Floor Statements

Mr. President, I rise to introduce with my colleague, Senator John Kerry, the Arts Require Timely Services, ARTS, Act.

For some time, I have been working to improve the processing of visa petitions filed by nonprofit arts organizations. Unfortunately, years of delays, errors, and unpredictability have forced some U.S.-based nonprofit arts organizations from even trying to bring international artists into the United States. We must eliminate some of the bureaucratic barriers that have been negatively affecting performing artists.

There is no doubt that nonprofit arts organizations across the country engage foreign guest artists in their orchestras, theatres, and dance and opera companies. In my home state of Utah, I am aware that many organizations that will benefit from passage of the ARTS Act, including Brigham Young University, Cache Valley Center for the Arts, The Orchestra of Southern Utah, University of Utah, Murray Symphony Orchestra, Salt Lake Symphony, and the Utah Shakespeare Festival, to name a few.

The ARTS Act would apply only to temporary, nonimmigrant visas for foreign artists visiting the United States. The legislation would require U.S. Citizenship and Immigration Services to treat as a Premium Processing case, or a 15-day turn-around, free of additional charge, any nonprofit arts-related O- and P-visa petition that it fails to adjudicate within 30 days. In November 2007, the Congressional Budget Office issued a cost estimate for the ARTS Act, stating that the bill would have no significant cost to the Federal Government.

It is my hope that my colleagues will support passage of this legislation in the near future.

Mr. President, I rise to introduce with my colleague, Senator John Kerry, the Arts Require Timely Services, ARTS, Act.

For some time, I have been working to improve the processing of visa petitions filed by nonprofit arts organizations. Unfortunately, years of delays, errors, and unpredictability have forced some U.S.-based nonprofit arts organizations from even trying to bring international artists into the United States. We must eliminate some of the bureaucratic barriers that have been negatively affecting performing artists.

There is no doubt that nonprofit arts organizations across the country engage foreign guest artists in their orchestras, theatres, and dance and opera companies. In my home state of Utah, I am aware that many organizations that will benefit from passage of the ARTS Act, including Brigham Young University, Cache Valley Center for the Arts, The Orchestra of Southern Utah, University of Utah, Murray Symphony Orchestra, Salt Lake Symphony, and the Utah Shakespeare Festival, to name a few.

The ARTS Act would apply only to temporary, nonimmigrant visas for foreign artists visiting the United States. The legislation would require U.S. Citizenship and Immigration Services to treat as a Premium Processing case, or a 15-day turn-around, free of additional charge, any nonprofit arts-related O- and P-visa petition that it fails to adjudicate within 30 days. In November 2007, the Congressional Budget Office issued a cost estimate for the ARTS Act, stating that the bill would have no significant cost to the Federal Government.

It is my hope that my colleagues will support passage of this legislation in the near future.

Mr. President, I thank my colleague for his comments. He knows how deeply I respect him and how proud I am that he is the Republican leader on the Judiciary Committee. He will do a terrific job, and has been doing a terrific job, ever since he took over.

Considering a Supreme Court nominee is one of this body's most important responsibilities. I come at this wanting to support whomever the President nominates. The President has the right to nominate and appoint, and we have a right, it seems to me, to vote up or down one way or the other and determine whether we will consent to the nomination. We can also give advice during this time.

Only 110 men and women have so far served on our Nation's highest Court, and President Obama has now nominated Judge Sonia Sotomayor to replace Justice David Souter. Our constitutional rule of advise and consent requires us to determine whether she is qualified for this position by looking at her experience and, more importantly, her judicial philosophy.

President Obama has already described his understanding of the power and role of judges in our system of government. He has said he will appoint judges who have empathy for certain groups and that personal empathy is an essential ingredient for making judicial decisions. Right off the bat, President Obama's vision of judges deciding cases based on their personal feelings and priorities is at odds with what most Americans believe. A recent national poll found that by more than three to one, Americans reject the notion that judges may go beyond the law as written and take their personal views and feelings into account.

Judge Sotomayor appears to have endorsed this subjective view of judging. In one speech she gave several times over nearly a decade, she endorsed the view that there is actually no objectivity or neutrality in judging, but merely a series of perspectives. She questioned whether judges should even try to set aside their personal sympathies and prejudices in deciding cases, a view that seems in conflict with the oath of judicial office which instead requires impartiality.

We must examine Judge Sotomayor's entire record for clues about her judicial philosophy. She was, after all, a Federal district court judge for 6 years and has been a Federal appeals court judge for nearly 11 more. While we were told that this is the largest Federal judicial record of any Supreme Court nominee in a century, we are being allowed the shortest time in recent memory to consider it. The 48 days from the announcement to the hearing for Judge Sotomayor is more than 3 weeks-- more than 30 percent--shorter than the time for considering Justice Samuel Alito's comparable judicial record. There was no legitimate reason for this stunted and rushed timetable, but that is what the majority has imposed on us and that is where we are today.

I wish to take a few minutes this afternoon to look at Judge Sotomayor's judicial record on a very important issue to me and, I think, many others in this body: the right to keep and bear arms protected by the second amendment to the Constitution.

Some can be quite selective about constitutional rights--prizing some, while ignoring others. Some even trumpet rights that are not in the Constitution at all as more important than those that are right there on the page. It appears that Judge Sotomayor has taken a somewhat dim view of the second amendment. Two issues related to the scope and vitality of the right to keep and bear arms are whether it is a fundamental right and whether the amendment applies to the States as well as to the Federal Government. On each of these issues, Judge Sotomayor has chosen the side that served to limit, confine, and minimize the second amendment. She has done so without analysis, when it was unnecessary to decide the case before her, and even when it conflicted with Supreme Court precedent or her own arguments.

In a 2004 case, for example, a Second Circuit panel including Judge Sotomayor issued a short summary order affirming an illegal alien's conviction for drug distribution and possession of a firearm. The case summary and headnotes supplied by Lexis take up more space than the three short paragraphs proffered by the court. Judge Sotomayor's court rejected a second amendment challenge to New York's ban on gun possession in a single sentence relegated to a footnote with no discussion, let alone any analysis of the issue whatsoever. In fact, the court neither described the appellant's argument nor indicated how the district court had addressed this constitutional issue, but merely cited a Second Circuit precedent for the proposition that the right to possess a gun is ``clearly not a fundamental right.''

That is pretty short shrift for a constitutional claim. Last year, in the District of Columbia v. Heller, the Supreme Court held that the second amendment right to keep and bear arms is an individual rather than a collective right. But the Court also noted that by the time of America's founding, the right to have arms was indeed fundamental, and that the second amendment codified this preexisting fundamental right. Several months later, a Second Circuit panel including Judge Sotomayor affirmed a conviction under State law for possessing a weapon. Citing a 1886 Supreme Court precedent, the Second Circuit held that under the Constitution's privileges and immunities clause, the second amendment applies only to the Federal Government, not to the States. Whether correct or not, that holding was obviously enough to decide the issue in that particular case. Judge Sotomayor's court, however, went beyond what was necessary to further minimize the second amendment by once again characterizing it as something less than a fundamental right. The court said that there need be only a so-called rational basis to justify a law banning such weapons, a legal standard it said applies where there is no fundamental right involved. The court simply ignored and actually contradicted the Supreme Court's decision in Heller by treating the second amendment as protecting less than a fundamental right. In fact, the very 1886 precedent Judge Sotomayor's court cited to hold that the second amendment limits only the Federal Government recognized the preconstitutional nature of the right to bear arms. Her court never addressed these contradictions.

The Seventh Circuit has since also held that under the privileges and immunities clause, the second amendment limits only the Federal Government. But the Ninth Circuit last month held that under the Constitution's due process clause, the second amendment does indeed apply to the States. These courts gave this issue much more analysis than did Judge Sotomayor's court and neither found it necessary to address whether the right to keep and bear arms is fundamental. I wish Judge Sotomayor's court had shown similar restraint.

It appears that Judge Sotomayor has consistently and even gratuitously opted for the most limiting, the most minimizing view of the second amendment. No matter how distasteful, this result would be legitimate if it followed adequate analysis, if it properly applied precedent, and if it was necessary to decide the cases before her. In that event, it would not like it but probably could not quarrel with it. But as I have indicated here, this is not the case. There was virtually no analysis, her conclusion conflicted with precedent, and was unnecessary to decide the cases before her. This is not the picture of a restrained judge who has set aside personal views and is focusing on applying the law rather than on

reaching politically correct results. These are serious and troubling issues which go to the very heart of the role judges play in our system of government. These are elements not from her speeches but from her cases that give shape to her judicial philosophy. We have a written Constitution which is supposed to limit government, including the judiciary. We have the separation of government power under which the legislative branch may employ empathy to make the law, but the judicial branch must impartially interpret and apply the law. We have a system of self-government in which the people and their elected representatives make the law and define the culture. It is no wonder that most Americans believe that judges must take the law as it is, not as judges would like it to be, and decide cases impartially. That is exactly what judges are supposed to do if our system of ordered liberty based on the rule of law is to survive.

President George Washington said that the right to keep and bear arms is ``the most effectual means of preserving peace.''

Justice Joseph Story, in his legendary commentaries on the Constitution, called this right the ``palladium of the liberties of a republic.''

I, for one, am glad that our Founders did not give short shrift to this fundamental individual right.

Let me close my remarks this afternoon by saying that these are some of the questions that need answers, issues that need clarification, and concerns that need to be satisfied as the Senate examines Judge Sotomayor's record. Perhaps such answers, clarification, and satisfaction exist. My mind is open, and I look forward to the hearing in which these and many other matters no doubt will be raised. These are important issues that can't be shunted aside as though they are unimportant, and Judge Sotomayor needs to answer some of these issues and questions that we are raising as we go along.

I told her that we will ask some very tough questions and that she is going to have to answer them. She understands that, and I appreciate that.

With that, I yield the floor.

Mr. President, I rise today to introduce the Stop TARP Asset Recycling Act, or the STAR Act, a bill that would require any funds returned to the Treasury Department that were originally allocated under the Troubled Asset Relief Program, TARP, to be placed in the general fund rather than being put back into TARP. I am proud to say that this is a bipartisan bill, cosponsored by my friend from Arkansas, Senator Lincoln.

It is apparent that TARP has become a slush fund for the Obama administration to acquire banks, insurance companies and auto manufacturers. We need to ensure that the original purpose of TARP is maintained and Treasury is prevented from unilaterally and arbitrarily nationalizing our nation's private sector.

The Emergency Economic Stabilization Act, which was signed into law last October, created TARP. This act authorized TARP to purchase up to $700 billion in troubled assets from financial institutions ``to restore liquidity and stability to the financial system.'' However, since its inception,

TARP has taken on a different role in our free enterprise system. It seems to have become the go-to solution for all of our problems. It has been used to bail out banks, insurance companies and automobile manufacturers. What is next, Mr. President?

Some of our healthier banks are now returning this money because, I believe, of the unreasonable regulations that have been and could be placed on firms with TARP funds. While it is clear that proceeds from TARP sales must be placed in the general fund to pay down our increasing debt, it is unclear under the law whether or not the original investment from TARP must be placed in the general fund or can be recycled back into TARP. The latter option would result in an ever- revolving slush fund for TARP and could provide this administration with the means to pick and choose which company it would next like to nationalize.

For example, the Treasury Department recently used $30 billion to purchase up to 60 percent of General Motors' shares. If, in the future, Treasury sells these shares at a gain, let us say $32 billion, the $2 billion profit must be put back into the general fund, but it is unclear whether the original $30 billion investment recovered from the sale can be put back into TARP.

I do not believe any of my colleagues intended TARP to get this out of control. It is time that we reestablish the purpose of TARP by requiring Treasury to put the original investment back into the general fund. Congress must no longer stand by and watch Treasury amass an everlasting fund it can use to bail out any industry it deems ``too big to fail'' without congressional approval.

Ten large banks have recently received Treasury approval to repay $68 billion received under TARP. I believe now is the time to start restricting Treasury's access to these funds. My bill would force Treasury to put this money back into the general fund once it is used. It would not prevent Treasury from using up to $700 billion already authorized under TARP, but it would force Treasury to make sure that the taxpayers' investment is spent wisely.

The American taxpayer has been told to foot the bill for rescuing the financial sector, but now they are being forced to bail out any company at the discretion of the Department of Treasury. Many Utahns are saying it is time to be fiscally conservative, and I agree. So do millions elsewhere across the Nation.

I hope my colleagues would agree as well and support this legislation; otherwise, we have not only written a blank check to Treasury, but we have delegated an enormous amount of power over our free enterprise system. This money belongs to the people, not the Obama administration. I think it is time Congress acts to ensure that TARP is being used for its intended purpose.

Mr. President, I rise today to introduce the Stop TARP Asset Recycling Act, or the STAR Act, a bill that would require any funds returned to the Treasury Department that were originally allocated under the Troubled Asset Relief Program, TARP, to be placed in the general fund rather than being put back into TARP. I am proud to say that this is a bipartisan bill, cosponsored by my friend from Arkansas, Senator Lincoln.

It is apparent that TARP has become a slush fund for the Obama administration to acquire banks, insurance companies and auto manufacturers. We need to ensure that the original purpose of TARP is maintained and Treasury is prevented from unilaterally and arbitrarily nationalizing our nation's private sector.

The Emergency Economic Stabilization Act, which was signed into law last October, created TARP. This act authorized TARP to purchase up to $700 billion in troubled assets from financial institutions ``to restore liquidity and stability to the financial system.'' However, since its inception,

TARP has taken on a different role in our free enterprise system. It seems to have become the go-to solution for all of our problems. It has been used to bail out banks, insurance companies and automobile manufacturers. What is next, Mr. President?

Some of our healthier banks are now returning this money because, I believe, of the unreasonable regulations that have been and could be placed on firms with TARP funds. While it is clear that proceeds from TARP sales must be placed in the general fund to pay down our increasing debt, it is unclear under the law whether or not the original investment from TARP must be placed in the general fund or can be recycled back into TARP. The latter option would result in an ever- revolving slush fund for TARP and could provide this administration with the means to pick and choose which company it would next like to nationalize.

For example, the Treasury Department recently used $30 billion to purchase up to 60 percent of General Motors' shares. If, in the future, Treasury sells these shares at a gain, let us say $32 billion, the $2 billion profit must be put back into the general fund, but it is unclear whether the original $30 billion investment recovered from the sale can be put back into TARP.

I do not believe any of my colleagues intended TARP to get this out of control. It is time that we reestablish the purpose of TARP by requiring Treasury to put the original investment back into the general fund. Congress must no longer stand by and watch Treasury amass an everlasting fund it can use to bail out any industry it deems ``too big to fail'' without congressional approval.

Ten large banks have recently received Treasury approval to repay $68 billion received under TARP. I believe now is the time to start restricting Treasury's access to these funds. My bill would force Treasury to put this money back into the general fund once it is used. It would not prevent Treasury from using up to $700 billion already authorized under TARP, but it would force Treasury to make sure that the taxpayers' investment is spent wisely.

The American taxpayer has been told to foot the bill for rescuing the financial sector, but now they are being forced to bail out any company at the discretion of the Department of Treasury. Many Utahns are saying it is time to be fiscally conservative, and I agree. So do millions elsewhere across the Nation.

I hope my colleagues would agree as well and support this legislation; otherwise, we have not only written a blank check to Treasury, but we have delegated an enormous amount of power over our free enterprise system. This money belongs to the people, not the Obama administration. I think it is time Congress acts to ensure that TARP is being used for its intended purpose.

Mr. President, I have enjoyed this debate between these two great Senators. It is an interesting debate. I come down on the fact, if they are moved into any of our facilities in this country--and there are very few that could take them; in fact, I do not know of any that can take them that are not overcrowded right now--there will be the same screaming and shouting because they will not be treated anywhere near as well as they are treated down there at Guantanamo. No matter what we do that new day is not going to be a very happy day. It is far better to have this $200 million state-of-the-art facility that has been approved by international organizations as being better than expected, better than average facilities that would be acceptable--it is better to acknowledge that and keep treating them as decently and with as much dignity as we can, which is more than they will get in a supermax facility in this country or any other facility.

The supermax facilities are loaded with prisoners. They have more than they can handle now. Why would we put terrorists in among them, and why would we put them in this country where they can influence other people who are dissatisfied with life and have been discontented and have committed very serious crimes and allow them the recruitment possibilities they would have in our country? It doesn't make sense.

Why would we blow $200 million on state-of-the-art facilities and then spend another $80 million to shut it down? It seems like it is going a little bit too far because of the attempt of this administration to please, basically, people who support terrorists and the rest of the world.

Admittedly, there have been some outstanding people in our country who have come to the conclusion they should shut Guantanamo down, but they did so without having a real, viable alternative to Guantanamo. That is the issue that bothers me. I don't know of any State in the Union that wants these people within their prison system, assuming they could handle them. It means a lot more expense, a lot more problems. It means the possibility that they will be recruiting terrorists and helping criminals to become terrorists in our country. I can't begin to tell you the cost to this society if we do that. Be that as it may, the President seems to want to do that in spite of the fact that overwhelmingly the American people don't want him to do that.

state secret protection act

Mr. President, I rise today to express my reservations regarding the State Secrets Protection Act. Since one of the purposes of government is to provide a strong national defense, there are methods and sources that should never be disclosed for fear of irreparable damage to national security. The judicial branch has a long-documented history in addressing the state secrets privilege. Through the years, courts have affirmed time and again the privilege of the government to withhold information that would damage national security programs.

The modern origin of this doctrine was established in United States v. Reynolds. The Supreme Court created the Reynolds compromise, which stated that the privilege applies when the court is satisfied ``from all circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.'' That is what the Supreme Court has held, and it has continued to affirm this position with the utmost deference to the executive branch. Under Reynolds, the state secrets privilege cannot--and has not--been lightly invoked. The pending bill before the Judiciary Committee, known as the State Secrets Protection Act, would negate the Reynolds compromise and create a higher standard of proof for the government to assert the privilege.

My analysis of the legislation before us leads me to conclude that this bill will bring chaos to the balance struck by Reynolds. This bill lowers the deference that courts give to the executive branch in its assertion of the state secrets privilege. It raises the burden of proof that the government must meet to protect state secrets. The courts have built great flexibility into the state secrets doctrine to allow themselves the latitude to reach an effective compromise between the rights of litigants and the needs of national security. This is conducted on a case-by-case basis.

The writers of this bill want to redefine the standard to only afford protection under the state secrets privilege only when the disclosure of evidence is ``reasonably likely to cause significant harm'' to national security. This is a serious departure from the long established precedent of Reynolds. This has ramifications that would severely impede the protection of national security secrets. It is preposterous to abandon a standard that has more than 55

years of jurisprudential evolution and case law to support it. The Reynolds compromise says if there is reasonable danger then we secure the information. S. 417 says if it is reasonably likely, you can compromise the information. S. 417 fails to protect state secrets.

This state secrets privilege is never lightly used and never used with impunity. The assertion of this right must be made in writing by the head of the executive agency invoking the state secrets privilege. In recent cases this has sometimes been the Director of National Intelligence. Courts may conduct their own probe to ensure that the privilege has been invoke correctly. This probe will include an examination as to why the information being sought is needed to prove a plaintiff's case. Conversely, courts will examine as to why the information is critical to national security. After thoughtful review, a judge makes the determination on the production of evidence alleged to have been covered by the privilege. Not a law passed by politicians.

There is a myth that the Bush administration invoked the state secrets privilege more than any other previous administration. Rooted in this fallacy is the idea that the administration overreached in asserting the privilege to protect information not previously thought to be within its scope. This erroneous notion was propagated by not only the media, but by Members of this body. Most legal experts in the field of national security law have stated that it is not possible to collect accurate annual statistics for year-to-year comparisons. There is no ``batting average'' that can be empirically compared from one presidential administration to another.

To do so would incorrectly operate under the assumption that the government is presented with the same amount of cases each year in which the privilege can be asserted. It makes absolutely no sense to me to compare the administrations and judge them based on the total number of times they asserted the privilege.

The flow of litigation changes from year to year and varies from each administration, as does the invocation of the privilege. It varies because of the times and circumstances. We have been living in very difficult times and circumstances where we have to protect this country; circumstances we have never had to face before. Therefore, it is ludicrous that attempts to compare the rate of assertions of this privilege and arrive at the incorrect conclusion that because the Bush administration used this privilege it must be changed.

Unfortunately, for the authors of this bill, the data does not support the hypothesis that the Bush administration ever used the state secrets privilege in an attempt to dismiss complaints. Published opinions have revealed in the 1970s the government filed five motions. In the 1980s the government filed motions nine times. In the 1990s the government filed motions 13 times. Preliminary data available for the Bush administration indicate that the privilege was used 14 times.

Therefore, the impetus for the State Secrets Protection Act does not support the conclusion that the Bush administration blazed a new trial in national security law. On the contrary, the authors of this bill are the ones attempting to alter national security law. Keep in mind, we have been going through an extended war on terrorism, and, frankly, there is a need to protect national security. That is why we have the state secrets law.

In the first 100 days of the Obama administration--get that now--in the first 100 days of the Obama administration, the Department of Justice has invoked this privilege three times--in the first 100 days. This is the administration that was complaining about this. Now they found, when they faced reality and how important this privilege is, they changed their tune, and they should. I commend the administration and specifically the President for recognizing this.

The administration has picked up where the Bush administration left off in three pending cases: Al Haramain Islamic Foundation v. Obama, Mohammed v. Jepperson Data Plan, and Jewell v. NSA. During an interview of a widely revered liberal journalist, Attorney General Eric Holder stated that in his opinion the Bush administration--get this word-- ``correctly'' applied the state secrets privilege in these cases.

If this legislation is passed in its present form, private attorneys would be given access to highly classified declarations before a judge rules on whether the state secrets privilege should prevent such a disclosure. Can you imagine the harm that could come to our country? It is hard to believe that anybody would be advocating this in the Senate with what we have been going through and the special wars that we have been going through and the special type of terrorists that we have been having to put up with.

This legislation--lousy legislation--will have the effect of incentivizing lawsuits by rewarding attorneys who file lawsuits with a security clearance. I remember one case in New York where the attorney herself was convicted because she was passing on information.

Now this clearance will grant these attorneys access to classified information that if divulged could reasonably harm our national security interests. It is bad enough trying to keep secrets around here, let alone with people who really should not be qualified for that type of classification. Does an attorney need absolute proof of some violation of law to file a lawsuit to learn details about classified programs? No, under this bill, they simply need to make an accusation. Any accusation will do.

Ensuring national security programs stay classified is critical to our citizens' continued safety. Under this legislation, private attorneys, regardless of the merits of their lawsuits, will be given access to our Nation's secrets, secrets that are critical to the protection of our country. It is not hard to see how this legislation could seriously harm national security.

It is hard for me to see why anybody would be arguing for this legislation. It is a legitimate concern that ideological attorneys would be willing to compromise national security interests and secrets and disclose classified information. There are at least two recent instances involving the disclosure of classified information. These are recent. I am just talking about the recent ones, and then only two of them. There may be more.

In May 2007, a Navy JAG lawyer leaked classified information pertaining to Guantanamo detainees to a human rights lawyer. I find it disturbing that a U.S. military officer who is sworn to protect this Nation would disseminate classified information. But an even more troubling scenario is posed by private attorneys. In 2005, a more alarming case came to light when a civilian defense counsel was convicted of providing material support for a terrorist conspiracy by smuggling messages from her client, a Muslim cleric convicted of terrorism, to his Islamic fundamentalist followers in Egypt.

Do you know how difficult it was to convict an Islamic fundamentalist religious leader? Yet this man was convicted, and rightly so. His attorney compromised these matters. In press interviews after the attorney was convicted, she said, ``I would do it again--it's the way lawyers are supposed to behave.''

She also said that ``you can't lock up the lawyers. You cannot tell the lawyers how to do their job.''

I am not implying that all lawyers would act so egregiously. What I am saying is there is a profound reason why the government has classifications for categorizing the sensitivity of information that is vital to national security. Providing top secret clearances to persons outside the employment of the United States is a colossal blunder. This bill will allow that.

The courts recognize the executive branch's superior knowledge on military, diplomatic, and national security matters. Judges do not relish the thought of second-guessing decisions made by officials who are better versed on matters that may be jeopardized by allowing attorneys access to classified materials. Similarly, Congress should not relish the thought of second-guessing the judgment of courts that have given careful consideration regarding the appropriate legal standards to balance the interests of judges and national security programs.

The State Securities Protection Act does not protect state secrets. This bill upsets the judicially developed balance between protection of national security and private litigants' access to secret

documents. The judicial branch has crafted a state secrets doctrine to give judges the flexibility to weigh these interests with appropriate deference to the executive branch. This judicially crafted doctrine is more than sufficient and has evolved from the 1912 case of Firth Sterling to Reynolds to current cases such as Hepting and Al Masri.

The State Secrets Protection Act is unnecessary and potentially harmful to national security. Unless serious changes are made to this legislation and the amendments offered by myself and my Republican colleagues are adopted, I cannot in good conscience vote this bill out of committee. I do not know how any Senator sitting in this body can do so.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the distinguished Senator from Missouri be given a couple of minutes to make his speech for the record and that afterwards I immediately be given the floor.

Mr. President, I wish my colleague to understand that I may take longer than 10 minutes, so I ask unanimous consent for that.

Mr. President, I wish to associate myself with the remarks and concerns expressed earlier by both the Judiciary Committee's ranking member, Senator Sessions, and the distinguished Republican leader and whip, Senators McConnell and Kyl.

The White House talking points tell us that the Supreme Court nomination, Judge Sonia Sotomayor, has more Federal judicial experience than any Supreme Court nominee in a century. My friends on the other side of the aisle have taken, used, and aggressively circulated these talking points. I assume by stressing judicial experience they are saying that this overwhelmingly deep, broad, and vast judicial record provides the basis on which to judge the nominee's fitness for the Supreme Court. Well, that coin has two sides. The flip side is that a 17-year judicial career that has produced thousands of judicial decisions takes time to evaluate adequately and properly to consider. The question is whether the majority is at all interested in a genuine, serious, deliberative process by which the Senate can fulfill one of our most important constitutional responsibilities. This process should be fair and thorough. Instead, it is being rigged and rushed for no apparent reason other than that the majority can do so.

This process should be bipartisan, and instead it is becoming entirely partisan. The ranking member was not even given the very same courtesy that the chairman was given when he was in that position at the time of the previous Supreme Court nominations.

Let me focus on the process followed to consider the previous Supreme Court nominee, Justice Samuel Alito. He had served on the U.S. Court of Appeals for the Third Circuit for more than 15 years when he was nominated to the Supreme Court. This is 5 years longer than Judge Sotomayor has served on the Second Circuit and nearly the same as Judge Sotomayor's combined judicial service on both the district and circuit courts.

The other party demanded and was granted 70 days from the announcement of the nomination to the hearing to study then-Judge Alito's record. The Senator from Pennsylvania, Mr. Specter, was chairman at the time. He made no unilateral partisan announcements. He imposed no truncated, limited timeframe. No, he consulted the ranking member, and they agreed there would be 70 days to study that voluminous judicial record.

Oh, what a difference an election makes. With the unilateral partisan edict announced today by the chairman, we are being given only 48 days to study the same lengthy record. We are told we must consider the largest judicial record in a century in the shortest time in modern memory, and that is simply not enough. It is not enough to do the job right, and I would remind my friends on the other side that it was their leaders who once said that it is more important to do it right than to do it fast. That was when there was a Republican President and a Republican Senate. Are we to assume from the unilateral imposition of a stunted and inadequate process that the majority today no longer cares that the confirmation process be done right, only that it be done fast?

The chairman has actually suggested that he really has no choice, that some intemperate criticism by a few people has somehow forced his hand. He cannot be serious about this. This nominee has the full force and weight of no less than the entire administration of a currently popular President, a compliant media, and the largest partisan congressional majority in decades to come to her defense. Interest groups are mobilizing, lobbying campaigns are in full swing, Web sites are already in operation. With all of that, are we to believe a few ill-considered remarks by a few people outside this body are enough to cut the confirmation process off at the knees? Are we to believe this is all it takes to set aside fairness, to undercut the ability of the Senate to do its confirmation duty, and to inject this degree of partisanship and rancor into the process? Give me a break.

This is choice, plain and simple, and it is the wrong choice. The distinguished Senator from New York, Mr. Schumer, has said that Senators on our side of the aisle oppose this nominee at their peril, as if there is any peril in fairly applying basic principles and standards to this as well as to other nominees. But the distinguished majority leader has apparently said the same thing to Senators on this side of the aisle, literally daring any of them to vote against this nominee. That is a strange tactic, indeed, especially so publicly and so early on in the process. It makes me wonder whether there are concerns, even on the majority side, that the leadership simply cannot allow to be expressed.

I urge my friends on the other side to reconsider and not be intimidated and not be pushed around. There is more than enough time to do the confirmation job right, to have a fair and thorough process that can have a confirmed Justice in place when the Supreme Court begins its term in October. There is no need gratuitously to further politicize the confirmation process. Injecting such partisanship at the beginning easily can result in greater conflict and division further down the confirmation road, and that is not good for Judge Sotomayor or anybody else in this body. That is not in the best tradition of the Senate, it is not how the Supreme Court nominations have been considered in the past, and it is not the way we should do this today.

I have been informed there have been some 4,000 decisions. My gosh, it is going to take some time to go through those decisions.

I believe we ought to be fair in this body, and fairness means giving enough time to be able to do the job properly and to get it done within a reasonable period of time and not be pushed in ways that really don't make sense.

Mr. President, I wish to take a few minutes now to talk about the perils of creating a government plan on American families and health care.

I am very disappointed that the President and my friends on the other side of the aisle have chosen to pursue the creation of a new government-run plan--one of the most divisive issues in health care reform--rather than focusing on broad areas of compromise that can lead us toward bipartisan reform in health care legislation.

Yesterday, I spearheaded a letter with my Republican Finance Committee colleagues urging the President to strike a more conciliatory tone on health care reform. Having played a profound role in almost every major health care legislation for the last three decades and having worked repetitively in a bipartisan manner with everyone from Senators Kennedy and Dodd to Congressman Waxman, I know something about getting things done for our families in a thoughtful manner. You advance legislation by focusing on areas of compromise, not strife.

First and foremost, let me make this point again, even though I am starting to sound like a broken record: Reforming our health care system to ensure that every American has access to quality, affordable, and portable health care is not a Republican or Democratic issue; it is an American issue. When we are dealing with one-sixth of our economy, it is absolutely imperative that we address this challenge in a bipartisan manner. Anything less would be a huge disservice to our families and our Nation.

Clearly, health care spending continues to grow too fast. This year will mark the biggest ever 1-year jump in health care's share of our GDP--a full percentage point to 17.6 percent. You can think of this as a horse race between costs and resources to cover these costs. The sad reality is that costs win year after year.

Growing health care costs translate directly into higher coverage costs. Since the last decade, the cost of health coverage has increased by 120 percent--three times the growth of inflation and four times the growth of wages. It is not the only problem, but cost is one part of the reason more than 45 million Americans do not have health insurance.

I believe we need to do more to ensure we achieve universal and affordable access to quality health care for every American. We can do this by reforming and improving the current system. However, the creation of a government plan is nothing more than a backdoor approach to a Washington-run health care system.

At a time when major government programs such as Medicare and Medicaid are already on a path to fiscal insolvency, creating a brand new government program will not only worsen our long-term financial outlook but also negatively impact American families who enjoy the private coverage of their choice.

To put this in perspective, as of this year, Medicare has a liability of almost $39 trillion, which in turn translates into a financial burden of more than $300,000 per American family.

In our current fiscal environment, where the government will have to borrow nearly 50 cents of every dollar it spends this year, exploding our deficit by almost $1.8 trillion, let's think hard about what we are doing to our country and our future generations.

The impact of a new government-run program on families who currently have private insurance of their choice is also alarming. A recent Milliman study estimated that cost-shifting from government payers, specifically Medicare and Medicaid, already costs families with private insurance nearly $1,800 more each year. Creating another government-run plan will further increase these costs on our families in Utah and across the country.

Let me make a very important point. A new government plan is nothing more than a Trojan horse for a single-payer system, a one-size-fits-all government-mandated system, where we are going to put bureaucrats between you and your doctors. Washington-run programs undermine market- based competition through their ability to impose price controls and shift costs to other purchasers.

The nonpartisan Lewin Group has concluded that a government plan open to all, and offering Medicare-level reimbursement rates, would result in 119.1 million Americans losing their private coverage. This is almost three times the size of the entire Medicare Program, which is already in trouble. More important, this would run contrary to the President's own pledge to the American families about allowing them to keep the coverage of their choice. So far as I know, no one has disputed the Lewin Group. They are well known as one of the most nonpartisan groups in the country.

Proponents of this government plan seem to count on the efficiency of the Federal Government in delivering care for American families, since it is already doing such a great job with our banking and automobile industry.

Medicare is a perfect example. It is on a path to fiscal meltdown, with Part A already facing bankruptcy within the next decade, and we all know it. It underpays doctors by 20 percent and hospitals by 30 percent, compared to the private sector, forcing increasing numbers of providers to simply stop seeing our Nation's seniors. According to the June 2008 MedPAC report, 9 out of 10 Medicare beneficiaries have to get additional benefits beyond their Medicare coverage--9 out of 10.

We have a broken doctor payment system in Medicare that has to be fixed every year, so seniors can continue to get care. This year alone, this broken formula calls for a more than 20-percent cut. I can keep going, but the point is simple: Washington and a government-run plan is not the answer.

Talk about creating problems. The supporters of the government plan

know these facts. So they are trying a different approach by claiming that the government plan is simply competing with the private sector on a so-called level playing field. Give me a break.

History has shown us that forcing free market plans to compete with these government-run programs always creates an unlevel playing field and dooms true competition.

The Medicare Program, once again, provides an important lesson. As a political compromise, Medicare was set up in 1965 to pay doctors and hospitals the same rates as the private sector. Faced with rising budget pressures, Congress quickly abandoned this level-playing-field approach and enacted price limits for doctors and hospitals. Today, as I have said, Medicare payments are 20 percent less for doctors and 30 percent less for hospitals compared to the private sector. I have been told by doctors from Utah and across the country that if this continues, they will simply stop seeing patients altogether. A number of them are ready to quit the profession. I cannot tell you the problems that will arise if we go to a government-run program--a Trojan horse to lead us to a government-mandated, government-run, one-size- fits-all massive program.

In his March, 2009, testimony before the House Energy and Commerce Committee, Doug Elmendorf, the Director of the nonpartisan Congressional Budget Office, testified that it would be ``extremely difficult'' to create ``a system where a public plan [government plan, if you will] could compete on a level playing field'' against private coverage. The end result would be a Federal Government takeover of our health care system, taking decisions out of the hands of our doctors and our patients, placing them in the hands of a Washington bureaucracy, and inserting that bureaucracy right between them.

Here is the bottom line: We are walking down a path where stories such as Jack Tagg's could become increasingly common in our great country. In 2006, Jack Tagg, a former World War II pilot, suffered from a severe case of macular degeneration. The regional government bureaucrats rejected his request for treatment, citing high costs, unless the disease hit his other eye also. It took 3 years to overturn that decision--3 years, while he had to suffer, when we could have done this in a better way.

Let's remember that a family member with cancer in an intensive care unit would probably neither have the time nor the resources to appeal such an egregious bureaucratic decision. We need to remember the real implications of these policies--not simply in terms of political spin and special interests but in terms of its impact on real people, who are mothers, fathers, husbands, wives, brothers, sisters, and children.

Similar to the ill-conceived stimulus legislation and flawed auto bailout plan, health care reform has the potential of simply becoming another example of the Democrats justifying the current economic turmoil to further expand the Federal Government.

To enact true health care reform, we have to come together as one to write a reasonable and responsible bill for the American families who are faced with rising unemployment and out-of-control health care costs.

I do look forward to working together to transform our sick-care system into a true health care system. I continue to hold deep in my heart that we will move beyond these beltway games and work together in a bipartisan way to fix Main Street. The time is now and I am ready.

I am absolutely positive the way to go is not with a government-run, government-mandated health care program, which will bring the lowest common denominator in health care to everybody. I think you are going to find that the costs are so astronomical, the way it is being formed in the HELP Committee, in particular, that we are leaving a burden on our kids and grandkids and great grandkids that is going to be insurmountable.

With that, I yield the floor.

If the Senator will yield, I am very appreciative of the Senator's remarks. I have spent 33 years working on virtually every health care bill that has come up. We have always done it in a bipartisan way. I certainly enjoy working with the distinguished Senator from Oregon. He is one of the more thoughtful people in health care on the Finance Committee and in this whole body. I am grateful to him for wanting to work together and in a bipartisan manner. We need to do that. You cannot work on a partisan basis on issues regarding the American economy. There are some in the White House and on the Democratic side who want to do that. I am grateful the Senator from Oregon is not one of them. I, personally, will do everything in my power to try to put together a bipartisan approach to this that would work and would put the best of the private sector in with the best of the government sector and work for our folks in this country. When you are talking about one-sixth of the American economy, if we do that, it will be for the betterment of the country and for everybody. If we go in a partisan, one-size-fits-all way--especially, in my opinion, with a government-run plan--we are going to be anything but good as far as health care is concerned. I am grateful for the Senator's kind remarks.

I thank the Senator.

Madam President, I rise today to share my views on H.R. 1256, the Family Smoking Prevention and Tobacco Control Act of 2009.

First and foremost, I want to make it perfectly clear that I am deeply concerned about the dangers of smoking, particularly when it comes to children and teenagers. We must do everything we can to discourage our youth from using tobacco products; because once they start, it is very difficult to stop. Long term use of tobacco causes serious health conditions such as lung cancer, emphysema, or COPD-- Chronic Obstructive Pulmonary Disease. There is no question that tobacco is a killer.

And not only does tobacco kill, it also results in a tremendous amount of unnecessary health care costs. Experts believe tobacco costs society billions of dollars each year. Even second-hand tobacco smoke harms those who do not smoke themselves but are merely around those who do.

Do I believe that tobacco should be regulated? Of course I do. But do I believe that the Food and Drug Administration is the appropriate agency to regulate tobacco? Absolutely not. Let me take a few minutes to explain why I feel so strongly about this issue.

The FDA's core mission is to promote and protect public health. As a member and former chairman of the Senate Health, Education, Labor and Pensions Committee, the committee with jurisdiction over the Food, Drug and Cosmetic Act, I feel very strongly that the FDA should have sufficient resources to do its current job before taking on new responsibilities. Over the years, I have worked hard to get the FDA the funding it needs to protect consumer health; approve new drugs, biologics and medical devices; and protect our Nation's food supply.

For years, FDA scientists have pleaded with Congress to give the agency more resources. In fact, according to the Alliance for a Stronger FDA, the FDA's budget is small--$2.04 billion was appropriated for the agency and it collects nearly $600 million in user fees. Eighty-three percent of the FDA's costs are staff-related. The Alliance, whose membership includes three former Secretaries of Health and Human Services and six former FDA Commissioners, believes that the FDA's appropriation must increase by about $100 million per year just in order to stay even with increased costs--anything lower will result in decreased staff and programming. In addition, the Alliance believes that the FDA's base has eroded even while it was given new responsibility and ``operates in a world of increased globalization and scientific complexity.'' To put it in perspective, the FDA receives less funding than its local school district. Montgomery County, MD, public schools received $2.07 billion in fiscal year 2009; the FDA received $2.04 billion in appropriated funds that same year.

Recently, we heard about peanut products tainted with salmonella. Hundreds of people became sick and nine people lost their lives. In 2008, consumers were sickened by salmonella in peppers and possibly tomatoes. Before that, it was spinach tainted with E. coli that was sold all across the United States.

Overall, the FDA has done good work on food safety, but it also needs more inspectors and more resources to conduct inspections. In fact, on March 14, President Obama stated that about 95 percent of the Nation's 150,000 food processing plants and warehouses go uninspected each year.

Unfortunately, the FDA struggles with more than just food. On the pharmaceutical side, the FDA has had to deal with safety issue after safety issue. From the withdrawal of Vioxx, to new data about suicide and SSRI antidepressants, FDA has been working to match its performance to its mission. We all know that it still has a way to go.

If the FDA is given the responsibility of regulating tobacco products, it will require the agency to expand considerably. A completely new center, the Center for Tobacco Products, will be established within the FDA and new scientific experts will have to be hired for that new Center. These individuals--epidemiologists, toxicologists and medical reviewers--could be working on evaluating cancer drugs, or new vaccines, or tracing outbreaks of food borne illness--areas where, quite frankly, they are desperately needed. Instead, they will be wasting time, effort, and money in attempt to make a deadly product slightly less deadly.

The former FDA commissioner, Dr. Andrew von Eschenbach, expressed serious concerns in 2007 that this bill does not provide enough funding for an expansion of the FDA and does not authorize appropriations for start-up costs. He also expressed concerns that regulating tobacco would jeopardize FDA's public health mission. Dr. von Eschenbach was right--it makes no sense to expand this agency and divert its attention to tobacco products. I simply cannot understand why Congress is giving this agency any additional duties without a clear idea, in my opinion, about how much money it will cost to carry them out. Although this legislation is funded by tobacco company user fees, how do we know that enough money will be collected? And, while it is my understanding that the substitute big being considered by the Senate will require performance reports on these user fees every 3 years, I feel that these reports should be filed on an annual basis so that we in Congress may make necessary adjustments if the program is running out of money.

Another concern I have is the impact that these user fees could have on public health programs like the State Children's Health Insurance Program--CHIP--which relies on tobacco taxes for its financing. For that reason, I filed an amendment calling for the Comptroller General of the Government Accountability Office to study whether this bill will have an impact on public health programs. It is my hope that this amendment will be accepted by my colleagues.

Finally, I want to talk in more detail about the mission of the FDA, which is to protect public health. I feel that by requiring the FDA to regulate tobacco, we are putting the agency in direct conflict of this important mission. Here are two undeniable truths about tobacco: (1) tobacco is known to cause serious illnesses and death, and (2) tobacco does not have any health benefits whatsoever. So, I ask you, what sense does it make to have the FDA regulate tobacco? How does an agency in charge of protecting public health regulate tobacco, a product that is inherently unsafe?

In fact, when the bill was being considered by the Senate HELP Committee a few weeks ago, I cosponsored and strongly supported Senator Enzi's amendment to have the Centers for Disease Control and Prevention regulate tobacco products. Unlike the FDA, the CDC has the infrastructure, personnel and mission to take on tobacco. The CDC operates programs that reduce the health and economic consequences of the leading causes of

death and disability, thereby ensuring a long, productive, healthy life for all people. For those reasons, I felt that the CDC's mission was far more suited to the regulation of tobacco. Unfortunately, that amendment was not approved by HELP Committee members and, as a result, the Senate is now considering a bill that would designate the FDA as the regulator of tobacco products.

In conclusion, I am probably one of the FDA's strongest supporters in Congress. Back in the 1990s, I introduced legislation that created the White Oak campus; the unified FDA campus which I envisioned would bring prestige back to the agency. This campus is on track to be completed in 2012. I wanted FDA to be able to attract the brightest minds so we could get the best researchers in the country working together in order to ensure the safety of our drugs, medical devices and food supply. Dr. Margaret Hamburg, the newly confirmed FDA Commissioner has impressed me with her strong vision for the future of the FDA. It is my hope that by adding the regulation of tobacco to the FDA's portfolio, that vision does not go off course.

I want to make one thing perfectly clear--I support the intent of this bill which is to stop our young people from picking up that first cigarette and to protect public health by regulating tobacco. That being said, it is my hope that some of the concerns that I have raised will be carefully considered and addressed before this legislation is signed into law.

Mr. President, I am pleased to join my colleague from Illinois and fellow Judiciary Committee member, Senator Durbin, in introducing the Judicial Survivors' Protection Act of 2009. This legislation will provide more Federal judges with an opportunity financially to provide for their own families after their death. Under this legislation, the cost of this opportunity will be borne by the judges themselves, not by the taxpayers, and I hope all my colleagues will support it.

Congress created the Judicial Survivors' Annuity System in 1956. It allow Federal judges to devote a portion of their salary toward an annuity for their spouses and dependent children upon the judges' death. Enrollment in JSAS is also necessary for a judge's family members to continue receiving health insurance coverage under the Federal Employees Health Benefits Program.

The catch is that judges must enroll within 6 months of taking judicial office or 6 months of marriage while in office. Approximately 40 percent of current Federal judges did not do so, some for financial reasons. Many judges who had been in private practice, for example, took a substantial pay cut to enter public service. The enrollment period for JSAS was the very time when they and their families were making that financial adjustment, when maximizing current income was the priority. This is just one of the scenarios which have led judges to decline enrollment in JSAS, and it will become more likely, more pronounced, as Congress refuses to give Federal judges a much needed pay raise.

Congress may authorize an open-season period for sitting judges to enroll but has not done so since 1992, the year after Congress last gave Federal judges a real salary increase. The legislation we introduce today would provide for such a one-time, 6 month period for sitting Federal judges to enroll in JSAS. Doing so would not cost the taxpayers anything because these judges would commit a higher percentage of their salary than those who enroll during the ordinary period.

Congress' refusal to provide appropriate judicial compensation limits judges' ability to provide for their families financial future. Providing this one-time opportunity for judges to enroll in JSAS, therefore, is almost the least we can do. It will also allow more judges to ensure that their family members will continue receiving health insurance coverage. And since it will not cost the taxpayers anything, I think it is a win-win which I trust will receive wide bipartisan support.

Mr. President, I am pleased to join my colleague from Illinois and fellow Judiciary Committee member, Senator Durbin, in introducing the Judicial Survivors' Protection Act of 2009. This legislation will provide more Federal judges with an opportunity financially to provide for their own families after their death. Under this legislation, the cost of this opportunity will be borne by the judges themselves, not by the taxpayers, and I hope all my colleagues will support it.

Congress created the Judicial Survivors' Annuity System in 1956. It allow Federal judges to devote a portion of their salary toward an annuity for their spouses and dependent children upon the judges' death. Enrollment in JSAS is also necessary for a judge's family members to continue receiving health insurance coverage under the Federal Employees Health Benefits Program.

The catch is that judges must enroll within 6 months of taking judicial office or 6 months of marriage while in office. Approximately 40 percent of current Federal judges did not do so, some for financial reasons. Many judges who had been in private practice, for example, took a substantial pay cut to enter public service. The enrollment period for JSAS was the very time when they and their families were making that financial adjustment, when maximizing current income was the priority. This is just one of the scenarios which have led judges to decline enrollment in JSAS, and it will become more likely, more pronounced, as Congress refuses to give Federal judges a much needed pay raise.

Congress may authorize an open-season period for sitting judges to enroll but has not done so since 1992, the year after Congress last gave Federal judges a real salary increase. The legislation we introduce today would provide for such a one-time, 6 month period for sitting Federal judges to enroll in JSAS. Doing so would not cost the taxpayers anything because these judges would commit a higher percentage of their salary than those who enroll during the ordinary period.

Congress' refusal to provide appropriate judicial compensation limits judges' ability to provide for their families financial future. Providing this one-time opportunity for judges to enroll in JSAS, therefore, is almost the least we can do. It will also allow more judges to ensure that their family members will continue receiving health insurance coverage. And since it will not cost the taxpayers anything, I think it is a win-win which I trust will receive wide bipartisan support.

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

Madam President, I, again, rise to express my concerns regarding the closure of the Guantanamo Bay Detention Center. The closure of this Nation's only secure strategic interrogation center puts our Nation at risk.

I am uncompelled by the Obama administration's legal and policy reasons to justify closing Guantanamo within the next 8 months. Currently, there is no suitable replacement for Guantanamo. This $200 million facility is secure and is a state-of-the-art facility. Moreover, it is located away from population centers and staffed by trained military personnel. Guantanamo has no equal within the continental United States.

On March 19, 2009, it was reported by the Wall Street Journal that Attorney General Eric Holder made reference to the idea that the Department of Justice would bring some of the detainees to this country and release them. The Attorney General's statement that he is open to a policy of outright release of terrorists brought to the United States is disturbing, coming as it does from the senior administration official charged with executing this plan. It also does not dispel my grave concerns about closing Guantanamo Bay.

Indeed, the manner in which this closure has been orchestrated has provided few details and little assurance about how this facility will be closed within the next 8 months and what will be the superior alternative to Guantanamo.

Of the approximately 240 detainees remaining at Guantanamo, 174 of them received or conducted training at al-Qaida camps and facilities in Afghanistan. There is direct evidence that 112 participated in armed hostilities against U.S. or coalition forces. Furthermore, 64 of these remaining detainees either worked for or had direct contact with Osama bin Laden, and 63 of the remaining detainees had traveled to Tora Bora.

In 2001, the Tora Bora cave complex became the fallback position for the Taliban and was believed to be the hideout for Osama bin Laden. Not just anyone could gain access to these caves. We have gone through these particular features. There were 174 who received training in al- Qaida camps in Afghanistan; 112 participated in armed hostility with the U.S. or coalition forces; 64 worked for or had contact with Osama bin Laden; 63 traveled to Tora Bora.

The administration has stated that they will bring the Chinese Uighurs to

the United States for the sole purpose of releasing them. All 17 Uighurs have demonstrable ties to the East Turkistan Islamic Movement, the ETIM, a designated terrorist organization since 2004. The ETIM made terrorist threats against the 2008 Beijing Olympics, and, regardless of previous terrorist activity, any member of this organization would be ineligible to enter the United States, pursuant to Federal immigration law, let alone be allowed to roam this country.

One of the trainers for these Chinese nationals was Hassan Mahsun, an associate of Osama bin Laden. The Uighurs traveled to Afghanistan by using al-Qaida resources. They were also lodged in al-Qaida safe houses and terrorist training facilities. This alone is indicative that these terrorists were vetted and respected enough to be allowed access to al- Qaida havens.

Title 8, section 1182 of the United States Code defines inadmissible aliens. Under this law, any alien who has engaged in terrorist activity or is a representative of a terrorist organization is ineligible to enter the United States. The ``Guantanamo'' Uighurs have certainly met this definition, but to completely address this argument, I want to take this analysis one step further. The law also states that ``any alien who has received military-type training from or on behalf of any organization that, at the time the training was received, was a terrorist organization, is ineligible to enter the country.''

That is what this says:

In general any alien who has received military training as

identified in section 2339 D(c)(1) of title 18, from or on

behalf of any organization that, at the time training was

received, was a terrorist organization as defined in clause

Mr. President, in recent days, the White House, the news media, and many in this Chamber have taken the opportunity to reflect on the first 100 days of President Barack Obama's administration. I rise today to offer my comments and evaluation in light of this milestone.

Admittedly, it is somewhat arbitrary to use the 100-day point in a Presidency as a time for evaluation.

Indeed, success in the first 100 days doesn't guarantee success in the next 100 days or for the rest of a Presidential term. Likewise, struggles and failures in the first 100 days do not necessarily predicate similar troubles in the future. It is certainly the case that, as with most administrations, the defining moments of this current President are yet to be written.

That said, President Obama's first 100 days have provided us with some unique insight into this President and how he intends to govern. It is this insight that informs my comments here today.

The President came into office facing unprecedented expectations. While some of these expectations may have been unfairly placed upon him by some starry-eyed supporters who believed him to be a politician, a movie star, and a religious figure all in one, he brought much of the pressure upon himself. President Obama campaigned on a platform of big promises, not the least of which was a promise to change the tone here in Washington and move the country past the bitter partisan divides that has kept us polarized in recent years.

But as any reasonable person observing U.S. politics will concede, we are not on that path yet.

The supporters of the President will argue that he cannot accomplish such

a daunting task alone and I tend to agree with them. However, so far, the President has done very little on his end to make good on that promise and that has been his biggest failing during the first 100 days.

The problems began right out of the gate when the Congress debated the SCHIP reauthorization language. I was an original author of the SCHIP program and had been one of its strongest supporters. In fact, over the years, a number of Republicans in this Chamber--including myself and Senator Grassley--had endured a lot of criticism among our more conservative constituents over our support for the SCHIP program.

During the 110th Congress, we worked with the Democratic majority to forge a bipartisan compromise in order to ensure widespread support for reauthorizing this program. This included some common-sense proposals to ensure the program was an efficient use of taxpayer funds. Yet, when the 111th Congress convened, the President and his supporters in Congress left that compromise on the side of the road and instead chose to push through a more expansive and liberal version of the bill. In the end, the bill passed on a vote divided on partisan lines.

So, in the earliest days of his administration, the President was presented an easy opportunity to place unity and bipartisanship ahead of a far-left Democratic agenda and, unfortunately for the SCHIP program, he balked and, in doing so, he set the tone for the early months of his Presidency.

Shortly thereafter, the President came to Congress with a proposed ``stimulus package'' at a pricetag of nearly a $1 trillion. Although it was eventually reduced to $790 billion, the ``stimulus package'' basically read like a wish-list of long-time Democratic policy priorities and had very little to do with actually stimulating the economy. For example, small businesses, which create 70 percent of the new jobs in this country, went virtually unnoticed in the President's ``stimulus'' bill, which focused more on expanding the Federal Government and providing ``tax credits'' for millions of Americans who don't pay any taxes.

The President had an opportunity to work with Republicans on the ``stimulus'' and include ideas that are proven to have immediate economic impacts--like reducing the highest corporate tax rates in the industrialized world to keep businesses in the U.S. or tax credits to address the housing crisis.

Instead, he chose to cut Republicans almost entirely out of the negotiations and was content to have the support of only three members of the minority voting in favor, one of whom officially joined the majority earlier this week.

Almost as disappointing as the substance of the bill was the President's tactics in debating the ``stimulus.'' Rather than acknowledging sincere policy differences between Democrats and Republicans, he accused the Republicans of wanting to do nothing, which was anything but the truth. This too has become an unfortunate, yet commonly used, tactic used by the Obama administration.

The partisan recklessness continued into the debate over the President's budget. I have been in the Senate now for 33 years and I can say without reservation that President Obama's first budget is the most poorly crafted budget I have ever seen. In 1 year, the President's budget will quadruple the Federal deficit--That is the case even if you use the President's own estimates. Following the President's budget will create more debt than was created under every President from George Washington through George W. Bush combined. It also contains the largest tax increase in history of our union. And, under the Obama budget, government spending could end up as high as 40 percent of the GDP within the space of only a few years.

In order to assuage such concerns--or at least in order to pretend to do so--the President has claimed that his budget will cut the deficit in half over 5 years. So, he will quadruple the deficit in 1 year--but we don't have worry because, 5 years from now, he will cut that deficit in half? Does anyone really think the President was considering his promises of bipartisanship when drafting this budget?

It is not only the size of the budget, but its priorities. Like the stimulus bill, the President's budget reads like a policy manifesto for far-left Democrats. Worse still, the President and congressional majority have declared their intentions to use the budget reconciliation process in order to enact major pillars of their domestic policy platform, including an expansive government-run health care program and an energy tax euphemistically referred to as ``cap and trade.'' These are bills the President couldn't get passed through regular order, even with the large Democratic majorities. So, instead, he seems willing and able to force them through with little substantive debate, leaving the minority completely out of the equation.

Once again, it appears that the President's promise of increased bipartisanship came with an expiration date.

I wish this was all, but unfortunately it is not. The President's failure to live up to his promises of bipartisanship extends into the national security sphere. One of his very first actions as President was to order the closure of the Guantanamo Bay prison facility. Of course, he didn't have an alternative plan in place, only the stated desire to close the prison and to cast aspersions on his predecessor's efforts to protect our country's national security. Such inane details--like what we will do with these dangerous captives once the facility closes--could wait until later, the President had a political statement to make.

Just 2 weeks ago, President Obama opted to selectively declassify memos drafted by the Office of Legal Counsel during the Bush administration relating to CIA interrogation tactics. Instead of providing the American people real context about these tactics--their successes and failures--the President opted to placate those on the far left who want nothing less than an indictment and trial of our former President. He did this for the stated purpose of clearing the air and moving forward, yet he left open the possibility of prosecuting former Bush officials whose only alleged crimes were to offer legal opinions. One would think that a President who is truly interested in bipartisanship and moving forward would avoid further politicizing such contentious issues. Yet, as a result of the President's lack of leadership, we may be looking at months and years of show trials in order to pacify those on the far left who would criminalize policy differences in order to exact political vengeance on the Bush administration. I hope that this will not be the case and that the President will change course on these issues.

Now, to be fair, the President has made some good decisions during his first 100 days and I am not unwilling to give him credit where it is due. For example, he ended the ban on Federal funding for embryonic stem cell research. I have supported taking such measures for many years as I believe that this research has the potential to revolutionize medicine in this country. This was, in my view, a wise decision on the part of the President and I have commended him for it.

Likewise, the President exercised true leadership in helping Congress to pass the Edward M. Kennedy Serve America Act, a new law that will revolutionize volunteer service in this country. This bill was a long- time coming and had the support of a bipartisan coalition here in the Senate. Beginning with his address before Congress in February, President Obama got involved in helping this legislation move forward and, as a result, many people throughout the country will be given more opportunity to serve in their neighborhoods and to do much of the heavy lifting in fixing our Nation's problems. I have both publicly and privately thanked the President for his support of the Serve America Act.

Sadly, such instances of true bipartisanship have been few and far between.

Some may believe I am being too hard on the President or that my concerns are just sour grapes over my own partisan disagreements with the President's agenda. But, from the day he was inaugurated, I have continually expressed my willingness to work with President Obama. After all, this is my country too and I want him to succeed. My record in being willing and able to work with Members of both parties speaks for itself. But, in my opinion, success in addressing the major issues facing our country--including health care, energy, and our crippling entitlement programs--will require the work

and ideas of both parties. So far, with very few exceptions, the President seems all too willing to keep his own counsel and that of his fellow Democrats on how to address these issues. This is not the type of government he promised on the campaign trail and, quite frankly, I think it has led to policy results that, at best, have to be considered questionable.

Going forward, I hope that, instead of cursory gestures and empty statements encouraging bipartisanship, President Obama makes a real effort to listen to and accept ideas from both sides of the aisle. That will take real courage and leadership and, thus far, I don't know that he has demonstrated much of either.

Madam President, I wish to pay tribute to a great American and friend, former Congressman Jack Kemp. I was deeply saddened to learn of his passing and offer my sincerest condolences to his sweet wife Joanne; their four children, Jeffrey, Jennifer, Judith, and James; and 17 grandchildren. Jack has left a lasting impression and legacy that will be honored and long remembered by a grateful nation.

Jack came to Congress after 13 years as a professional football quarterback. His career in professional football demonstrates the value of persistence, self-confidence, and courage. Jack began his football career slowly and without much success. However, he was fiercely competitive and eventually led the Buffalo Bills to 33 victories and 2 league championships. He was selected All-League quarterback, AFL Player of the Year, Most Valuable Player, and appeared in five AFL championship games and seven AFL All-Star games. Jack was also recognized by Sporting News as one of the top 50 quarterbacks of all time. Sports taught him that the only real failure is not trying again and that out of adversity comes strength, determination, and ultimate victory.

When asked if being a football star helped him get elected to Congress, Jack responded, ``Yes, to the extent that I had name recognition and people knew who I was. That kind of identification cuts two ways. On the one hand, it was harmful because some people consider professional football to be anti-intellectual and an inadequate training ground for political leadership. To the contrary, I believe pro football is great training for leadership. In fact, I hope more athletes choose politics as a profession so that we don't leave the field to attorneys.''

Jack made the transition from athlete to politician in 1971, when he was elected to represent the 31st Congressional District of New York. He was an enthusiastic speaker, especially when the topic was tax revision, and was once told he talks ``as though somebody had pulled the trigger of a machine gun.'' I can certainly attest to that. However, it wasn't the way Jack talked that had everyone's attention; it was what he was saying. I would dare argue that much of what he was fighting for in the seventies and eighties still holds true today. For example, Jack argued that the U.S. Government should shoulder the burden of international leadership by becoming ``an active exporter of the American idea.'' In his view, the ``greatest weapon in our arsenal is the prospect of general well-being that results from the embrace of American ideas about opportunity, initiative, and enterprise.''

During his time as Congressman, Jack was probably best known as a champion of tax cuts. He became a fervent supply-side evangelist who believed that tax cuts would not only spur economic growth but also bring in more revenue for the Government. Jack coauthored the Kemp-Roth tax bill, which became the blueprint for what became known as ``Reaganomics.'' Jack referred to his comprehensive Federal tax-cut package as ``the number one offensive play in the country.'' Reagan biographer Lou Cannon said Jack, as much as anybody, helped persuade Reagan to embrace an economic policy of supply-side economics, stimulating economic growth through reducing taxes.

``Generally speaking,'' Jack said, ``if you tax something, you get less of it. If you subsidize something, you get more of it. In America, we tax work, growth, investment, employment, savings, and productivity. We subsidize nonworking, consumption, welfare, and debt.'' How true that is.

Jack served as a Congressman for 18 years, until 1989 when he became the U.S. Secretary of Housing and Urban Development under President George H.W. Bush. Jack was the author of the Enterprise Zones legislation to encourage entrepreneurship and job creation in urban America and continued to advocate the expansion of home ownership among the poor through resident management and ownership of public and subsidized housing.

Jack received the Republican Party's nomination for Vice President in August of 1996 and afterward continued a career of public service by campaigning nationally to reform the tax system, Social Security, and education.

Jack was always uplifting and optimistic. He consistently distinguished himself by exhibiting the rare ability to see real opportunity in the seemingly mundane. He seized those opportunities to demonstrate qualities of judgment, character, and commitment. Jack once said, ``I do not believe there is any future for the Republican Party in trying to defeat Democrats. You don't run to fight opponents. You run to promote ideas. Ideas are what rule the world. We, the Republicans, haven't been offering an alternative. We need more positive ideas.''

When asked about his political ideals, Jack was quick to reply: ``After going into the highly competitive business of pro football, I gained an even deeper appreciation of the competitive free-enterprise system to which this country owes its past, present, and future progress and freedom. I believe competition breeds the best, and the system of free enterprise has brought about the greatest society ever known.'' He also praised the American political system as ``the greatest experience in human dignity and human freedom that mankind has ever known.''

In a sweet and endearing letter to his grandchildren, Jack talked about the future of America. The letter was written days after Barack Obama secured the Presidency. Jack wrote, ``My advice for you all is to understand that unity for our nation doesn't require uniformity or unanimity; it does require putting the good of our people ahead of what's good for mere political or personal advantage. You see, real leadership is not just seeing the realities of what we are temporarily faced with, but seeing the possibilities and potential that can be realized by lifting up peoples' vision of what they can be.''

I would suggest that Jack is one of the greatest political leaders the world has ever seen. We all appreciate his efforts and service but none so more than me. My dear friend, you will be sorely missed. May God bless you and keep you.