

You would think that Congress could maintain our proper role of oversight without descending into partisan attacks. You would think that with our military in the midst of a historic mission and over 500 American families grieving because their loved ones paid the ultimate sacrifice, that legitimate criticism could be expressed without partisan rancor or misleading rhetoric. You would think so.

One of the most troubling aspects of the criticism of our President and his policy was the suggestion, deceivingly made, that the threat of Saddam Hussein was not imminent. I believe these criticisms beginning last year deliberately tried to confuse the American public. The threat was not imminent, the critics said, implying the response to go to war was not required.

Yet I have reviewed most of the President's rhetoric, and I have concluded that he made numerous honest statements that declared that after the historic attacks of September 11, we would not be defining our response by outdated measures of imminence. I went back and read a key quote from the President's State of the Union Address in 2003 in which he declared to us, the American people, and to the world:

Some have said we must not act until the threat is

imminent. Since when have terrorists and tyrants announced

their intentions politely, putting us on notice before they

strike? If this threat is permitted to fully and suddenly

emerge, all actions, all words, and all recriminations would

come too late.

That is what he said, and it was right then, and it is right today. So will my colleagues recall this extremely clear statement? Do they think his words were casually stated? Give me a break.

I have given a lot of thought to the concept of imminence since September 11, and as we debated our response to Iraq, I recognized that the definition of ``imminence'' is necessary to support a doctrine of preemption. I wonder what our various Senators' views about this are since the definition of ``imminence'' is different in the 21st century than it was in the 19th or the 20th centuries.

During the debate over authorization of the use of force last year, I made the following points:

Osama bin Laden launched an attack that changed the way America sees the world. We had to recognize that the concept of imminence was not an abstract idea as we contemplated preemptive use of force. Preemption is not a new concept in international law, despite what many of the President's critics suggest. It is as old as Grotius, the founder of modern international law.

Contrary to critics' misinformed assertions, the U.S. has never foresworn the use of preemption, not since the U.N. charter and not under either Democratic or Republican administrations.

Preemption has always been conditioned on the idea of imminent threat. In the prenuclear era, we could see conventional armies amassing on a border and base imminence on that measure. But in the nuclear era, the idea of imminence grew quite a bit murkier.

Was it the fueling of an enemy ICBM? Was it the glare on the rocket as it left the launch pad? Was it the warheads' return through the atmosphere? Because we raised these questions, by the way, was the reason the U.S. rejected a ``no first use'' policy during the era of strategic competition with the Soviet Union. Was that the reason we did that? You bet your life.

Imminence becomes even murkier in an era of terrorism and weapons of mass destruction. When did the threat of al-Qaida become imminent? I know when it became manifest. Not, by the way, on September 11. Osama bin Laden had struck many times before then. On September 11, the threat became catastrophic. It was well beyond manifest. It was well beyond imminent.

Today, most people agree the threat of Bin Laden should have been considered imminent well back into the 1990s. I first started speaking of this threat in 1996, but I now believe this threat could have been considered imminent even before that.

Do my colleagues agree we had to reconsider the definition of ``imminence'' after September 11, that the threat of terrorism forces us to redefine threats to our national security, that it would have been irresponsible for any administration entrusted with national security to avoid doing so? Does anybody disagree with that?

Would my colleagues allow me just a few more questions which I would like to ask everybody in this body, please? I wonder if my colleagues would agree with this assessment about the threat that Iraq poses.

I had to make, for my own conscience and to present to my constituents, my own assessment of the threat posed by Iraq. The threats Saddam Hussein posed to his own people were clear. Free Iraqis today will be undertaking the grim task of exhuming mass graves for a long time. Saddam's threat to his neighbors and our friends in the gulf and Middle East are also well established. But all of us had to determine what threat was posed to the United States.

I feared a nexus between weapons of mass destruction and a terrorism- sponsoring state, and we feared they had weapons of mass destruction. The U.N. confirmed they had had weapons of mass destruction. They used weapons of mass destruction against their own people and threatened the use of them against others. They used them against others, as well, in the Iranian war.

On weapons of mass destruction, we know that we have not discovered any weapons of mass destruction so far. This debate has been joined on a number of levels. I fully support the chairman of the Senate Select Committee

on Intelligence in his determined efforts to learn about the failures of our intelligence, if there were, in fact, failures.

We still have not even looked at the vast majority of sites in Iraq where weapons of mass destruction may still lie. I know that every intelligence community professional agrees with our need to learn from many errors because all of us know the value of accurate intelligence, while all of us recognize the limits to perfectibility.

On another level, both in the Intelligence Committee and in the public arena, the debate has become more partisan, acrimonious and, once again, deceptive.

Will my colleagues agree with me that the cost of making intelligence oversight partisan is not worth the devaluation of a tool that we need more than at any other time in our history?

I would like to know if my colleagues would agree with the following conclusion about Saddam Hussein's weapons of mass destruction. We faced a weapons of mass destruction gap.

This gap was the difference between the chemical and biological stockpiles we had confirmed existed until the late 1990s and the lack of evidence regarding their status or destruction in 2002--their status, their destruction, or their removal someplace else. The gap was significant. No other Western government or intelligence government could explain it, nor could the United States verify that the gap had been closed by the cooperation of the Iraqi regime in proving the destruction of these weapons.

This was a requirement, by the way, under international law, made to the international community, a requirement that was the result of the cessation of hostilities at the end of the first gulf war; a requirement that unmet left that war unresolved, unconcluded, and therefore without a promise of peace.

The attempts at denial and deception by the Iraqi regime were blatant. The refusal to cooperate with the international community was obstinate. The potential threat posed by a regime violently hostile to the United States was grave. I hope my colleagues will agree that it would have been irresponsible for any administration entrusted with the national security to avoid reaching similar conclusions.

There was the threat of terrorism. For well over a decade, Iraq was on our list of state sponsors of terrorism. Every Member in this body had ample opportunities to review the evidence supporting this claim-- this verified knowledge, by the way.

To my knowledge, no Member on either side of the aisle questioned the President's determination, or this determination.

Now, of course, we have not proven a link to September 11, and ultimately there will likely not be a causal link. Perhaps Saddam was directly involved. Perhaps we will learn more.

Association is not causation, as every logic professor would say. Caution in leaping to conclusions is in order. Associating with terrorist groups, as we know Saddam Hussein has done and had done, training them, giving them moral and financial support, is different than directing them. Nevertheless, his links to terrorism had been evident for a long time.

The President has made it clear, since his first speech before the Congress days after September 11, that associating with terrorist groups would no longer be responded to with apathy. The previous administration did so, there is no question about that, and America's security was gravely compromised.

Do my colleagues remember the President's speech to the Congress after September 11, 2001? Do they recall, as I do, the public's overwhelming support for what the President said that day?

Certainly the evidence of Al-Zurqawi whose documents were captured and released a few weeks ago, as well as the reports in the press suggesting links with the Ansar-al-Islam indicated a troubling link between Iraq and al-Qaida.

I am waiting for some of the administration's critics to suggest that these two terrorist elements were caused by our intervention in Afghanistan and that had we supported the status quo there we would not be facing the terrorists of the jihadists and Ansar-al-Islam. That would have been another very specious analysis.

It is true that Al-Zarqawi and Ansar became more active as a result of our intervention in Afghanistan, when we deposed the Taliban and al- Qaida and fled from that country to hide in Pakistan or to get safe passage from Iran to travel to Iraq. In my estimation, if Saddam Hussein was not involved in September 11, his regime certainly became more dangerous to us as a result of our attack on the Taliban in Afghanistan.

I hope my colleagues can imagine that this President or any President would not have had to respond similarly to the way President Bush responded to the Taliban's protection of al-Qaida after September 11, 2001. That is, of course, unless a President had judged the threat of al-Qaida imminent before that fateful day.

Finally, I would like my colleagues to allow me a question or two on the responses we have heard from David Kay's testimonies. The response to the Kay testimonies has also been very troubling to me because the testimonies of an honest and substantive man have been subject to partisan rancor over the President's difficult decision to go to war.

Listening to some commentators, one would think Kay's honest assessment that weapons of mass destruction will not be found, an assessment that I believe may still be premature, could be interpreted into a challenge to the sincerity of the administration's estimate of the Iraqi threat.

As I have said, I believe we need to investigate any flaws in our intelligence that David Kay or any other serious professional exposes. Yet this is what David Kay told us. In an interview earlier this month, he said: I certainly believe that Iraq was a gathering threat. In fact, in many ways, it will probably turn out that Saddam and that regime were more dangerous than we anticipated because, in fact, it was falling apart into unbelievable depravity and corruption.

Where is that quote among all of our liberal commentators in this country today? Where is that quote? That was one of the most important quotes he made.

The week before, Kay told the public, in responding to a question of whether the decision to go to war was prudent: I think it was absolutely prudent. He said: I think it was absolutely prudent. In fact, I think at the end of the inspection process we will paint a picture of Iraq that was far more dangerous than even we thought it was before the war. It was of a system collapsing. It was a country that had the capability and weapons of mass destruction areas and in which terrorists, like ants to honey, were going after it.

The fact is, it took guts for the President to do what he did. He was right, and history will prove him to be right.

When I hear these testimonies of David Kay, I become concerned of yet another intelligence failure: We did not adequately assess the political degradation of the Saddam Hussein regime, the political degradation of a regime that killed 300,000-plus of its own citizens, men, women, and children, and buried them in mass graves, and helped to kill a million others in its war with Iran. We did not adequately assess the political depravity and degradation of Saddam Hussein's regime. Iraq had become a gangster state.

It was, according to David Kay, and all the reports we are now getting from free Iraq, more dangerous than we thought. Yet some criticize the President's decision? Give me a break. They ought to be criticized. The critics know these facts as well as I do, and ignoring them is a terrible thing.

I would just like to ask my colleagues whether the assessment by David Kay should not support the President's brave decision to address the threat of the Hussein regime by implementing a policy of regime change--a policy that had been nearly unanimously supported in our Government for 4 years?

Was Iraq a grave and gathering threat, as the President said? I ask my colleagues, especially those who have been so critical of the President, would it have been responsible for any administration entrusted with the national security to avoid reaching similar conclusions? I think Senator Kerry was right when he said this:

I believe the record of Saddam Hussein's ruthless, reckless

breach of international

values and standards of behavior, which is at the core of the

cease-fire agreement, with no reach, no stretch, is cause

enough for the world community to hold him accountable by use

of force, if necessary.

The ranking member of the Senate Intelligence Committee said, back in 2002:

There is unmistakable evidence that Saddam Hussein is

working aggressively to develop nuclear weapons and will

likely have nuclear weapons within the next 5 years. We also

should remember we have always underestimated the progress

Saddam has made in the development of weapons of mass

destruction.

That was said in the Congressional Record. Why the difference today? Let's go back to my friend, Senator Kerry, the Senator from Massachusetts, again. Back in 1990 he said:

Today, we are confronted by a regional power, Iraq, which

has attacked a weaker State, Kuwait. . . . The crisis is even

more threatening by virtue of the fact that Iraq has

developed a chemical weapons capability, and is pursuing a

nuclear weapons development program. And Saddam Hussein has

demonstrated a willingness to use such weapons of mass

destruction in the past, whether in his war against Iran or

against his own Kurdish population.

My gosh, that was said in the Congressional Record on October 2, 1990.

On November 9, 1990, the distinguished Senator from Massachusetts said this:

[Saddam Hussein] cannot be permitted to go unobserved and

unimpeded towards his horrific objective of amassing a

stockpile of weapons of mass destruction. This is not a

matter about which there should be any debate whatsoever in

the Security Council, or, certainly, in this Nation.

All I can say is why did he say that then, and why, as a candidate, is he saying the things he is saying today?

The distinguished Senator from Massachusetts said:

[W]hile we should always seek to take significant

international actions on a multilateral rather than a

unilateral basis whenever that is possible, if in the final

analysis we face what we truly believe to be a grave threat

to the well-being of our Nation or the entire world and it

cannot be removed peacefully, we must have the courage to do

what we believe is right and wise.

That is in the Congressional Record on November 9, 1997.

I think the distinguished Senator from Massachusetts deserves credit for those statements. He was warning America during the Clinton years of how terrible the Saddam Hussein regime really was. He deserves credit for that.

On November 9, 1997, the distinguished Senator from Massachusetts was right again. He said:

It is not possible to overstate the ominous implications

for the Middle East if Saddam were to develop and

successfully develop and deploy potent biological weapons. We

can all imagine the consequences. Extremely small quantities

of several known biological weapons have the capability to

exterminate the entire populations of cities the size of Tel

Aviv or Jerusalem. These could be delivered by ballistic

missile, but they also could be delivered by much more

pedestrian means; aerosol applicators on commercial trucks

easily could suffice. If Saddam were to develop and then

deploy usable atomic weapons, the same holds true.

He was warning the nation and he deserves credit for having done so then.

On February 23, 1998, the distinguished Senator from Massachusetts said this:

There are a set of principles here that are very large,

larger in some measure than I think has been adequately

conveyed, both internationally and certainly to the American

people. Saddam Hussein has already used these weapons and has

made it clear that he has intent to continue to try, by

virtue of his duplicity and secrecy, to continue to do so.

That is a threat to the stability of the Middle East. It is a

threat with respect to the potential of terrorist activities

on a global basis. It is a threat even to regions near but

not exactly in the Middle East.

I am hooked. Incredible. I am proud of the distinguished Senator from Massachusetts for having said that during the Clinton years. I just wish he would acknowledge that he said that during the Bush years.

There are other distinguished Senators who knew of this threat and who made statements on what we should do back during the Clinton years, and even during the Bush years.

It bothers me that this President has been so viciously attacked by people who know the facts and who knew them back during the Clinton years and spoke out about them during the Clinton years, who are so willing to demean this President during the years of George W. Bush as President. It never ceases to amaze me how out of tune we become when Presidential years come along. I think it happens to both sides. I really believe that. I believe there are partisans on both sides. But I have never seen it like it is today.

It used to be that we supported whoever was President in foreign matters. We stand together. I guess this partisanship really began during the Vietnam war. But it has reached a pitch today that is unseemly.

Well, let me go first.

No.

Mr. President, I send an amendment to the desk on behalf of Senators Campbell, Leahy, Hatch, DeWine, Sessions, and Craig, and ask for its immediate consideration.

Mr. President, let's see if my colleague from Connecticut can agree to this. I intend to take a few minutes to define the bill. I have promised Senator DeWine, I think he only has about 3 or 4 minutes.

I will say my statement in a very few minutes. Then I ask unanimous consent that we go to the distinguished Senator from Connecticut and then----

I will be short. I ask unanimous consent that the distinguished Senator from Connecticut be recognized pursuant to Senator Kennedy's granting of time and immediately thereafter the Senator from Ohio be recognized.

Today I rise and join Senators Campbell, Leahy, Reid, and others I have named on this bill to offer it as an amendment to S. 1805, the Law Enforcement Officers Safety Act of 2003, which was favorably reported out of the Judiciary Committee with strong bipartisan support last session.

This amendment, which permits qualified current and retired law enforcement officers to carry a concealed firearm in any jurisdiction, will help protect the American public, our Nation's officers, and their families. I would note this bill has the overwhelming support of the Fraternal Order of Police and other law enforcement associations which have vigorously worked in support of this measure.

This amendment allows qualified law enforcement officers and retired officers to carry, with appropriate identification, a concealed firearm that has been shipped or transported in interstate or foreign commerce regardless of State or local laws.

Importantly, this legislation does not supersede any State law that permits private persons to prohibit or restrict possession of firearms on any State or local government properties, installations, buildings, bases, or parks. Additionally, this amendment clearly defines what is meant by ``qualified law enforcement officer'' and ``qualified retired or former law enforcement officer'' to ensure those individuals permitted to carry concealed firearms are highly trained professionals.

This amendment will not only provide law enforcement officers with the legal means to protect themselves and their families when they travel interstate, it will also enhance the security of the American public, which is long overdue.

By enabling qualified active duty and retired law enforcement officers to carry firearms, even if off duty, more trained law enforcement officers will be on the street to enforce the law and to respond to any crises that may arise.

I urge my colleagues to vote in favor of this amendment because passage of this important legislation will provide that extra layer of protection to current and retired law enforcement officers, their families, and the public that we so desperately need.

Mr. President, I appreciate the cosponsors on this bill, which includes Senator Reid. I ask unanimous consent that Senator Reid be added as a cosponsor.

I yield the floor.

I rise today in support of S. 1805, the Protection of Lawful Commerce in Arms Act. This critically important bipartisan legislation will block baseless lawsuits initiated by individuals who wish to drive out of business a lawful and legitimate business, the American firearms industry.

This bill will halt lawsuits that are nothing more than shameless attempts

to advance a stalled anti-gun legislative agenda and a flagrant abuse of the judicial system. I commend my colleague, Senator Larry Craig, and other cosponsors from both sides of the aisle, over 50 of them, for their hard work to get this bill to the Senate floor.

As my colleagues are aware, I have long been a proponent of legislation that addresses the growing problem of lawsuit abuse. The issues addressed by this legislation will remedy one such class of shameless and abusive lawsuits. I am hopeful this will be the first of many other reform measures that the Senate will take up before the end of the 108th Congress. This includes asbestos reform that would save this country, save jobs, provide jobs, for hundreds of thousands of people; bankruptcy, which also would save jobs that our friends on the other side seem to be stopping; and class action reform, which in the end would save jobs.

As I mentioned, this legislation has broad bipartisan support, including from the minority leader. I agreed with my colleague, Senator Daschle, when he quite accurately stated:

It is wrong, and it is a misuse of the civil justice

system, to try to punish honest, law-abiding people for

illegal acts committed by others without their knowledge or

involvement. That's not the way we do things in America. We

do not hold innocent people responsible for acts they are not

involved in and over which they have no control.

I commend Senator Daschle. He could not have said it better. I call these lawsuits shameless because the trial lawyers who bring them--and they are really personal injury lawyers, by and large, who bring them-- dislike and attack a product that is produced and marketed legally. What is going on is simply outrageous. It is as absurd as suing a car manufacturer for drunken driving accidents or suing a fast food company because a hamburger has more calories than it should. We must put a stop to these senseless lawsuits before our legal system grinds to a halt.

The need for legislation of this type is imperative. This legislation will prohibit civil liability actions against the firearms industry for damages resulting from the misuse of its products by others; that is, meritless lawsuits based on lawful products that are intentionally misused are prohibited by this bill. Now, anybody who thinks ought to agree with that.

In product liability cases, plaintiffs traditionally have been able to sue for compensation for injuries because, No. 1, a product was defective; No. 2, the defect posed an unreasonable danger to the user; and No. 3, the defect caused the injury. A ``defective product'' is one that does not operate as a reasonable manufacturer would design and make it, as a reasonable consumer would expect, or as other products of its type.

Courts uniformly have held that a defect must exist in the product at the time it was sold and that a plaintiff's injury must have been the result of that defect. However, in the firearms context, gun manufacturers and dealers are potentially liable for injuries that occur because their properly operating product is criminally or negligently misused. Now, this is unacceptable.

I would also like to take this opportunity to make clear that this legislation does not relieve from liability gunmakers who create defective products or gun dealers who negligently sell weapons when they know or should have known that such a weapon would be used in a crime.

Additionally, this legislation contains the following significant safeguards: One, an action brought against a transferor convicted for transferring a firearm knowing it would be used in a crime of violence or drug trafficking crime by a party directly harmed by the conduct of which the transferee is so convicted; No. 2, an action brought against a seller for supplying a firearm or ammunition to another person when one knows or should know that person is likely to and does use the product in a manner involving unreasonable risk of physical injury to the person and others for negligence per se; No. 3, an action in which a manufacturer or seller violated a State or Federal statute applicable to the sale or marketing of the product and the violation was the proximate cause of the harm for which relief was sought; No. 4, an action for breach of contract or warranty in connection with the purchase of a product; or No. 5, an action for physical injuries or property damage resulting directly from a defect in design or manufacture of the product when used as intended or in a manner that is reasonably foreseeable.

Now, because this bill strikes the right balance between protecting the general public and those who manufacture a lawful product, I strongly support the legislation, and I urge all of my colleagues to do the same.

We all know what is involved. We know the personal injury lawyers are going to sue just about anybody against whom they are able to conjure up a theory of liability, and hope that some of the irresponsible judges in this country will allow those cases to go to the jury. Then on appeal, they hope irresponsible appellate lawyers and activist judges, will ignore the law, ignore every basic instinct of the law, and allow those lawsuits to go forward. And they hope their friends on the Supreme Court will ignore the law as well and through activism do whatever they believe is right, as many of the judges on the Ninth Circuit Court of Appeals do every day. They ignore the law completely, do whatever their gut tells them ought to be done, even though most of the time their gut is filled with legalistic ulcers.

The fact is, that is not the way the law should run. That is not the way it should operate. Lawyers should be ashamed to bring these type of cases. In this particular bill, we protect the consuming public and others from irresponsible misuse of firearms. We protect them from irresponsibility on the part of any gun manufacturer. That needs to be said, and it needs to be said over and over.

The fact is, what we have is a lot of very liberal thinkers who think that guns should not be owned by anybody, or they should be owned only by a few--I guess those who have been to some sort of anti-gun college.

The fact is, most Americans own guns, most Americans value guns, most Americans believe in protecting themselves and their families. Where we have the most guns, that is where we have the lowest amount of crime.

Everybody knows I have brought a bill to the Senate to allow guns to be kept in the home in the District of Columbia, which many refer to as Murder Capital USA. I don't want to bring that up as an amendment on this. I might have to, if some of these irresponsible amendments filed pass. We know the only way this bill is going to make it to the President's signature is if it doesn't have any other amendments on it. But if any others pass, I think we ought to vote on that one as well. Because, to be honest with you, I have had hundreds of DC residents call me and say thank God somebody is acting in our interests, where we can at least protect our homes.

That is how bad it is. We have people who just don't believe in guns, don't believe in sportsmanship, don't believe in the right to collect guns, who are going to be against them for political reasons because they think there are political advantages for them. Frankly, I think they are going to find there are not any political advantages for them because most people in our country believe in the right to have their own arms. Most people hunt and fish. Most people are proud of the fact they can take their young boys or girls out and have target practice and shoot guns.

The fact is, the vast majority, the highest percentile in the world, use guns responsibly in this country. For those who do not, I am for coming down very hard against them. For those who misuse guns in the commission of crimes, you can't get any tougher on crimes than Orrin Hatch is. Frankly, we passed legislation around here, anti-crime legislation, Senator Biden and myself and others, that literally goes hard on those who use and misuse weapons and use them in criminal activity. That is what we should be doing. But we certainly ought not to allow spurious, frivolous lawsuits brought against gun manufacturers who have done nothing wrong other than make guns the American people would like to own.

With that, I don't mean to demean anybody on the floor. All I can say is that for the life of me, I can't understand why anybody would be against this bill who understands the law and

understands the way the law should be applied. Frankly, I am amazed that some are. There were 22 who voted against cloture this morning. That was unbelievable. The fact of the matter is, cloture should have been invoked 100 to zip, but that is how far this issue has denigrated, to the point where it is just a political issue in the eyes of some.

It is time to get rid of the politics and understand the American people are not going to put up with that kind of stuff, and they should not. The law should not be used in the frivolous fashion some of these personal injury lawyers use it. There are a lot of great personal injury lawyers out there and there are a lot of great trial lawyers who do what is right and who would not think for a minute of bringing these frivolous lawsuits against gun manufacturers who are not responsible for the misuse of their weapons. When they are irresponsibly brought, this bill takes care of them. It says you are going to pay for it.

But when they are not responsible for the misuse of their weapons, why in the world would we allow litigation to be brought, just because the trial lawyers might support us? There is a certain point where any good thinking person has to say: Look, the law is more important than just emotion. Unfortunately, most of the arguments used against this bill are emotional arguments that really have no place in the area of law. Frankly, they should not be paid very much attention.

I yield the floor.

Mr. President, what is the state of business?

Thank you, Mr. President.

I rise to speak in support of S. 2061, the Healthy Mothers and Healthy Babies Access to Care Act.

This bill addresses the medical liability and litigation crisis in our country, a crisis that is preventing patients from receiving high quality health care--or, in some cases, any care at all because doctors are being driven out of practice. This crisis is limiting or denying access to vital medical care and needlessly increasing the cost of care for every American.

As you will recall, we have previously tried to remedy this crisis in access to care. Most recently, we debated S. 11 which failed to receive the 60 votes necessary to invoke cloture last July. You have to have a supermajority now on these types of issues because of the opponents of this bill--and some others.

The time to act is now. The health care crisis is jeopardizing access to health care for many Americans. The medical liability crisis is also inhibiting efforts to improve patient safety and is stifling medical innovation. Excessive litigation is adding billions of dollars in increased costs and reduced access to high quality health care.

Defensive medicine is way out of whack. We are spending billions of dollars on unnecessary defensive medicine because doctors are terrified they are going to be sued in these frivolous lawsuits--called medical liability suits--by personal injury lawyers.

I am deeply concerned that we are needlessly compromising patient safety and quality health care. We know about 4 percent of hospitalizations involve an adverse event, and 1 percent of hospitalizations involve an injury that would be considered negligent in court.

These numbers have been consistent in large studies done in New York, California, Colorado, and in my home State of Utah. However, the equally troubling statistic is only 2 percent of cases with actual negligent injuries result in claims, and less than one-fifth--17 percent--of claims filed actually involve a negligent injury.

This situation has been likened to a traffic cop who regularly gives out more tickets to drivers who go through green lights than those who run red lights. Clearly, nobody would defend that method of ensuring traffic safety, and we should not accept such an insufficient and inequitable method of ensuring patient safety. Numbers are a searing indictment of the current medical liability system. I personally believe we can do better for the American people, and the Healthy Mothers and Babies Act is an important step in that path.

The problem is particularly acute for women who need obstetrical and gynecologic care because OB/GYN is among the top three specialties with the highest professional liability insurance premiums. This has led to many doctors leaving practice and to a shortage of doctors in many States, including my home State of Utah.

Studies by both the Utah Medical Association and the Utah Chapter of the American College of Obstetricians and Gynecologists underscore the problem in my State. Over half--50.5 percent--of family practitioners in Utah have already given up obstetrical services or never practice obstetrics. Of the remaining 49.5 percent who still deliver babies, 32.7 percent say they plan to stop providing OB services within the next decade. Most plan to stop within the next 5 years.

An ACOG survey from August 2002 revealed that over half--53.16 percent--of OB/GYNs in Utah have changed their practice, such as retiring, relocating, or dropping obstetrics because of the medical liability reform crisis. This change in practice leaves 1,458 pregnant Utahns without OB/GYN care.

The medical liability crisis, while affecting all medical specialties and practices, hits OB/GYN practices especially hard, and I suspect this is true of every State in the Union. Astonishingly, over three- fourths, 76.5 percent, of obstetricians/gynecologists report being sued at least once in their career. Indeed, over one-fourth of OB/GYN doctors will be sued for care given during their residency. These numbers have discouraged Americans finishing medical school from choosing this vital specialty. Currently, one-third of OB/GYN residency slots are filled by foreign medical graduates compared to only 14 percent one decade ago. OB/GYN doctors are particularly vulnerable to unjustified lawsuits because of the tendency to blame the doctor for brain-injured infants, although research has proven that physician error is responsible for less than 4 percent of all neurologically impaired babies.

Ensuring the availability of high-quality prenatal and delivery care for pregnant women and their babies, the most vulnerable members of our society, is imperative. We simply must pass this bill.

In August 2003, a GAO report concluded that actions taken by health providers as a result of skyrocketing malpractice premiums have contributed to health care access problems. These problems include reduced access to hospital-based services for deliveries, especially in rural areas. In addition, the report indicated that States that have enacted tort reform laws with caps on noneconomic damages have slower growth rates in medical malpractice premiums and claims payments. From 2001 to 2002, the average premiums for medical malpractice insurance increased about 10 percent in States with caps on noneconomic damages. In comparison, States with more limited reforms experienced an increase of 29 percent in medical malpractice premiums.

Medical liability litigation directly and dramatically increases health care costs for all Americans. Unfortunately, a high percentage of those cases are brought in order to get the defense costs by, in many respects, lawyers who are not true to their profession, who are personal injury lawyers seeking to make a buck.

In addition, skyrocketing medical litigation costs indirectly increase health care costs by changing the way doctors practice medicine. Defensive medicine is defined as medical care that is primarily or solely motivated by fear of malpractice claims and not by the patient's medical condition. According to a survey of 1,800 doctors published in the Journal of Medical Economics, more than three-fourths of doctors believed they must practice defensive medicine. A 1998 study of defensive medicine by Mark McClellan, our current head of the FDA who has been nominated now to be head of CMS, used national health expenditure data that showed medical liability reform has the potential to reduce defensive medicine expenditures by $69 billion to $124 billion in 2001, an amount that is between 3.2 and 5.8 times the amount of malpractice premiums.

The financial toll of defensive medicine is great and especially significant for reform purposes as it does not produce any positive health results nor benefits. Not only does defensive medicine increase health care costs, it also puts Americans at avoidable risk. Nearly every test and every treatment has possible side effects. Thus every unnecessary test, procedure, and treatment potentially puts a patient in harm's way.

Seventy-six percent of physicians are concerned that malpractice litigation has hurt their ability to provide quality care to patients. What can we do to address this crisis? The answer is plenty. There are excellent examples of what works.

Last March, the Department of Health and Human Services released a report describing how reasonable reforms in some States have reduced health care costs and improved access to quality health care. More specifically, over the last 2 years in States with limits of $250,000 to $350,000 on noneconomic damages, premiums have increased an average of just 18 percent, compared to 45 percent in States without such limits.

California enacted the Medical Injury Compensation Reform Act, also known as MICRA, more than a quarter century ago. MICRA slowed the rate of increase in medical liability premiums dramatically without affecting negatively the quality of health care received by the State's residents. As a result, doctors are not leaving California. Furthermore, between 1976 and 2000, premiums increased by 167 percent in California, while they increased three times as much, 505 percent, in the rest of the country. Consequently, Californians were saved billions of dollars in health care costs, and Federal taxpayers were saved billions of dollars in the Medicare and Medicaid programs.

No one in this body, perhaps with the exception of our colleague from Tennessee, Dr. Bill Frist, our majority leader, is more keenly aware of the defects in this system than I. Before coming to Congress, I litigated several medical liability cases. I defended health care providers. I have seen the heart-wrenching cases in which mistakes were made and where judgments should have been brought. But more often I have seen heart-wrenching cases in which mistakes were not made and doctors were forced to expend valuable time and resources defending themselves against frivolous lawsuits.

I have seen a lot of cases where there was no injury at all that were brought by unscrupulous personal injury lawyers, running up the cost to all the doctors, to the whole system. A high percentage of these cases are brought merely for defense costs because it cost so much to defend these cases that even the defense costs mean a pretty good fee if you are charging 30 to 40 percent.

The recent Institute of Medicine report, ``To Err is Human,'' concluded that ``the majority of medical errors do not result from individual recklessness or the actions of a particular group. This is not a bad apple problem. More commonly, errors are caused by faulty systems, processes, and conditions that lead people to make mistakes or fail to prevent them''. We need reform to improve the health care systems and processes that allow errors to occur and to identify better when malpractice has not occurred.

The reform I envision would address litigation abuses in order to provide swift and appropriate compensation for malpractice victims, redress for serious problems, and ensure that medical liability costs do not prevent patients from accessing the care they need. We need to move ahead with legislation to improve patient safety and reduce medical errors, and we need urgently to address the medical liability crisis so that more women are not denied access to quality medical care because it has become too expensive for their OB/GYN doctors to continue their practice.

The Healthy Mothers and Healthy Babies Access to Care Act will allow us to begin ensuring women and babies get the medical care they need and deserve. Without tort reform, juries are awarding astounding and unreasonable sums for pain and suffering. A sizable portion of those awards goes to the attorney rather than to the patient. The result is that doctors cannot get insurance and patients cannot get the care they need and deserve.

All Americans deserve the access to care, the cost savings, and the legal protections that States such as California provide their residents. Today's bill will allow us to begin to address this crisis in our health care system, gives women and their babies access to their OB/GYN doctors, and enables doctors to provide high-quality, cost- effective medical care.

I strongly support this legislation and urge my colleagues to support cloture.

I yield the floor.

Mr. President, I ask unanimous consent that Patrick Shen and Brett Tolman, detailees on the Judiciary Committee staff, be granted the privileges of the floor for the duration of this session.

Mr. President, these truly are ``the times that try men's souls'' and challenge our resolve as a Nation. Today, it is with profound regret that I stand to pay tribute to a true patriot of liberty who gave his life so that others may live in freedom. His name was Juan C. Cabralbanuelos and he was a soldier in the U.S. Army.

Many have stood in this chamber to reflect on the loss that our Nation has felt and the price that it has paid to remain free. Today, I stand to remember one who was a citizen of another nation, one who loved the United States and freedom so much, he was willing to give his life to preserve an idea: freedom. He truly deserves the honor of being called an American patriot.

Coporal Cabralbanuelos leaves behind a wife Anita and two sons ages seven and one. To them, I know that nothing that I say here will temper your grief. But know this: your loss will not go unnoticed and unrecognized, your fellow Americans now and always will stand behind you and support you through the trying times ahead.

And so another name has been added to Utah's List of Honor: Corporal Juan Carlos Cabralbanuelos. He joins an illustrious list that includes Specialist David J. Goldberg, US Army Reserve; Captain Nathan S. Dalley, West Point graduate and a member of the Army's 1st Armored Division; staff Sergeant James W. Cawley, United States Marine Corps Reserve; Staff Sergeant Nino D. Livaudais of the Army's Ranger Regiment; Randall S. Rehn, of the Army's 3rd Infantry Division; Sergeant Mason D. Whetstone of the United States Army; and former Special Forces soldier Brett Thorpe.

Their names and the service they performed is something that I shall never forget. I shall always honor them and their families.

Madam President, I rise today in support of our nominee to the U.S. District Court of the Northern District of New York, Gary L. Sharpe.

Judge Sharpe graduated magna cum laude from Buffalo University in 1971 where he was a member of Phi Beta Kappa. Three years later, he graduated from Cornell Law School.

Judge Sharpe had a distinguished legal career prior to his appointment as a Federal magistrate judge for the Northern District of New York in 1997. He had been an Assistant Broome County District Attorney in Binghamton, a special assistant New York Attorney General in Syracuse, a supervisory Assistant U.S. Attorney, and the interim U.S. Attorney for the Northern District of New York.

Judge Sharpe is also a Vietnam veteran, having served our country in both the U.S. Army and Navy.

Judge Sharpe has a wealth of experience that will serve him well on the Federal bench. I am very confident that he will make an excellent Federal judge. I commend President Bush for nominating him, and I urge my colleagues to join me in supporting his nomination.

Thank you, Mr. President. I yield the floor.

I ask for the yeas and nays.

Mr. President, I rise today to discuss the sections of the consolidated Appropriations bill, H.R. 2673, that pertain to funding for the Departments of Commerce, Justice, and State. I want to recognize the conferees, especially CJS Appropriations Chairman Gregg and ranking minority member Hollings for their hard work on this bill.

It has been just over 2 years since the horrific September 11 attack against our country. We must remain vigilant in fighting the threat of terrorism. Our priorities should reflect the need to ensure the security of our people. The Justice Department leads our Federal law enforcement efforts that are so critical to protecting our country.

Securing the safety and security of Americans at home and abroad should continue to be the number one priority in the Federal law enforcement budget. Such security requires providing Federal law enforcement agencies, as well as State and local law enforcement agencies, with the tools necessary to combat terrorism. Providing adequate funding for these tools is essential to law enforcement's ability to protect America. I am pleased that the Omnibus appropriations bill reflects this priority.

While we must continue to safeguard America from future terrorist attacks, we should, at the same time, exercise fiscal discipline in order to promote our economy. We face difficult budget decisions but I am optimistic that with the improving economy we can balance the need to fund fully the programs necessary to protect Americans with the continuing need to exercise the fiscal discipline that our constituents deserve.

I am especially pleased that approximately $62 million will be appropriated to the Foreign Terrorist Tracking Task Force FTTTF. This independent agency is responsible for coordinating and sharing information among agencies which is crucial to preventing terrorist attacks. The FTTTF is tasked with an enormous responsibility--gathering information from and sharing intelligence with--the CIA, the FBI, the National Security Agency and the Departments of Justice, Homeland Security, Treasury, State and Defense. Breaking down the walls between our agencies is critical to our national security, and I applaud the increase in funding for the Foreign Terrorist Tracking Task Force.

While our Federal law enforcement agencies have focused on combating terrorism, they also carry the burden of investigating and prosecuting other significant crimes. I am pleased to see that the bill includes almost $557 million for Interagency Drug Enforcement which reflects funding for the multiple Departments, including the Department of Homeland Security, the Department of Treasury, and the Department of Justice, which are responsible for cooperating and bringing together the expertise of each of the Federal agencies with the efforts of state and local law enforcement to combat major narcotics traffickers and money launderers. This represents a significant increase to assist law enforcement operations.

I am especially pleased that the Conferees accepted the House funding levels for the Drug Enforcement Administration, DEA at approximately $2.2 billion rather than the Senate's level which would have severely hampered the DEA. At a time when the DEA is shouldering a greater burden in fighting drug trafficking, I commend the Senate for increasing the DEA's funding to make sure that our communities receive all the help they can to reduce the scourge of drugs.

I am also pleased to see that the bill funds the Juvenile Accountability Block Grant, JABG, program which was recently reauthorized as part of the ``21st Century Department of Justice Appropriations Authorization Act,'' P.L. 107-273. Congress reformed the federal role in the nation's juvenile justice system by providing relief from burdensome federal mandates and authorizing block grant assistance to States and local governments, which includes accountability-based juvenile justice programs. The authorization act strengthened the Juvenile Accountability Incentive Block Grant program.

With the passage of Trade Promotion Authority in 2002, Congress set, as one of its priorities, the successful negotiation of free trade agreements. As many of my colleagues are aware, the burden of negotiating these agreements falls on the Office of the United States Trade Representative, USTR. I submit that in order for USTR to do its job, we must ensure that they have the adequate resources necessary to perform the job that we demand of the agency.

Let's examine some of the realities at USTR. One year prior to the passage of TPA, USTR's workload was comprised of two trade agreements. One year after the passage of TPA, USTR's has taken on more than five times its prior workload, negotiating nearly a dozen Free Trade Agreements and pursuing several dispute settlement talks.

And the complexities of the negotiations before and after the passage of TPA have changed. Under the mandates of TPA, through the course of negotiating any Free Trade Agreement, U.S. negotiators seek: strong Intellectual Property Rights protections; access to telecommunications markets; access to financial markets; strong biotechnology protections; increased access to the services markets; strong investment protections; reasonable labor protections; common sense environmental protections; access to the e-commerce market; to ensure the safety of imported food; and strong dispute settlement mechanisms that help to protect America's economic interests. This is no small feat.

I am pleased that the conferees accepted the House level of funding to this important agency which provided an additional $5 million-- bringing USTR's funding to $41,994,000. This additional funding is consistent with the marked increase in the agency's workload and will help ensure that USTR will be able to adequately fulfill their Congressional mandate.

I was hoping to see language in the bill which would ask the General Accounting Office, GAO, to look into several issues that will be relevant in the preparation of the 2010 census. What I would have liked to see could have been as simple as the following: the potential cost of any 2010 Overseas Census; the use of emerging technologies, including the internet, in any overseas enumeration; the feasibility of using State or Federal systems for assigning Americans living outside of the United States for purposes of appointment of Representatives in Congress among the several states; and the different ways of determining some legal basis for whom should be counted.

These are important issues that need to be more fully explored. In my State of Utah, where some 14,000 Utah residents are serving an overseas mission for the Church of Jesus Christ of Later Day Saints and are not counted in any census--this is an especially critical issue. I submit that these four issues are not only important for Utahns but for the nation as a whole. There are many citizens of this great Nation that are either temporarily living or working overseas that are not counted in the decennial census. The Congress needs to identify the best and most cost effective ways to ensure that every citizen is counted.

I would have also liked this bill to correct a provision enacted in Section 211 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999. That section was challenged before the WTO following its application in a U.S. lawsuit addressing the enforceability of a trade name confiscated by the Cuban government in 1960 without compensation to the owner. The court found the trademark to be unenforceable by the plaintiff entity, which had acquired the alleged rights to the mark from the Cuban government. Congress should bring the United States into compliance with the decision of the WTO Appellate Body in that case.

The WTO found in favor of the United States on the section 211 challenge in all respects but one: it concluded that section 211 was drafted in a manner that transgressed the national treatment and most- favored-nation obligations under the TRIPS agreement. At issue was the language of section 211 specifying that the Cuban Government, Cuban nationals and their non-U.S. successors are ineligible to own, and therefore enforce, confiscated trademarks. We should clarify that the prohibition on owning trademarks confiscated in Cuba applies to all nationals, not just Cuban nationals and their successors, thus removing the basis of the WTO's criticism.

While I urged the chairman and ranking Democratic member of the Appropriations Committee to look seriously at including this language in the bill to correct previous appropriations language, I do want to make it clear that it does not constitute a waiver of the Judiciary Committee's jurisdiction over this or any related matter.

Again, I want to thank the Conferees for their efforts.

Mr. INHOFE. Mr. President, I would like to remark briefly on a matter of critical importance to me, related to one of the bills included in this omnibus, VA-HUD. The Senate Committee on Appropriations' Report on VA-HUD contains language directing the Agency for Toxic Substances and Disease Registry--ATSDR--to assess the lead levels at the Tar Creek Superfund site in Oklahoma, and to submit a report to Congress on this assessment no later than July 31, 2004. As a Senator from Oklahoma, and as the chairman of the Environment and Public Works Committee, I cannot emphasize enough the importance of this endeavor to more fully understand the elevated lead levels we're seeing in this community, particularly in children. As the chairman of the committee with jurisdiction over both Superfund and ATSDR, I would like to take this opportunity to elaborate on my expectations of ATSDR in connection with this directive: I am urging ATSDR, in collaboration with the Oklahoma State Health Department, to work to identify significant sources and pathways of exposure to lead that may be contributing to elevated blood lead levels in children at the Tar Creek Superfund site in Oklahoma.

Madam President, I am pleased to inform my colleagues that we have reached an agreement on final language for S. 1177, the Prevent All Cigarette Trafficking, PACT Act of 2003, which my friend Senator Kohl and I introduced on June 3, 2003. The manager's amendment makes the PACT Act even stronger than as introduced.

The distinguished Senator from Wisconsin and I originally introduced the PACT Act because of our concern that contraband cigarette trafficking both damages the economies of several States and contributes heavily to the profits of organized crime syndicates, including global terrorist organizations. When we reported this bill from the Judiciary Committee on July 31, 2003, I pledged to work with my colleagues on both sides of the aisle to address any and all concerns they had with the legislation. The result of this bipartisan effort is a piece of legislation that will prevent cigarette and smokeless tobacco smuggling and ensure the collection of tobacco excise taxes without infringing upon the rights of Native Americans or consumers.

Internet sales of cigarettes and smokeless tobacco are an impediment States face in their collection of tobacco excise taxes. A recent General Accounting Office report indicates Internet tobacco sellers rarely comply with requirements under the Jenkins Act of 1949 (15 U.S.C. Sec. Sec. 375-378 (2003)). The Jenkins Act, as modified by this legislation, is a Federal statute that requires tobacco retailers to register with the tax authority for each State in which they sell cigarette and smokeless tobacco products and to file monthly reports providing shipment information within each state. Failing to comply with the Jenkins Act damages not only individual States, but also retailers that are put in unfair commercial disadvantage.

By ensuring the collection of state excise taxes from all tobacco retailers, the PACT Act will neither inconvenience nor hinder smokers and smokeless tobacco users in their ability as consumers to purchase the tobacco products of their choice over the Internet. This legislation merely removes any uncertainty regarding the scope of the Jenkins Act by explicitly mandating Internet tobacco retailers also comply with existing requirements under the Jenkins Act. This strong vehicle with which to collect taxes from Internet tobacco retailers will allow States to finally claim their rightful revenue and level the playing field for all tobacco retailers.

The PACT Act as modified by the manager's amendment also clarifies that the bill will not affect existing tribal compacts relating to tobacco tax collection on tribal lands and allows Native American Tribes to maintain enforcement authority over their own excise tax laws.

As I mentioned in June, law enforcement authorities have uncovered several instances in which organized crime syndicates are illegally funding terrorist organizations, such as Lebanon-based Hezbollah, through the smuggling of cigarettes. These groups purchase cigarettes in States with low taxes and then transport them into states with higher taxes where the contraband is sold to small retailers at below market costs. The September 19, 2003, edition of the Detroit Free Press reports that one such scheme involved a 12-member syndicate, which purchased cigarettes in North Carolina and resold them in Michigan. Because North Carolina collects a 50-cent-per-carton tax and Michigan collects a $12.50 per carton tax, federal prosecutors estimated that one member of the scheme, Hassan Moussa Makki, who monthly smuggled $36,000 to $72,000 worth of cigarettes into the State during a 2-year- period, prevented Michigan from collecting $2 million in tax revenue. Law enforcement authorities determined Makki donated a substantial portion of these profits to Hezbollah. By providing state attorneys general with the necessary enforcement tools and the Bureau of Alcohol, Tobacco, Firearms and Explosives with investigative and inspection authority, the PACT Act will ultimately disrupt this form of terrorist funding and ensure that state, local and tribal governments collect their rightful excise taxes from both cigarette and smokeless tobacco sales.

With respect to delivery sales of smokeless tobacco, this provision is intended to impose strict federal limitations on delivery sales in order to supplement, and not preempt, applicable State or local law. Accordingly, it is intended that State-specific requirements in connection with the collection and remittance of applicable smokeless tobacco excise taxes will remain controlling, notwithstanding that advance payment of excise taxes might otherwise be required by Federal law in the absence of contrary State law. Moreover, the Federal proscription of delivery sales of smokeless tobacco with respect to which excise taxes have not been paid in advance of the delivery is not intended to apply where the laws or administrative practices of the State and locality in which the delivery is made provide that the delivery seller may remit applicable smokeless tobacco excise taxes in an alternate manner.

For example, the law of the delivery State and locality may explicitly or implicitly provide for the payment of smokeless tobacco excise taxes along with the filing of a tax return in the month subsequent to the delivery sale. Under such circumstances, even though applicable State or local law may not require the applicable smokeless tobacco excise taxes be remitted after the delivery, where the law of the delivery State and locality allows for such taxes to be remitted after the delivery, the intent of this provision is that the delivery sale may be made without violating federal law provided that applicable State and local law with respect to the collection and/or

remittance of applicable smokeless tobacco excise taxes are satisfied.

I call upon my colleagues to support Senator Kohl's and my efforts to prevent the funding of global terrorist organizations and ensure the collection of all excise taxes from the sale of cigarettes and smokeless tobacco, including Internet sales, so States can utilize their rightful revenue.

Mr. President, I rise today to introduce with my friend and colleague from Vermont, Senator Leahy, the Satellite Home Viewer Extension Act of 2004. We are pleased to be joined in this effort by Senators DeWine and Kohl.

S. 2013 provides for a five-year extension of the statutory license for satellite carriers to make secondary transmissions of ``distant'' network and superstation television programs, which is set forth in section 119 of the Copyright Act.

The current section 119 license permits satellite carriers to provide subscribers that reside in unserved households with network programming from distant television markets. This section is set to expire at the end of 2004. The extension of this statutory license for an additional five years would continue to serve the many interests that the section 119 license seeks to advance. Most importantly, it assures that television viewers incapable of receiving local network stations off the air retain access to network programming via satellite. This is particularly important for viewers who live in rural areas and may be unserved by either local stations or cable carriers. Indeed, many of my constituents in Utah depend on satellite systems for their television reception. This statutory license also enables the satellite home delivery industry to effectively compete with cable companies, which have long enjoyed a statutory license of their own.

The limited extension also recognizes, however, that satellite carriers are still in the process of making local signals available to their subscribers, an important development for viewers and local broadcasters, as well as for the satellite carriers themselves. The Satellite Home Viewer Improvement Act of 1999, which I was proud to help draft, authorized for the first time the retransmission of local signals to satellite subscribers residing in those local markets. The roll-out of ``local-into-local'' service by satellite carriers continues at a substantial rate, giving subscribers more choices than ever and further strengthening the competition between cable and satellite carriers. In light of these continuing changes, an additional extension of the Section 119 license is warranted pending further developments in this area.

I recognize that there are likely to be other issues relating to the section 119 license that warrant consideration in connection with this reauthorization. I look forward to working with my colleagues and hearing from the interested parties on those matters in the coming months.

Mr. President, I rise today to introduce with my friend and colleague from Vermont, Senator Leahy, the Satellite Home Viewer Extension Act of 2004. We are pleased to be joined in this effort by Senators DeWine and Kohl.

S. 2013 provides for a five-year extension of the statutory license for satellite carriers to make secondary transmissions of ``distant'' network and superstation television programs, which is set forth in section 119 of the Copyright Act.

The current section 119 license permits satellite carriers to provide subscribers that reside in unserved households with network programming from distant television markets. This section is set to expire at the end of 2004. The extension of this statutory license for an additional five years would continue to serve the many interests that the section 119 license seeks to advance. Most importantly, it assures that television viewers incapable of receiving local network stations off the air retain access to network programming via satellite. This is particularly important for viewers who live in rural areas and may be unserved by either local stations or cable carriers. Indeed, many of my constituents in Utah depend on satellite systems for their television reception. This statutory license also enables the satellite home delivery industry to effectively compete with cable companies, which have long enjoyed a statutory license of their own.

The limited extension also recognizes, however, that satellite carriers are still in the process of making local signals available to their subscribers, an important development for viewers and local broadcasters, as well as for the satellite carriers themselves. The Satellite Home Viewer Improvement Act of 1999, which I was proud to help draft, authorized for the first time the retransmission of local signals to satellite subscribers residing in those local markets. The roll-out of ``local-into-local'' service by satellite carriers continues at a substantial rate, giving subscribers more choices than ever and further strengthening the competition between cable and satellite carriers. In light of these continuing changes, an additional extension of the Section 119 license is warranted pending further developments in this area.

I recognize that there are likely to be other issues relating to the section 119 license that warrant consideration in connection with this reauthorization. I look forward to working with my colleagues and hearing from the interested parties on those matters in the coming months.

Mr. President, my heart is heavy. Utah has once again given one of her sons to the cause of liberty.

Any loss of our fine young men or women is a tragedy. However, I believe this is particularly so with the loss of SP4 David J. Goldberg. He was a fine young man, loved dearly by his parents and wife. Though of a young age, he had already accepted the responsibilities of a man and had volunteered to serve his Nation during a time of war. This sense of responsibility, especially to his fellow soldiers, was one of the defining characteristics of his life. I have learned from the many who knew him and loved him that the specialist was always there for his fellow soldiers, frequently volunteering for extra assignments when others were not available. He will be greatly missed.

And so, another name has been added to Utah's List of Honor: SP4 David J. Goldberg. He joins an illustrious list that includes CPT Nathan S. Dalley, West Point graduate and a member of the Army's 1st Armored Division, SSG James W. Cawley, U.S. Marine Corps Reserve; SSG Nino D. Livaudais of the Army's Ranger Regiment; Randall S. Rehn, of the Army's 3rd Infantry Division; SGT Mason D. Whetstone of the U.S. Army and former Special Forces soldier Brett Thorpe.

Their names and the service they performed is something that I shall never forget. I shall always honor them and their families.

cpt nathan s. dalley, u.s. army

Mr. President, on November 17, God called home one of our best and brightest, CPT Nathan S. Dalley. At the young age of 27, Captain Dalley entered the hallowed list of those sons and daughters of Utah who have given their lives for their country.

Captain Dalley epitomized what a soldier should be: a born leader, mindful of his responsibilities, and eager to help and encourage others. He was exceptional in many ways, yet a decent man that treated everyone with respect. You see, I had the honor of

knowing Captain Dalley. I was proud to nominate him to the United States Naval Academy; however, he decided to pursue his career in public service with the Army and attended West Point. It should also be noted that he was also accepted to the Air Force Academy; remarkable achievements by any standard.

While preparing these remarks, I went through my files and found these words from this young man's Advanced Placement History teacher, who wrote a nomination recommendation:

As impressive as [Nathan Dalley's] academic qualities are,

I find his personal qualities to be even more impressive . .

. His kindness and friendliness to everyone set him apart in

the classroom, and in the larger school setting. In my class

he was a remarkably effective cooperative learner and peer

tutor. Nate understands that his contributions to the

community as a whole are as important as his personal

academic success, and I have every confidence that he will be

successful in his future pursuits.

Captain Dalley not only met these high expectations, but exceeded them.

To his mother, his sisters and his fiancee, I would like to say that, although I have no words to minimize your grief, I hope there is some comfort in knowing that all who knew your son respected him and knew him to be a good friend.

I will never forget Nathan Dalley or the others from Utah's list of honor. Their sacrifice will make a difference, their will be freedom in Iraq, and those who would destroy liberty will be brought to justice. So today we add CPT Nathan S. Dalley to this illustrious list that includes SSG James W. Cawley, United States Marine Corps Reserve; SSG Nino D. Livaudais of the Army's Ranger Regiment; Randall S. Rehn, of the Army's 3rd Infantry Division; SGT Mason D. Whetstone of the United States Army; SP4 David J. Goldberg of the Utah-based 395th Finance Battalion, Army Reserve and former Special Forces soldier Brett Thorpe.

We will honor them always and stand fast behind their families.