Floor Statements

Mr. President, thank you for the opportunity today to pay tribute to a wonderful woman, dedicated public servant and loyal friend--Ms. Mary Langston Taylor. Mary is retiring from my staff on May 1, 2008, after 31 years of dedicated service.

Mary has been with me from the beginning. She joined my staff on January 1, 1977, the first week I was in office. You could say we have literally grown up in this job together. I believe the very first assignment I ever gave her was to take dictation for letters I wanted to send to all of my new colleagues. She didn't miss a word then and is still one of the fastest people I know at shorthand--a vanishing talent I might add.

In the early days of my Senate career, Mary was instrumental in the beginnings of all aspects of running a U.S. Senate Office. She drafted and implemented the initial quality control procedures for all office documents, and correspondence. She managed the ``conversion'' of the office from typewriters to computers--hard to fathom knowing what equipment we now have at our fingertips. She also helped spearhead the first Utah Women's Conference, an annual event Elaine and I have the pleasure of hosting for women across Utah. From its beginnings with Jihan Sadat as the first keynote speaker to today, this conference has served a vital purpose to bring together women from diverse backgrounds to discuss the issues most important to their health and well-being. Her innovation and hard work, along with many others, has made this annual event the huge success that it is.

Mary has worn many hats during her years of service: personal secretary, office manager, legislative assistant, special assistant, and currently constituent services representative. In fact, she was even kind enough to wheel me to the Capitol for votes after I severed my Achilles tendon. She got pretty fast with my wheelchair.

In her current position Mary helps solve hundreds of constituent cases each year that are brought to my attention by Utahns needing help working with the Federal Government. Mary's areas of expertise include: veterans and military affairs, transportation issues, and the U.S. Postal Service. While working with constituents, Mary has always conveyed her warmth and deep caring for each person. Perhaps her work is summed up best in the words of gratitude expressed to Mary by a happy constituent: ``What would we have done without you? You are our hero. I want to thank you for never giving up. . .Thank you for making all the difference in the world to my mom and us.''

Even in the face of severe adversity, she always came to work each day with a smile on her face and a willingness to get the job done. I have always admired Mary for her courage and fortitude. As a single mother for many years, she raised three wonderful boys--Robby, David, and James. She has taught them well and has sacrificed many things for the happiness of her children. Mary is not only the proud mother of these three boys but the loving stepmother to five children she was fortunate to inherit when she wed Brian Taylor. They have formed a wonderful partnership and it is always a pleasure to see them together.

In addition to her Senate service, Mary has been a tireless advocate for conservative ideals, and women's issues. She has served as the president of the Professional Republican Women of Utah, is a member of the Women's State Legislative Council, and is currently finishing her term as the president of the Salt Lake Council of

Women. In this position Mary spearheaded the Hall of Fame to honor outstanding women who have provided service to the community. She also created a special committee on domestic abuse to help others learn to spot indicators and educate women on what resources are available to those in need.

Mr. President. I am truly grateful for the service Mary Taylor has given to me, to our community, and to Utah. I will miss Mary tremendously but know that life holds many exciting and wonderful new opportunities for her to enjoy. When I think of the best way to describe Mary, the word ``loyal'' just seems to fit. Mary is a loyal friend, mother, wife, and has been a tremendously loyal staff member for 31 years. Someone once said: ``Loyalty cannot be blueprinted. It cannot be produced on an assembly line. In fact, it cannot be manufactured at all, for its origin is the human heart.'' This is Mary--her heart is pure and she is loyal to all.

I want to wish Mary the very best in retirement and want her to know that I will pray for her continued good health, success and happiness. May God bless Mary and her family for her wonderful service.

I ask unanimous consent that I follow the distinguished Senator from Colorado.

Mr. President, the American people sent us here to get things done. One of the most important things we do is consider and vote on the President's nominations to the Federal bench and the Department of Justice.

I can put it simply: We are failing to do our duty.

Let me first address the judicial confirmation process. The Constitution gives to the President the authority to nominate and appoint Federal judges. The Constitution gives to the Senate the role of advice and consent as a check on the President's appointment power.

The Senate gives the President advice about whether to appoint his judicial nominees by giving or withholding our consent. We are supposed to do so through up-or-down votes. That is what the Constitution assigns us to do and what the American people expect us to do.

That is what we are failing to do.

For the record, since I was first elected, I have voted against only 5 of the more than 1,500 nominees to life-tenured judicial positions the Senate has considered on the floor. Some of my Democratic friends, including those with far less seniority, have voted against more than three times as many nominees of the current President alone.

I have strongly opposed all filibusters against judicial nominees, both Democrats and Republicans. Some of my Democratic friends opposed filibusters of Democratic nominees but heartily supported filibusters of Republican nominees.

I have not taken a partisan approach to judicial confirmations. But I must say that today this body is failing to do its confirmation duty.

At both stages in the confirmation process--in the Judiciary Committee and on the Senate floor--Democrats are failing to meet not only historical standards but their own standards as well. Democrats have vowed not to treat President Bush's nominees the way Republicans treated President Clinton's nominees. Democrats are keeping that promise. Let me refer to this chart.

In the past 10 months, for example, the Judiciary Committee, under Democratic control, has held a hearing on only three appeals court nominees. During the same period under President Clinton, the Judiciary Committee held a hearing on 12 appeals court nominees--four times as many. And by the way, every one of those Clinton nominees was confirmed, 11 of them within an average of only 48 days after their hearing, and 9 of them without a single negative vote.

When I chaired the Judiciary Committee under President Clinton, we held no less than 10 hearings that included more than 1 appeals court nominee--10. While Democrats have controlled this body under President Bush, the Judiciary Committee has not held a single one--not one. Ten to zero. Democrats are certainly not treating Bush nominees the way Republicans treated Clinton nominees.

The Democrats are not only failing to meet historical standards in the Judiciary Committee, they are failing to meet even their own standards. When I chaired the committee, Democrats complained about every nomination hearing that did not include an appeals court nominee. With Democrats in charge under President Bush, the Judiciary Committee has held nearly a dozen nomination hearings without a single appeals court nominee.

There has already been one confirmation hearing this year without an appeals court nominee, and another one will take place on Thursday.

The picture is the same on the Senate floor, where Democrats are failing to meet either historical standards or their own standards.

President Bush is the fourth President in a row to face a Senate controlled by the other party during his last 2 years in office.

Under his three predecessors, the Senate confirmed an average of 75 district court nominees during their last 2 years in office. More than half of them were confirmed in the final year.

Fifteen months into the current 110th Congress, we have confirmed only 31--only 31--district court nominees for President Bush.

Similarly, under the previous three Presidents, the Senate confirmed an average of 17 appeals court nominees during the President's final 2 years in office. So far in the 110th Congress, we have confirmed only six appeals court nominees for President Bush.

Now, to meet the historical average, we will have to confirm 44 district court and 11 appeals court nominees in the next several months. If anyone believes that will happen, I have some oceanfront property in the Utah desert I would like to sell them.

Even if we did the completely unexpected, President Bush would still leave office with a much smaller impact on the Federal bench than his predecessor.

President Bush has so far appointed 295 life-tenured Federal judges, well behind President Clinton, who appointed 346 at this same point in his presidency.

Now, some around here spin a yarn about a supposed Republican blockade against President Clinton's judicial nominees. Some blockade. It allowed President Clinton nearly to set the all-time judicial appointment record.

On the Senate floor, Democrats are not only failing to meet historical standards, they are also failing to meet even their own standards. Eight years ago, when Democrats were in the minority during the last year of President Clinton's tenure, they were crystal clear about what the judicial confirmation standard should be.

One senior Democrat on the Judiciary Committee, for example, came to this floor often in 2000, insisting over and over that Democrats had set the proper standard back in 1992. This is what he said:

I say let us compare 1992, in which there was a Democrat

majority in the Senate and a Republican President. We

confirmed 11 court of appeals court nominees . . . and 66

judges in all. In fact, we went out in October of that year.

We were having hearings in September. We were having people

confirmed in October.

Today, as in 1992, a President Bush is in the White House.

Today, as in 1992, Democrats control the Senate.

Today, Democrats do not have to badger the majority to meet their judicial confirmation standard. They are in the majority. All they have to do is meet their own standard, and thus far they have failed to do so.

After all, if the Judiciary Committee is not holding hearings on appeals court nominees now, if the Senate is not confirming nominees now, what makes anyone think we are going to be doing so in September or October as Democrats once said we should?

We will no doubt hear any number of rehearsed responses, retorts, and rejoinders. We will hear, for example, that the White House has not sent us a nominee for every existing judicial vacancy. True, but beside the point. Lacking nominees for vacancies X, Y, and Z is no excuse for failing to hold hearings and votes on nominees to vacancies A, B, and

Mr. President, let me briefly turn from the judicial to the executive branch and, in particular, to the Department of Justice.

My Democratic colleagues have helped drive from office several top Justice Department officials and yet are now slow-walking confirmation of their replacements.

On March 11, the Judiciary Committee held a hearing on the nomination of Grace Chung Becker to be Assistant Attorney General of Civil Rights.

Grace served as a counsel on my staff when I chaired the Judiciary Committee and has been a Deputy Assistant Attorney General in the Civil Rights Division for the past 2 years. She currently heads the division in an acting capacity.

My Judiciary Committee colleagues will remember Grace as a talented, brilliant, and dedicated lawyer, a person of the highest character and integrity--one of the most likable people who ever served on the committee, one who served both sides, I think, graciously and well.

She received her law degree magna cum laude from Georgetown, where she was associate editor of the Georgetown Law Journal. That was after receiving her B.A. magna cum laude from the University of Pennsylvania and her B.S., once again magna cum laude from the Wharton School of Finance.

I think I see a pattern here.

After clerking for judges on the U.S. District Court and the U.S. Court of Appeals in the District of Columbia, Grace spent a year in private practice before entering Government service. For the next decade, Grace served in such positions as Special Assistant U.S. Attorney, Assistant to General Counsel at the U.S. Sentencing Commission, Special Adviser to the Assistant Secretary of the Army, and Associate Deputy General Counsel of the Defense Department.

I ask unanimous consent for another 2 minutes.

At the Justice Department, Grace has been supervising hundreds of lawyers in cases regarding civil rights, housing discrimination, religious land use, education, and fair lending practices.

Grace is a special person. She is the child of Korean immigrants whose parents and siblings are all entrepreneurs in New York and New Jersey. She and her husband Brian have been married for 14 years and have 2 wonderful children. Grace is living the American dream and making the most of the opportunities she has found in this great country. She is dedicated to making these opportunities available to others.

She has served the community on the board of the Korean American Coalition and on the Fairfax County School Board's Human Rights Advisory Committee.

She has finally had her hearing, but now I hear disturbing reports that she has been given literally hundreds of written questions, many about matters occurring long before her tenure or decisions and policies she had absolutely nothing to do with.

I urge my colleagues to do the right thing, to do our confirmation duty, not only for Grace but also for these qualified judicial nominees as well. I ask my colleagues to do what the American people sent us here to do, and that includes giving timely consideration and up-or- down votes to the President's nominees for the judiciary and the Department of Justice.

Mr. President, I thank my colleague for allowing me the extra 2 minutes, and I yield the floor.

Mr. President, I rise to speak today regarding the passing of former Senator Howard Metzenbaum, who passed away last night at his home in Fort Lauderdale, FL. I think I speak for many of my colleagues when I say that our Nation has lost a principled leader and that Senator Metzenbaum will be missed.

Senator Metzenbaum was born in Cleveland, OH in 1917 and spent much of his life serving the people of that great State. He graduated from Ohio State University in 1939 and received a law degree from that same institution in 1941. The early days of his legal practice were devoted to representing labor unions in Ohio.

In 1943, he began an 8-year period of service in the Ohio State Legislature, serving 4 years in the Ohio House of Representatives and 4 more in the Ohio Senate. He soon became a prominent figure in Ohio politics.

After his time in the Ohio Legislature, he continued his legal practice and also embarked on a very successful career in real estate development, becoming a self-made millionaire through a series of very successful investments. However, he did not stay out of public service for long.

In 1974, Senator Metzenbaum was appointed by Ohio Governor Jack Gilligan to fill the vacancy in the U.S. Senate left by Senator William B. Saxbe who had departed to serve as U.S. Attorney General. After losing a tough primary election to future Senator John Glenn later that year, Howard was elected to Ohio's other Senate seat in 1976, the same year I came to the Senate. He served three Senate terms before retiring in 1995.

I had the privilege of serving with Howard for his entire career in the Senate. It always amazed me how dedicated Howard was and how he dutifully watched out for his constituents' interests. It seemed like he was always on the floor at the right time and ready to stop any amendment that he thought might go against the principled views he held.

For many years, Howard's Senate office was across the hall from my office on the first floor of the Russell Senate Office Building. Frequently, when there was a vote, Howard and I would enter the hallway at the same time and he would immediately make a statement about the loud tie I was wearing. He never failed to notice the unique collection of ties I wore. However, over the years, I noticed his selection of tie choices began to grow louder and louder as well until eventually, we used to see who could wear the most outlandish ties to work each day. We sure did wear some ugly ties trying to outdo each other. We really developed quite a fondness for each other during those years.

As you might expect, Howard and I often found ourselves butting heads on many issues. He certainly had a tendency, at times, to frustrate some of our colleagues. However, we all admired him for his courage and conviction.

Howard was a tough politician. As we came to the close of each of our Senate work periods right before a recess began, you could always find Howard sitting at his desk on the Senate floor objecting to every piece of legislation that he did not agree with. He spent hour upon hour standing up for the people of Ohio.

Howard's enthusiasm in protecting the interests of Ohioans was probably the only thing that exceeded his zeal in guarding against legislation that he viewed as helping large corporations. I recall with some amusement an incident surrounding an amendment I was trying to add to a tax bill on the Senate floor that would have lowered excise taxes for certain companies that supplied materials to mining companies. This amendment had been cleared by the managers of the bill, who were the leaders of the Finance Committee. It appeared that acceptance of the amendment was a done deal.

That is, until Senator Metzenbaum found out that a potentially pro- corporation amendment was about to be accepted.

Howard began objecting to the unanimous consent request to include this amendment in the bill. During a call of the quorum, I went over to chat with him. I informed him that of the roughly two or three dozen mining supply companies that would be helped by this amendment, three were located in Ohio. I could see in his eyes the difficult nature of his dilemma--on the one hand he did not want to spend money on helping corporations and on the other hand, he always wanted to help his beloved Ohioans.

In the end, Howard made what he thought was the best decision for his constituents and agreed to let the amendment go, but not before he had a chance to weigh in his mind the importance of his decision. I remember thinking at the time that I had probably witnessed one of the only times Howard ever changed his mind regarding a piece of legislation.

Mr. President, I want to extend my deepest sympathies to the Metzenbaum family. As I said, Howard and I didn't often find ourselves on the same side of matters before the Senate, but I can say, without reservation, that he was a dedicated public servant, a man I have always admired and a dear friend.

Mr. President, I rise to speak about an amendment that would ensure funding for an extremely important program, the Federal traumatic brain injury--or TBI--program. This is the only Federal program that helps the 3.5 million Americans living with TBI and their families.

In 1996, when I helped to create the Federal TBI program along with my colleague, Senator Kennedy, most people had probably never heard of a traumatic brain injury. Many more people now are familiar with the term TBI because it has been increasingly highlighted in the media, but they may still not fully comprehend the gravity of such a condition.

TBI can strike anyone of any age without warning and with absolutely devastating results. For this reason, it is often called the ``silent epidemic.'' TBI is defined as brain damage from externally inflicted trauma to the head resulting in significant impairment to an individual's physical, psychosocial, and cognitive functional abilities. According to the CDC, brain injuries are among the most likely types of injury to cause death or permanent disability.

People ages 15 to 24 years and those over age 75 are the two age groups at highest risk for TBI. Motor vehicle accidents, sports accidents, falls, and violence are the major causes of TBI. TBI is particularly common among young males and people of both sexes who are 75 years and older. Because of its unique nature, TBI affects the whole family and often results in huge medical and rehabilitation expenses over a lifetime.

TBI may also be caused by explosives, and medical experts have described it as the signature wound of the Iraq war. Up to two-thirds of injuries in the Iraq war may be brain injuries.

TBI affects people like no other condition simply because it affects the brain. Just imagine what the consequences could be if the brain did not work properly. The brain is the control center of the central nervous system and is responsible for behavior and information processing. It controls cognition, perception, memory, and the ability to pay attention. The brain is also in command of posture, reflexes, movement, and coordination, as well as motor skills and other forms of learning. It performs a variety of body functions automatically, such as coordinating blood pressure and body temperature and breathing.

Given this, it is clear that an injury to the brain is unpredictable and has the potential to cause catastrophic results. TBI can be mild, moderate, or severe, depending on the extent of the damage to the brain and the actual location of the injury. TBI can cause a host of physical, cognitive, emotional, and social effects. Results can be anything from complete recovery to permanent disability or death.

As I mentioned, TBI is different from other disabilities due to the severity of cognitive loss. Most rehabilitation programs are designed for people with physical disabilities, not cognitive disabilities. Cognitive disabilities require more specialized accommodations than physical disabilities. Finding needed services is typically a logistical, financial, and psychological challenge for family members and other caregivers, because so few coordinated systems of care exist for individuals with TBI.

The program comprises surveillance and research activities at the CDC and NIH, respectively, as well as grants through HRSA to fund State demonstration projects to improve access to health and other services and for protection and advocacy systems.

The passage of the original Traumatic Brain Injury Act of 1996 has improved TBI service systems at the State level and also increased the overall visibility and awareness of TBI. However, more work needs to be done at both the national and State level to build an effective, durable service system for meeting the needs of individuals with TBI and their families. There are still too many dots that need to be connected. We must not stop now. We must sustain this program.

That is why I have been working with my colleague, Senator Kennedy, to reauthorize the program once again. I am pleased that our TBI reauthorization bill--S. 793--passed the Senate by unanimous consent on December 11, 2007. Just this week, the House Energy and Commerce Subcommittee on Health acted on its companion bill, H.R. 1418, and amended it with language from our Senate bill. I am hopeful that we can secure a timely passage of this reauthorization and thereby reaffirm our commitment to helping the TBI community.

Under the President's fiscal year 2009 budget proposal, funding is eliminated for this program. I support my President, and I support the goals of funding programs with proven performance accountability while reducing the deficit; however, I disagree with the proposal to cut this important program--the only program that helps this vulnerable population.

And I know that I am not the only one. This is not the first time elimination of the program has been proposed--but it keeps getting funded because others also feel it is an incredibly important program. It is a relatively small program, budgetwise, but that should not be a reason to ignore its significance or to let it fall by the wayside. That is why I have crafted this budget-neutral amendment to create a reserve fund of $9 million for the TBI program. This amendment will ensure the sustainability of this essential program, and the availability of services for individuals with TBI, and I urge my colleagues to support it.

amendment No. 4270

Mr. President, I rise today to discuss my amendment to the fiscal year 2009 budget resolution, S. Con. Res. 70, which condemns the unwise practice of diversion of funds from the U.S. Patent and Trademark Office, USPTO.

By stopping the short-sighted practice of fee-diversion, Congress would ensure that all funds collected are available to modernize the USPTO and increase the number of examiners so that U.S. entrepreneurs receive swift, precise decisions to secure their intellectual property.

The patent system is the bedrock of innovation, especially in today's global economy. The USPTO is the sole intellectual property policy office in the U.S. Government and a leading agency for intellectual property protection and enforcement worldwide. The nature of the USPTO workload is constantly evolving and increasing year by year, and requires active, responsive management. Considering the value of our Nation's intellectual property and its contribution to building a strong and vibrant economy, it is incomprehensible to siphon these funds away from their intended use, especially during these trying economic times.

Patent applications reflect cutting-edge technology, and are increasingly complex. More than ever, resources commensurate with the burdens placed on examiners are needed to efficiently and accurately prosecute patent applications. The backlog of unfinished applications for U.S. patents might reach well over 800,000 this year alone. It makes no sense to me why Congress would siphon off funds from the USPTO at this crucial time. Now is the time to act to protect this important agency, which is so vital to our Nation's economy.

Last year alone, more than 467,000 applications were filed at the USPTO. The sheer volume of patent applications reflects the vibrant, innovative spirit that has made America a world-wide leader in science, engineering, and technology. No doubt, the number of applications is hampering the agency's ability to keep pace with the innovative thought of applicants and to be flexible with the emergence of new technologies.

By prohibiting the practice of diverting fees to pay for other programs, the agency will be able to ensure that fees paid by inventors are used solely for USPTO operations. The resource-starved agency is still trying to recover from the almost $750 million in patent and trademark application fees that were diverted away from the USPTO between 1992 and 2004. As a result, the agency has been unable to hire, train, and retain the number of qualified examiners needed to handle the ever-increasing number of patent application filings. Moreover, the practice of fee diversion has inhibited the agency from playing more of a key role in combating counterfeiting and piracy, both domestically and abroad.

I note that the Congress and the administration have permitted the USPTO to keep almost all of its fees for the last 3 fiscal years. But, there is nothing to prevent this devastating practice of fee diversion from happening in the future. This senseless starving of the USPTO must end.

I believe this sense of the Senate is the first step in acknowledging that Congress must act in short order to stop depriving the USPTO of funds it so desperately needs and give the paying applicants the quality and timeliness of service they are due.

For all of the above reasons, I encourage my colleagues to support this sense of the Senate.

Mr. President, I compliment my distinguished colleague from Maine. She does such a great job around here, and we all respect her and know how hard she works. She has terrific ideas, so we are very grateful to have her as a colleague.

Mr. President, I rise to offer an amendment designed to protect Medicare beneficiaries' coverage choices. It will protect beneficiaries living in rural areas. It will protect beneficiaries with chronic conditions such as diabetes, congestive heart failure, and even cancer. It will protect beneficiaries who use preventive health screening benefits. It will protect low-income Medicare beneficiaries from high out-of-pocket costs.

Simply put, my amendment creates a budget-neutral reserve fund so that if Congress takes action to improve the Medicare, Medicaid, or CHIP Programs, it may not limit coverage choices for Medicare beneficiaries. It also may not reduce the benefits of those who are enrolled in Medicare Advantage Plans.

The Medicare Advantage Program was established by the 2003 Medicare Modernization Act. I know; I was on the conference committee and one of the key people in helping to pass that bill. Through the Medicare Advantage Program, health plans receive a monthly payment to provide beneficiaries at least all of the health benefits covered by traditional Medicare.

Prior to the MMA, these plans had difficulty existing in rural areas, such as Utah, due to very low monthly payments. In fact, Utah did not have Medicare Plus Choice Programs for any length of time because the plans simply could not exist due to low reimbursement rates, and that was true in almost every rural area in the country. The Medicare Modernization Act of 2003 increased payments to these plans, and as a result, every State now has Medicare Advantage Plans that are offered to its residents, and each State's residents are benefiting greatly from this.

Medicare Advantage Plans provide a lot more to beneficiaries than traditional Medicare. Medicare Advantage Plans provide a range of additional benefits not available in traditional Medicare, such as vision and dental care, annual physical exams, and hearing aids. Medicare Advantage Plans also have chronic-care programs for beneficiaries with chronic diseases, such as diabetes or congestive heart failure. Through chronic-care plans, these beneficiaries are able to manage their illnesses because their doctors provide a coordinated care approach to their conditions. That is why these plans work. That is why they are so much appreciated by seniors, especially, all over this country. In other words, health care providers actually talk to each other under Medicare Advantage, and they try to figure out the best course of action so that the patients will stay healthier longer.

This is not the case in traditional Medicare. A beneficiary in traditional Medicare may see as many as five or six physicians for various health problems--a nephrologist for kidney failure, an orthopedic surgeon for a broken ankle, an endocrinologist for an underactive thyroid, and an internist for general health issues. In addition, medicines are prescribed by each of these physicians without consultation, which sometimes may have disastrous results, all maybe not even understanding the others in the picture. Would these physicians talk to each other when the beneficiary is covered by traditional Medicare? Chances are very high that they would not. That is why Medicare Advantage Plans are so good for beneficiaries. These plans encourage providers to approach health care collaboratively-- something that I believe is in the beneficiary's best interest.

Health plans have been covering Medicare beneficiaries for many years through programs authorized by Congress. However, these Medicare health plans were typically limited to beneficiaries living in urban areas. The Balanced Budget Act of 1997 prompted Congress to take action to provide more coverage choices for beneficiaries living in rural areas.

Mr. President, in Pennsylvania, in your State, there are a lot of rural areas. In fact, I remember my good friend, Senator Chuck Grassley, the ranking Republican of the Senate Finance Committee, pushing for equitable payments in rural areas so that plans could be offered to beneficiaries living in areas such as Pennsylvania, Utah, and Iowa. At that time, payment rates to plans offered in urban areas were higher--in some cases, a lot higher--than payments in rural areas. Unfortunately, we didn't quite get it right in the BBA 1997, the Balanced Budget Act of 1997. We should have listened to Senator Grassley because he was right. In fact, my home State of Utah could not keep Medicare Plus Choice plans in the State primarily because the payment rates were too low, and that is true of every rural State. Ironically, many Utahns wanted to participate in these plans because they were the only ones offering the supplemental benefits such as vision care, preventive benefits, and prescription drugs to Medicare beneficiaries at that time.

Now, let me go to chart one here. We finally were able to achieve the appropriate payment rates for both rural and urban parts of the country through the Medicare Modernization Act of 2003. In fact, this chart shows how many Medicare Advantage Plans are available throughout the country since its passage. While this chart illustrates the different payment levels of Medicare Advantage Plans across the country, it also shows that many Medicare Advantage Plans are available in every county in every State in this country. Think about that. In other words, all Medicare beneficiaries have access to at least one Medicare Advantage Plan, but every part of the United States of America is covered by Medicare Advantage. It has been a terrific thing for our people who have suffered in these areas and who now are covered under Medicare Advantage.

Now, these people may choose between traditional Medicare or a Medicare Advantage plan. They can make the choice of whatever plan they want. The primary goal of the Medicare Modernization Act was to give beneficiaries a choice of coverage.

Now, again, when we first established ceilings for Medicare Plus Choice plans, we discovered that our floor payments for rural areas were too low. Medicare Plus Choice plans simply could not exist in rural areas.

Congress learned an important message from that experience, and that is why we adjusted the payment ceilings and floors for Medicare Advantage Plans in the Medicare Modernization Act, to ensure access to Medicare Advantage Plans in both rural and urban parts of the country. They are in all parts of the country today because of the changes we made in that bill. This chart proves that we accomplished that goal.

Now, let me go to chart two. This next chart will give my colleagues and everybody in America who is watching an idea of what could happen if Congress eliminates the rural and urban floor payments for Medicare Advantage Plans. The white parts of this map highlight the regions of the country where Medicare Advantage Plans may no longer be offered. It is the vast majority of America, if we do what some are saying we should do. It is very disconcerting to me that my very home State of Utah is almost completely white--right over there. There is only one little yellow spot and one dark-blue spot. In other words, we would decimate one of the programs that has worked so doggone well.

In essence, if we eliminate these payments from Medicare Advantage Plans, we will have a repeat of what happened with Medicare Plus Choice. Plans will pull out of the rural parts of the country, and beneficiaries will be left without any choice at all. It will be deja vu all over again. I, for one, do not want to see that happen again.

Now, let me go to chart three. This is important because another interesting point about the Medicare Advantage Plans is that beneficiaries are less likely to have problems accessing care compared to beneficiaries enrolled in traditional Medicare.

This chart shows that Medicare Advantage beneficiaries, as represented by the light blue on the left--there is light blue, green, then dark blue--Medicare Advantage beneficiaries have an easier time accessing care compared to those in traditional Medicare with and without supplemental health care. The light blue are Medicare Advantage enrollees, the green are all fee-for-service enrollees, and the dark blue are all fee-for-service who get supplemental coverage. When we were creating the Medicare Advantage Program, we strongly believed that beneficiaries should be able to have access to health care similar to the health care plans of Members of Congress.

Now, let's take a couple of minutes to go through this chart. It is an important chart. Only 2.8 percent of Medicare Advantage beneficiaries have no usual source of care, compared to 11.8 percent of those beneficiaries in traditional Medicare who do not have supplemental health coverage. Only 7.7 percent of Medicare Advantage beneficiaries do not have a usual doctor, compared to 24.6 percent of beneficiaries in traditional Medicare without supplemental coverage. Only 4.5

percent of Medicare Advantage beneficiaries had trouble getting care, compared to 8.4 percent of those beneficiaries in traditional Medicare without supplemental health coverage. Only 6.5 percent of Medicare Advantage beneficiaries delayed getting their care due to costs, compared to 18.6 percent of those beneficiaries in traditional Medicare without supplemental coverage. Only 7.5 percent of Medicare Advantage beneficiaries needed to see a doctor but didn't, compared to 14.3 percent of those beneficiaries in traditional Medicare who do not have supplemental coverage.

Look at it, starting on the left. No usual source of care--the light blue shows that they do have care compared to the other two. No usual doctor--the light blue again shows that they have their doctors. The third one over in from the left had trouble getting care, and you can see the light blue had less trouble than the other two. Then you go to delayed care because of cost. The light blue again was not delayed, compared to the green and the dark blue. Needed to see a doctor but didn't--the light blue, compared to green, compared to the dark blue didn't see the doctor and saved money over that time.

These statistics, based on the 2006 Medicare Current Beneficiary Survey, make one point very clear: Beneficiaries in Medicare Advantage Plans have been getting better care.

So let me conclude by urging my colleagues to keep in mind the following:

Today, beneficiaries across the country, whether they live in a rural State, such as Pennsylvania, Iowa, Utah, or in almost every State in the Union, or urban areas such as Boston, they have better coverage choices.

Today, beneficiaries are offered more choices in Medicare Advantage, more benefits, and lower out-of-pocket costs. Today, most beneficiaries are satisfied. Over 90 percent of beneficiaries are satisfied with their Medicare Advantage plans. That is historically an astounding success story. We all need to remember that these policy decisions, in creating the Medicare Modernization Act, were created on a bipartisan basis. I was there.

These bipartisan decisions helped achieve these impressive results, and these results should be protected. This is really important, and unfortunately we have people who want to get money out of Medicare Advantage and take away these benefits that have helped so many people in our country today, especially in the rural areas. We just cannot let that happen. I urge my colleagues to support my amendment to protect these Medicare Advantage plans and to quit playing with something that is working so wonderfully well.

I hope my colleagues on the other side will listen to these remarks I have been making. I know some of them know this is true, and the others, who have not studied it, ought to study it. They should not carve money out of a program that is as effective as is this one. It has exceeded the expectations we had when we were negotiating the Medicare Modernization Act by far. It is one of the most successful Federal programs. Frankly, it has done an awful lot of good to bring health care to those throughout our country and all of those States where plans have proliferated because they work.

I hope everybody will vote for this amendment.

I yield the floor.

Mr. President, I ask unanimous consent that I be given an additional 5 minutes.

Mr. President, I have 15 minutes, and I have asked for an additional 5.

Mr. President, I rise to express my opposition to and disappointment with the fiscal year 2009 budget resolution before us today.

Interestingly enough, I listened to the Senator from New York talk about how the rich are getting away with things. Well, the upper 1 percent of all taxpayers paid 39 percent of all income taxes the last time I heard. The upper 5 percent paid 60 percent of the total income tax in this country. The upper 50 percent pay 97 percent of all the total income tax in this country. The bottom 50 percent generally pay almost nothing, and a good percentage of them get money from the Federal Government. So what is he talking about?

I think it was Yogi Berra who once said, ``This is like deja vu all over again.'' I am sure he was not talking about the Federal budget when he uttered these oft-quoted words, but he might as well have been. As I look at the budget resolution before us today, and as I listen to the arguments on both sides of the aisle, it seems to me that we could be talking about last year's budget resolution. The numbers are somewhat larger, but the arguments are about the same.

Now this might not be so bad if the budget resolution were a good one. No, you would not hear me complaining about a repeat of a budget that strengthened our economy, addressed our near-term problems, and prepared this country for the longer-term budget challenges of the future. Unfortunately, this is not the case. In fact, quite the opposite is true.

Once we were through with that resolution last year, it didn't even resemble what the budget resolution was calling for. In fact, I have been here for 31 years, and not one day has the conservative point of view been dominant in the Senate. The liberal point of view, with almost all liberal Democrats and a few liberal Republicans, has held sway. That is where all the spending is coming from.

Instead, we are, once again, talking about a budget that raises taxes by an unprecedented amount, which will do untold harm to our economy, exacerbates our near-term problems by not holding spending in check, and totally ignores the longer-term mandatory program challenges of the future.

Much has already been said on this floor about the budget resolution and its failings. I could add a great deal more, but instead I choose to focus my remarks on three premises on which this budget is based. Three premises that, unfortunately, are false. And every child in Sunday school knows that false premises are like the house whose foundation is built upon sand. We all know that a house built upon sand, or a budget built upon false premises, cannot stand.

The first faulty premise underlying this budget resolution is that it would not raise taxes on Americans. I know that my colleagues on the other side of the aisle have said and will continue to say that this budget does not raise one cent in taxes. Technically speaking, this is true. However, while the document before us may contain no actual tax increase language, it does nothing to prevent the largest tax increase ever, which is set to occur at the end of 2010 if the 2001 and 2003 tax cuts are allowed to expire as scheduled.

The American people need to ask a simple question of this budget. What is

it doing to make sure that my tax bill does not go up in 2010?

They will be met with deafening silence.

Now, those on the other side will try and explain this deficiency away. They will argue that allowing a tax cut to expire is not the same thing as raising taxes. Well, try telling that to the 116 million American taxpayers who will face higher taxes if these tax cuts are allowed to expire. Try explaining this nuance to the 43 million American families who, on average, will owe $2,300 more, and to the 18 million seniors who will pay an average of $2,200 more.

This is not small potatoes. Families that do not consider themselves rich, that struggle to make ends meet, and that are doing all they can to make the mortgage and save for college, are going to get hit with massive tax bills. They are going to see their paychecks shrink by hundreds of dollars every pay period. This is real money. Money that families could use to pay medical bills or pay tuition, and instead it is going to go to the Federal Government.

It will not be much fun trying to explain this to the owners and managers of 27 million American small businesses. Try telling them that their higher tax bill is not really a tax increase. No, not at all. It is merely the reversal of a temporary lower tax rate they should have been grateful to have gotten for a decade, due to the generosity of Uncle Sam, who no longer deems it necessary to throw such favors their way.

Good luck selling that one.

I will tell you one thing--I do not want to tell the hundreds of thousands of Utah families, seniors, and small business owners that the extra dollars we were letting them keep for a few years are now needed for more urgent things, such as higher spending in Washington.

So if this is not a tax increase, I do not know what is. The other side can call it what it wants. But if the end result is more money coming to Washington, and less money staying in the paycheck, the family budget, or the small business expansion account, this is a T-A- X, Tax!

We have heard the other side talk about how they are for extending the middle-class elements of the 2001 and 2003 tax cuts. We have even heard them say that the budget resolution provides for this, through the adoption of an amendment offered by the Senator from Montana. $323 billion for middle-class tax relief. Does any of this sound familiar? It should, because the same amendment was offered, and adopted, in last year's budget resolution.

I have a question about that tax relief. Where is it? What happened? Last year's Baucus amendment offered pretty much the same kind of tax relief as this year's version. But, why did we need to adopt it again? The answer, of course, is that nothing happened because the tax changes necessary to carry out the stated intent of this amendment were never brought up in the Finance Committee or on the floor of this Senate. This is a shell game.

The reason why is that you have to look at the fine print on this amendment to see what is really going on. The Baucus amendment allows only for the consideration of so-called middle-class tax relief. It does not, however, provide a means to offset the lost revenue. Under the Democratic pay-go rules, along with the $323 billion of tax relief that the Baucus amendment purports to offer, there is an asterisk with fine print that says, provided that the revenue can be found to offset it. My goodness.

So this explains why we need the Baucus amendment again. The reason we did not provide that middle-class tax relief is that we could not find the revenue to offset it. But what about what my friend and colleague, the distinguished chairman of the Budget Committee, says? He points to the tax gap and says we can get the money there. All we have to do is stop some of the leakage in our tax system.

I agree with my colleague from North Dakota. I agree that we should be able to reduce the tax gap. It is too large and it is inexcusable why $200 to $300 billion or more in taxes that are due go uncollected each year. But you know what? Our tax system, as leaky and clumsy and unfair and antiquated as it is, is the envy of much of the world as far as the percentage due that we collect.

Can we do better? Of course. Do we need to crack down on tax abuse domestically and overseas? Indeed we do. Can we raise enough money by closing the tax gap to offset the revenue loss of the amendment of the Senator from Montana? Not even close. As Senator Grassley very eloquently demonstrated on this floor on Monday, the real potential for revenue from the tax gap is very, very small in comparison to what the other side is claiming. If not, then where are the specific proposals from the other side to do it? Why haven't they been enacted, if it is so easy to get this revenue?

The tax increases inherent in this budget resolution will do untold damage to our economy. Even if the other side can find the votes to increase taxes enough to overcome the pay-go problem associated with some of the middle-class tax relief proposed by the Senator from Montana, we would still be doing major harm to the economy.

We can perhaps look to the model provided for us by the chairman of the Ways and Means Committee in his so-called Mother Tax bill. It is so named because my good friend Chairman Rangel said it represents the Mother of All Tax Reforms. His ranking member, Congressman McCrery, more aptly describes it as the Mother of All Tax Hikes.

I can tell you right now, as much as I hate to say this about my friend Charlie Rangel, Congressman McCrery is right. This ``mother'' bill includes plenty of tax offsets. It would increase the income tax rates across the board to where they were in 2001, with the top rate exceeding 40 percent at the margin. This may sound as if it would affect only the wealthy, but this is another false premise. In reality, it would affect millions and millions of small and midsized businesses, the great majority of which pay their taxes through the individual Tax Code.

How is this going to help us solve the economic problems our Nation is facing? This budget is nothing but a recipe for disaster.

The second faulty premise underlying this budget resolution is that the increase in spending it authorizes will solve our long-term economic problems. Yes, I think we have heard this before as well. Yes, it was last year in the fiscal year 2008 budget debate. That budget resolution called for $205 billion in increased spending over 5 years, and this number ballooned to $350 billion over 10 years. Apparently, this amount was not high enough, so this budget ups the amount to $210 billion over the next 5 years, and it will have the same ballooning effect over the years beyond because the spending gets built into the baseline. That is the danger of a seemingly small amount of additional spending. It is insidious. It seems relatively small in the first year, and so it may be, but the way we do budgeting in Congress has a way of multiplying the seemingly small increases so they are huge in a few years. There is a compounding effect.

In his opening remarks on Monday, the distinguished chairman of the Budget Committee talked about the need for additional investment in America. He spoke about priorities in education, energy, infrastructure, law enforcement, weatherization, health care, uninsured children, food, drug safety, veterans, and much more.

I know the Senator from North Dakota is sincere, and I know he works hard and is very effective in presenting his side of the argument. I have much admiration and affection for him. I care a great deal for him. He has a very tough job, and he does it well.

The Senator from North Dakota is right about the needs of this country--they are unlimited, just like the needs of the typical American family. The needs of the American people as a whole are unlimited. The problem in both situations is that we do not have unlimited resources, and neither does the family. We have to make choices, and we have to set priorities. It would be nice if we could simply take care of every problem in this Nation by spending the money that is needed, just as it would be great if every American family had enough money to solve all of its problems. But that is not reality.

In reality, we are in serious financial trouble in this country. Money trouble, if you will. When a family faces reality and knows it has money trouble, that family will sit down at the kitchen table and decide where to prioritize and

what has to go. That is exactly what we need to do at the national level.

The Senator from North Dakota is correct about another point, and that is that the discretionary portion of our budget is getting squeezed. According to Comptroller General David Walker, the portion of discretionary spending in 1966 was 67 percent of the total budget. By 1986, this portion had dropped to 44 percent. By 2006, a couple years ago, it was down to 38 percent.

This shrinking percentage of discretionary spending, however, is not because we are spending less in terms of nominal dollars. The fact is we spent almost twice as much on discretionary programs in 2007 as we did in 2000. However, our mandatory spending is increasing so much faster. This growth in the entitlement programs, such as Medicare, Medicaid, and Social Security, is squeezing out our ability to grow the amount we spend on discretionary programs.

But the answer is not to increase discretionary spending even by what the proponents of this budget are calling a very small amount. We are going in the wrong direction, and this small amount will compound into a large amount in a few years. And guess what. Once we spend and it gets built into the baseline, it is almost impossible to get it out.

This leads me to the third faulty premise underlying this budget resolution, and that is it is safe to ignore our longer term problems with Medicare, Medicaid, and Social Security. I know if I were to separately ask each Member of this body if we need to do something about the growth of these programs, there is a good chance that every single Senator would agree we cannot afford to ignore them and that something has to be done to save our future. But as I looked over this budget resolution, I cannot seem to find the part that addresses the growth of these programs, and yet the Government Accountability Office tells us that between now and 2032, spending on Medicare and Medicaid alone will grow about 230 percent. At the same time, our GDP will grow about 70 percent if we are lucky.

Let me share some truly frightening numbers with you. The Government Accountability Office recently computed the fiscal exposures we face as a nation from our unfunded obligations under Social Security and Medicare. In 2007 dollars, our total unfunded liability for future Social Security benefits, assuming the law does not change, is $6.8 trillion--that is trillion dollars. This is a number of galactic proportions, so big that it is hard to comprehend. But I have to tell you, it pales in comparison to the amount of our unfunded liability associated with Medicare, which is more than $34 trillion--that is trillion dollars, $34 trillion. When this is combined with all other major fiscal exposures, the GAO estimates that our total unfunded liability is almost $53 trillion. That is with a T. This amount is nearly as high as the total household net worth of Americans, which is $59 trillion.

In other words, we are nearly bankrupt as a nation. Within a few years, we will absolutely be bankrupt if something is not done. It is clear that this path is not sustainable. We all know it. Our children know it, and our grandchildren are going to find it out the hard way. They are going to blame us if we do not act to turn things around. It is as if we are all in a ship floating down a river. The waters are quite calm now, but the map shows that a very high and dangerous waterfall is ahead of us. We know if we do not turn the ship around, disaster awaits. But it is not an easy thing to do. We know we cannot turn it around in 1 year. It will take a lot of work and sacrifice. It will take pain.

It is easy to say we should wait, that this is an election year and a new captain and maybe a new crew will be taking over after the election. But I say to my colleagues, we cannot afford to wait. In the midst of the calm water, we can hear the roar of the waterfall. We are coming to it very quickly, and if we wait too long, catastrophe will result. The budget before us does nothing about the cataclysm just down the river. It is a fatal flaw.

I started by mentioning that the rich do pay a lot of taxes right now. Actually, the rich are paying more after the tax cuts than they were paying before. The fact is, the upper 1 percent of the rich--the last time I saw the figures, and it is even worse now--are paying about 39 percent of all income taxes--the upper 1 percent of all taxpayers. And the top 5 percent pay about 60 percent of all taxes. And the upper 50 percent pay almost 97 percent of all income taxes. Think about that. The bottom 50 percent pay little or none and many of them get largess from the Federal Government. So this idea that the rich need to pay more is a phony argument. It is time people got called on that argument. It is phony, it doesn't make sense, and we have to get with it around here. We cannot keep bringing up these phony budgets such as this with all the budgetary gimmicks this one has in it.

I don't blame the distinguished Senator from North Dakota. He has a side that is fractionated. They want to spend more--that is how they keep themselves in power--and he has to find gimmicks and some way of justifying additional spending, and this budget is filled with additional spending, additional taxes, and a lot of budget gimmicks that should not be in it.

I urge my colleagues to reject this budget resolution. Let's get started on one that recognizes the dangers ahead and begins to turn this ship around before we hit that cataclysmic waterfall.

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

Madam President, during a debate about strategy on how to defeat al-Qaida, goal No. 1 should be figuring out their plans. What are their tactics and targets? How do we do this? We use our technological advantages to get this information. That is what the FISA modernization bill allows us to do.

The Congress has been working on FISA modernization since April 2007--over 300 days ago. But I guess 300 days is not enough time for a bill of this magnitude, right? But wait, the Constitution of the United States has written in only about 115 days, and that included travel time on horseback for the Founding Fathers. So the entire Constitution of the United States was written in one-third of the time we have spent on FISA modernization.

Congress has plenty of time and has had plenty of time to debate this issue. Given that the executive strategy in this instance is paramount, the next President's decision, whoever that may be, will be critical. Like many people, I have watched many of the Presidential debates. One thing amazes me: Out of at least 32 debates and forums, the candidates have yet to receive one question on FISA, the most important piece of legislation certainly in the last number of years and certainly in this Congress. There has not been not one question on the Foreign Intelligence Surveillance Act and what we are trying to do here. So we are continuing to talk about the most important bill in the entire 110th Congress, which is apparently not important enough to come up during over 50 hours of discussion with our next Commander in Chief.

I did hear an interesting comment during the most recent debate. A decision to utilize military strikes to kill al-Qaida in Pakistan was seemingly supported. That is the irony of this situation. It is OK if we kill terrorists overseas with missiles, but we cannot listen to the phone calls of new terrorists without demonstrating ``probable cause.'' We have to ask what probable cause is and why it exists at all. That will tell us to whom it belongs. Probable cause is a check on Government power rooted in the due process guaranteed by the Constitution. Who may claim such due process protection under the Constitution of the United States? U.S. citizens, not foreign citizens overseas.

We are constantly hearing from the leadership in Congress about the need to ``bring people together.'' Yet, at every turn, they seem to be willing to set aside bipartisanship in favor of the preferred policies--in favor of preferred policies of extreme political organizations. If Democrats really want to change the tone in Washington, they are going to have to, at some point, say no to the more radical elements of their base.

With the current stalemate on FISA modernization legislation, we have seen both political parties blaming each other for the delay. We have heard notions that we are not in danger due to the lapse of the Protect America Act. While our opinions on this issue will remain in bitter disagreement, the solution to these problems is quite easy. In fact, it should take about 15 minutes to solve this problem. Here is the answer, and it is just four words: Let the House vote. That is it. It doesn't take a genius to come up with a solution. All of the disputes will go away, and the bipartisan majority of the House will approve the bill if given a chance to do so. Is this a novel concept? The House of Representatives has been voting on bills since 1789--over 219 years ago. Will we ever be in a situation as complicated as this again, where the solution to every problem is allowing our elected officials to vote?

Back on December 17, on this very floor, I asked one of my Democratic colleagues if he agreed with me that should the FISA bill pass, it would be one of the best examples of bipartisanship in the whole 110th Congress and maybe in the history of this body. He agreed with this notion. Months later, this worthy goal came to fruition in the Senate.

As we all know, the Senate approved a FISA modernization bill by a bipartisan supermajority vote, a veto-proof margin. Senators from both sides of the aisle engaged in lengthy and informative debate and came together to pass a bill that met the goals of modernizing FISA.

This rare demonstration of unity came to a crashing halt on February 14. Rather than allow a bipartisan majority of the House to vote on and pass this bill, the House leadership refused to allow a vote on this bill. The House spent its last legislative day, before their weeklong recess period, debating and voting on a contempt resolution to further a partisan fishing expedition that has led to no credible evidence of wrongdoing. House Democrats had been sitting on these resolutions since July, for over 201 days. Yet they determined that they were so important that they superseded the needs of our intelligence community and the needs of protecting the American public.

So a bipartisan majority of the House was ready and eager to vote on this bill and was prohibited from voting on this bill. While numerous lawmakers stated they would stay in Washington--including me--for as long as it took to get this bill passed, the leadership from the House forced them to go on vacation. So they were prohibited from voting on a bipartisan bill to protect our country but were mandated to take a recess period.

You want to stay and vote on this bill? Too bad. We would rather you take some time off. Go back to your districts and take a break. Don't worry about our intelligence community. They have all the tools they need. That is what the House Members heard. These Representatives did not need to be patronized; they needed to be given a chance to vote.

The Attorney General, the chief law enforcement official of the United States, and the Director of National Intelligence, the person who is responsible for our intelligence in this country, say that the lapse of the Protect America Act caused us to miss information. These officials have more institutional knowledge on this topic than anyone in either body, and they dispute the notions that ``the intelligence community has everything it needs.'' With all due respect to all of us who serve as politicians, I am going to trust in the expertise of the Attorney General and DNI over the assurances of politicians in an election year.

So why doesn't the House leadership allow a vote on this bill? Could it be because they know it will pass, which it would? But we cannot have that. Heaven forbid, democracy would be free to run its course.

So rather than vote on this bill, we are hearing that the House leadership wants to conference this bill. Conferences are about resolving disagreements between the Chambers. But remember, a bipartisan majority from both Chambers has no disagreements on this bill. There are no disagreements to resolve between the majority of the Senate and the House. So a conference is entirely inappropriate in this situation.

I have also heard an argument that the House needs more time to review the immunity provision--the immunity that would protect these companies that patriotically cooperated with us in collecting the information that protected American citizens, which are now being sued in 40 different lawsuits for hundreds of billions of dollars. I want to make sure everybody is perfectly aware that the immunity provision has been publicly available and unaltered for 133 days. It has not been hidden. It has been available to everybody in Congress. It has been available to the world on the Web site of the Senate Intelligence Committee. It only takes about 3 minutes to read it. It should not take 133 days to analyze it, while putting our American public at risk.

I am also amazed at the false descriptions floating around about the terrorist surveillance program, TSP, which is the program the President described on December 17, 2005, during a radio address. We have all heard the terms: the warrantless wiretapping, domestic spying, or eavesdropping bill. The list goes on. Let's look at what the President actually said during his radio address on December 17, 2005:

In the weeks following the terrorist attacks on our Nation,

I authorized the National Security Agency, consistent with

U.S. law and the Constitution, to intercept the international

communications of people with known links to al-Qaida and

related terrorist organizations. Before we intercept these

communications, the Government must have information that

establishes a clear link to these terrorist networks.

I don't see anything in this statement about domestic spying. I thought the definition of the word domestic was pretty clear. If the program intercepted communications in which at least one party was overseas, not to mention a member of al-Qaida, then it seems fairly obvious that the calls were not domestic.

Look at this chart. Is this such a hard concept to grasp? The last time I flew overseas, I didn't fly on a domestic flight, I flew on an international flight. And there is a big difference between domestic calls and international calls. My last phone bill showed a big difference between the price of the two. Is it a domestic call when a foreign terrorist calls someone in our country or someone in our country involved in terrorism calls a terrorist in a foreign country?

``Domestic spying'' may sound catchy and mysterious, but it is a completely inaccurate way to describe the terrorist surveillance program or the FISA modernization bill. Why don't we describe them as we should: international spying. Isn't that a more accurate description? I guess accurate descriptions take a back seat to terms which incite fear and distrust in our Government.

What about ``warrantless wiretapping,'' doesn't this sound like a bad thing? Perhaps we should read the fourth amendment to the Constitution. Notice that not all searches require a warrant. Every member of the public who is up in the galleries watching us today went through a warrantless search to get into this building. Every time an American comes into the United States at the border, they go through a highly intrusive warrantless search. Every time an American gets on a plane, they go through a warrantless search. Every time an American goes to see a rally or speech from the President of the United States, thus exercising their first amendment rights, they go through a warrantless search. And there is good reason for it.

Remember, foreign citizens overseas receive no protection from the fourth amendment. So ``warrantless wiretapping'' in this instance is perfectly constitutional. In addition, look at what the Foreign Intelligence Surveillance Court, the highest court to look into this issue, previously said. This is 310 F3rd 717, FISA Court of Review in 2002. It is called In re: Sealed Case:

The Truong court, as did all the other courts to have

decided the issue, held that the President did have inherent

authority to conduct warrantless searches to obtain foreign

intelligence information. . . .We take for granted that the

President does have that authority and, assuming that is so,

FISA could not encroach on the President's constitutional

power.

That is one of the few formal cases out of the FISA Court.

Given the staggering amount of misinformation in the public, how many people have incorrectly stated that the Government can listen to all of their phone calls, read all of their e-mails, spy on American families overseas, even spy on our own military members overseas? How many of these false representations have been made by my colleagues and by others?

These accusations are completely false and are meant to incite fear of nonpolitical intelligence analysts who serve regardless of whom the President is. Isn't that the real fear mongering? Terrorists killed 3,000 Americans on September 11 and killed hundreds of other people in Madrid, London, Bali, and Kenya. They have sworn to kill more. They have said that ``the streets of America shall run red with blood, casualties will be too many to count, and the next wave of attacks may come at any moment.''

These terrorists recently called for the President of the United States to

be ``received not with roses and applause, but with bombs and booby traps'' during a recent Presidential trip overseas. So they wish death on all Americans and they threaten the assassination of the President of the United States. Yet if we acknowledge their threats, if we try to prepare for these attacks, we are accused of the politics of fear. But there is no problem when numerous individuals completely misrepresent how our Government protects our country. Nobody is calling these tactics ``fear mongering,'' so is it perfectly acceptable to question the integrity of thousands of Americans who have taken an oath to defend the Constitution of the United States and who have dedicated their lives to preventing our great Nation from suffering these terrorist attacks?

I am sorry to break it to people, but our intelligence analysts have more important things to do than look at someone's eBay transactions and listen to phone calls from the Jones family on their family vacation in Italy. I guess I shouldn't be surprised by these conspiracy theories, given the vocal lunacy expounded by those who think the September 11 attacks were an ``inside job.''

The FISA modernization bill should be the best example of how meaningful legislation becomes enacted. This bill passed by a veto- proof majority in the Senate. It came out of the Senate Select Committee on Intelligence, on which I serve, 13 to 2. It was bipartisan. It is supported by the intelligence community, and it has the support of the executive branch. Isn't this about as good as it gets? When a bill has support from all these elements, there is no excuse for it being held up.

The House leadership has indicated it intends to unveil a ``compromise'' FISA bill. Apparently, House Democrats are using an unconventional definition of the word ``compromise.'' What would they call the Senate bill? We went through months of hearings in the Senate Select Committee on Intelligence asking about pros and cons, asked thousand of questions, met with the top people in all fields, were read into the program, went out to the National Security Agency to look at these programs. What do they call the Senate bill?

No one, not the administration or anyone in the Senate, got everything they wanted with the Senate bill. It is a compromise. Is it everything I want? No. Are there things in there I wish we did not put in there? Yes. But it is a compromise, and I voted for it.

All sides had to make concessions before a final solution was reached 13 to 2 in the committee and it was bipartisan, 68 to 29 in the Senate--bipartisan. That is precisely what the compromise is all about. I simply do not follow the logic of rejecting a bipartisan result, which is what we already have, in favor of a more partisan solution and calling it a ``compromise.'' I can only assume that when House Democrats say ``compromise,'' they mean something else--capitulation.

I don't intend to capitulate on this issue. I hope the Representatives in the House who share my view will weigh in with the House leadership and other Democrats who have been holding this up to the detriment of the citizens of the United States of America. I have been to this floor countless times to discuss FISA modernization, and I will continue to do so. I will continue to fight for this cause because it is the right thing to do and especially since so many in both parties have come together to support the Senate bill and would support it in the House if the chance was given.

Madam President, we are still in the month of February. We should be doing our work here in the Senate. We should be working toward legitimate, bipartisan agreements on the issues that matter most to Americans.

That is what our constituents sent us here to do. Of course, in an election year, particularly a Presidential election year, we unfortunately slide into a silly season where very little gets done.

Instead of listening to each other and trying to come up with commonsense solutions, there is a temptation to use the Senate as an arena to make one's opponents look bad.

Usually the flowers of that silly season do not bloom until the summer. We are still in the month of February! We need to be getting the work of the American people done. We are in a time of legitimate economic distress.

There are very different ideas about how to deal with this economic slowdown. There is nothing wrong with this difference of opinion. The majority seems to think that the principal way to deal with an economic challenge is to spend money. To be clearer, they think that the answer is to spend taxpayer money. And make no mistake, if there is not enough taxpayer money to go around, the solution to an economic slowdown for the majority is to raise taxes. Conservatives have a slightly different understanding of what it takes to get the economy running again.

When the companies that Americans work for are loathe to invest, it hurts employees. When they don't invest, these companies do not create jobs. And when the economy is weak, it makes it more difficult for an entrepreneurial American to take the risks necessary and obtain the credit to start new businesses that will employ the people in his community.

So conservatives think we should do more to encourage business investment and capital formation. Both sides want to do what they can to get the economy humming. And both sides think there are different ways to accomplish this. Sounds like an opportunity for compromise to me!

But I think that some of my colleagues are more interested in an issue than a solution. We should not elevate politics above solutions. Congress needs to come together. Conservatives believe that their policies will work effectively to help the economy and the families that depend on good jobs and economic growth. We are not asking much.

We are simply asking that our ideas be taken seriously. And we should be. Even in the most liberal of States, Members of this body have many conservative constituents. Is it really too much to ask that those ideas be given an opportunity for debate on the Senate floor? It shouldn't be.

I am not sure, however, that the majority is interested in that debate. Twice this week, Senate minority voted to proceed to bills offered by the majority leader and my colleague from Wisconsin, Senator Feingold. Yet after voting to proceed to those bills, we were accused of blocking debate on the bills we helped to bring to the floor. That really is a classic.

The majority casts 21 votes against proceeding to a bill the majority leader himself wanted to proceed to debate. The minority casts the votes to allow that debate. And then the minority stands accused of delay.

A similar pattern has occurred with this housing bill. The majority rushed a bill to the floor. They bypassed the relevant committees. They bypassed the regular order.

In their haste, they made a small mistake with the legislation. Well, maybe it was not that small. The majority intended to spend $2 billion on counseling for distressed homeowners. They accidentally made this a $200 billion program; $200 billion.

I understand that this is a mistake. But it is a mistake born of a cavalier approach to legislating. We could have had a consensus bill.

Instead, the majority never consulted with the minority as this bill was being put together. In our view, we have a much better plan. It includes titles that would address taxes, capital markets, housing, and tort reform. We would keep taxes low.

We would extend the 2001 and 2003 tax cuts, preventing a looming tax hike, and making sure that working families do not get socked with thousands of dollars in extra taxes when these tax cuts expire in 2010.

We would increase the value of homes and prevent an unfair tax on their sale. We would help to keep jobs at home by encouraging job creation.

We would help prevent foreclosures by providing credit stability.

We would maintain the value and security of neighborhoods by encouraging the speedy sale and renovation of foreclosed homes.

And we would protect small businesses from the threat of excessive and frivolous lawsuits.

And let me tell you, when I talk to businesses, businesses that are subject to incessant litigation, tort reform is at the top of the list of things we have to do. It hurts companies large and small, and we need to do something about it.

I think if we had been invited to the table to discuss this bill, had been a party to the negotiation, or even been allowed to offer amendments, we could have worked something out on this bill.

We could have found common ground. I know that is what the American people want. We have been hearing a lot about common ground these days.

Whenever I turn on the television, I hear someone telling us about the need to change our ways in Washington. I hear about the need to bring people together. Well, we certainly have our opportunities.

But I feel that they are being missed. We do not have to be consumed by partisanship. In 2005 and 2006, Congress accomplished a number of serious policy reforms. We passed bankruptcy reform, class action reform, energy and highway bills, CAFTA and other trade bills, and the most significant reforms of pension laws in 30 years.

And those bills only became law because of debate, negotiation, and compromise. Through amendments, the regular order, and serious debate, the Senate was able to pass consensus legislation. And today? It is not quite the same.

Take it or leave it is not the stuff of statesmanship. It is the stuff of the sandlot. Leadership demands a willingness to listen to both sides. It requires compromise and openness to other ideas. The American people have made their position clear. They are tired of business as usual.

In the coming months, I hope to work with the majority on the issues of importance to the American people. The last week has not been very promising. Nonetheless, my hope is that Congress will be able to accomplish important reforms for the American people even in this election year.

Madam President, I suggest the absence of a quorum.

Madam President, I ask unanimous consent that Jesse Baker, a detailee from the Federal Government, be given floor privileges for the remainder of this session.

Mr. President, yesterday one of our colleagues came before this body and stated for all who cared to listen that he was weary, weary of this war.

I, too, am weary, but weariness does not lead me to embrace the policy of surrender or succumb to the nihilistic business that is defeatism.

History is replete with examples of leaders who fell victim to the temptation of defeatism. Shall the Senate similarly repeat this folly?

No, sir.

In this country, commitment and dedication to noble pursuits have defined our great Nation. We must not give way to weariness now.

The Senate is where great ideas and thoughts are to be put forth and considered, ideas and thoughts that are designed to lead to a better life for the American people and secure a safer world where the inalienable rights of all are respected.

But I, too, am weary, weary of the policies of appeasement that have become the guiding principles of some in the majority party. Have they learned nothing? Has history not taught us, through the pain and suffering of millions, that the philosophy of appeasement only provides a slight respite from the forces of evil before they unleash incalculable pain and suffering on the innocent?

What happens if we adopt the troop withdrawal legislation before us? Do they really think al-Qaida is just going to leave us alone? Make no mistake, the majority of the forces that oppose us in Iraq are affiliated with al-Qaida.

Do the supporters of this bill think al-Qaida will conclude: ``Well, we have won in Iraq, now let's leave the Americans to live in peace?'' Does anybody really believe that?

That is the question the American people have to ask themselves. What will happen if we pick an arbitrary time to leave Iraq based on a policy of appeasement rather than accomplishments of our new counterinsurgency strategy?

I have been to Iraq twice. The first time, I admit to being a little discouraged. The second time was a year later. During this second visit, we actually flew into Al Anbar really before it was completely as open as it is today. We walked the streets of Ramadi. We high-fived with the kids who were on the street. The difference between my two visits was striking. It was a complete change and that change is because of our current military leadership.

Again, the question the American people have to ask themselves: What will happen if we pick an arbitrary time to leave Iraq based on a policy of appeasement rather than the accomplishments of our new counterinsurgency strategy?

Simply put, what happens the day after?

Will not al-Qaida use Iraq, with the world's third largest oil reserves, as a bank to fund their worldwide activities? Will they not use Iraq as a base to launch attacks against all those who disagree with their radical policies?

What are the answers offered to these questions by the proponents of this legislation? From what I can discern from the Members who have taken to the floor to defend it, the answer is simple: nothing. They simply do not have a plan for the day after.

What of the nearly 4,000 servicemembers who volunteered to fight for their country and who have now paid the ultimate sacrifice? Does their memorial in history read: Thank you for your service, but some Members of Congress grew weary, and therefore your sacrifice and the sacrifices of your family were in vain.

I know what those sacrifices are like. Our family lost my only living brother in World War II on the Ploesti oil raid. That was the raid that attempted to knock out Hitler's oil reserves and it was one of the most important operations of World War II.

My brother's loss was hard on our family. But we were proud of my brother. We were proud that he was willing to sacrifice his life for us, just as we are proud of our young men and women who are fighting in Iraq and Afghanistan today.

What is General Petraeus's conclusion, if we begin a precipitous withdrawal? Almost everybody has praised General Petraeus. You just have to. My gosh, the man has completely transformed the situation in Iraq. He has been right in his approach toward these problems over there. He wrote the Army's manual on fighting insurgencies.

As recently as February 15, General Petraeus stated what we all know to be true if we were to begin a precipitous withdrawal:

You would see a resurgence of ethno-sectarian violence. You

would see al Qaeda regain its safe havens and sanctuaries.

There's no telling what would happen with displaced persons.

In other words, if we leave, the chaos that could result might make the wholesale slaughter that occurred after the fall of Indochina look minuscule by comparison. I wonder what fanciful legislative fix our colleagues will offer then.

So what is the alternative? Do opponents of this bill offer only empty rhetoric?

No, we support the comprehensive counterinsurgency strategy devised and implemented by General Petraeus. It is a strategy that is producing remarkable results, results that point to only one conclusion. In little over a year, the coalition has regained the initiative.

For example, General Petraeus stated in his December 30 briefing that overall attacks have decreased by 60 percent. Civilian deaths are also down by 60 percent. The ethno-sectarian component of those fatalities has decreased by 80 percent.

Those findings are supported by other commanders in Iraq, including MG Joseph Fil, the commanding officer of the 1st Cavalry Division and the officer who until December was responsible for our operations in Baghdad. He stated in an interview late last year with the New York Times that coalition forces have dramatically reduced, if not eliminated, al-Qaida's presence in every neighborhood in Baghdad. The general also pointed out that murders in Baghdad are down 80 percent.

In addition, during a recent briefing, LTG Raymond T. Odierno, who just returned from Iraq and has been nominated to become the Army's new Vice Chief of Staff, stated that terrorist operations in Baghdad have decreased by 59 percent. In the past year, suicide attacks in Baghdad have been reduced 66 percent, from 12 to 4 a month. The number of improvised explosive device attacks in Baghdad has also declined by 45 percent.

Baghdad is not the only area where we have seen success. During my trip to Iraq last year, I was able to witness the dramatic changes that have occurred in Al Anbar, where al-Qaida has been thrown out of vast areas of that province, including its major cities,

Ramadi and Fallujah, areas that were once deemed refuges for al-Qaida's vile perversion of a dignified and peaceful religion.

The success of Baghdad and Al Anbar is also being repeated throughout Iraq. In the north, Operation Iron Harvest has been launched.

This operation has already achieved some important successes. For example, during the month of December, the coalition and Iraqi security forces have killed or captured over 20 al-Qaida emirs in the north. This included the capture of Haider al-Afri, who was the main security emir in Mosul and was responsible for organizing the flow of foreign fighters into the Mosul area. His replacement did not fare much better; he was captured on February 18.

The number of attacks in Diyala has also decreased. No doubt that the recent killing of the al-Qaida emir of Diyala helped this trend.

In addition, in the past two weeks, the coalition killed Abu Karrar, who was a senior al-Qaida intelligence operative and an individual who has the infamous distinction of organizing murders to be carried out by female suicide bombers.

Which leads me to the inevitable question: What do you think these senior al-Qaida leaders would be doing with their time if we left Iraq? I wonder if they ever will grow weary as some in this body have?

How are all these successes possible? The answer is our generals over there, led by General Petraeus. His strategy is based upon the classic counterinsurgency tactic of providing security to the local population, thereby enabling the Government to provide services to its people, which in turn creates in the population a vested interest in the success of Government institutions.

One of the ways this is accomplished is through the use of joint security stations. Under this tactic, a portion of a city such as a neighborhood is cordoned off, then searched for insurgents. Previously, once this was accomplished, our forces would return to large forward- operating bases, usually on the periphery of the city. The result was easy to predict. The insurgents would return once the sweep had concluded.

Under General Petraeus's strategy, our forces remain in the neighborhoods and build joint security stations. These joint security stations then become home to a company-sized unit of American servicemembers as well as Iraqi Army and police units. These facilities not only help secure the surrounding areas but simultaneously enable our forces to train and evaluate Iraqi forces. Much like the local police officer in a major urban area, our forces use the joint security stations to learn about the locale to which they are assigned and can quickly adapt to meet the unique security needs of the individual community.

The success of these joint security stations can be seen in their creation throughout Iraq, with over 50 of them in Baghdad alone. However, under this legislation, our forces will no longer be able to conduct operations from joint security stations. In fact, they would be banished to bases isolated from the Iraqi people and unable to accompany Iraqi forces on missions. Under this bill, the few remaining forces would only be able to conduct limited operations against al- Qaida. The security provided to the Iraqi people, which is the foundation of our recent success, would be entirely lost.

So let's review the policy advocated by this bill. No. 1, it guarantees defeat. No. 2, it provides al-Qaida with another base of operations, and, unlike Afghanistan, Iraq's oil wealth will provide substantial financial resources to purchase whatever the terrorists choose. In the past, it has been publicly reported that al-Qaida has actively sought the acquisition of weapons of mass destruction.

Neville Chamberlain would be proud.

So yes, I, like others, am weary, but I am weary of appeasement. I am weary of such defeatist legislation being debated on the floor of the Senate. This is a Chamber for great ideas and concepts that will ensure the betterment of the American public and lead to the freedom of oppressed people all over the world. This legislation falls far short of that August standard.

Just think about it, here we have this country, Iraq, with three different factions who are working together, who are making headway, who have enormous oil wealth that could be used for their people, who are tired of al-Qaida, who have been throwing them out of the various provinces, who are cooperating with the United States of America, and who are starting to cooperate with each other, who sit between two of the most roguish nations in the world, Iran and Syria. All of this success happening, and we have people who want to pull us out prematurely. I don't understand it personally.

I respect the sincerity of the sponsors and of those who will vote for this. I think that if we are going to be weary, let's be weary of the way to handle things.

Mr. President, I rise to reflect on the passing of William F. Buckley, Jr. I am aware of my limitations in speaking about Bill Buckley. Anything I might add to the eloquent words that have already come from his friends at the National Review and from his friend, and my friend, the Senator from Connecticut, Joe Lieberman, will seem small by comparison.

Still, as someone who knew Bill, as someone who admired Bill, and as someone who learned a great deal from Bill, I would be remiss if I did not say a few words about this extraordinary man and his extraordinary life.

The life of William F. Buckley, Jr., reads like something from one of his many fiction novels. Growing up in Mexico, his first language was Spanish.

As a prep school student, he demonstrated that he was a real entrepreneur, typing his classmates' papers for $1 at a crack. And consistent with the writer America got to know over the years, he would charge an extra 25 cents to correct their grammar.

After graduating, he spent time at the University of Mexico, studying Spanish, and he served his country in the Army, making second lieutenant.

Only after serving in the Army did he go on to college, something widespread in those days--when a hot war was followed by a long, cold war--and largely unknown today with the exception of those in ROTC and benefitting from the GI bill.

As a student at Yale, he distinguished himself. In addition to his studies in political science, economics, and history, he cut his teeth as a debater and was elected chairman of the Yale Daily News.

Following college, a year in the CIA, and the publication of his book ``God and Man at Yale,'' he began a career as a writer.

In 1955, his public life began as he founded the National Review. The National Review never had a massive circulation. It continues to be subsidized by the contributions of its readers. But its significance was titanic. Simply put, there was no conservative movement before William F. Buckley, Jr., and the magazine he founded and cultivated.

For decades, the progressive left had been triumphant. Herbert Croly, The New Republic, Woodrow Wilson, and Franklin Roosevelt--there was no real answer to the arguments they made on behalf of higher taxes, a comprehensive state, and a highly regulated economy. For sure, there was a Republican Party, and Republicans continued to have electoral success. But there was no real consistent conservative point of view. The battlefield of ideas had been abandoned to the progressive left.

Bill Buckley, foot by foot, began retaking some of that ground, and establishing a framework of conservative ideas--themes of limited government, the protection of human liberty, economic entrepreneurship, and military strength in the face of a totalitarian threat bent on world domination.

The development of these ideas was not always pretty. But through fits and starts a movement grew. We first heard its voice in the 1964 Presidential election, an election in which Republicans were trounced. But by 1980, these conservative ideas had become a majority, one that helped to put Ronald Reagan in the White House.

Bill was no doubt combative, but I think most would say he was always having fun. He was a real intellectual, but he was no dour academic. He loved to sail. He used to make his way around New York City on a motorcycle. When he made his long-shot run for mayor of New York City and was asked what he would do if he won, he responded, ``Demand a recount.''

He took up the harpsichord at the age of 50. He became a novelist. His television show ``Firing Line'' ran from 1966 to 1999. I enjoyed being on ``Firing Line'' with him, basking in his wisdom, answering his questions, and on occasion irritating him to death. But I loved the man.

Bill was a man who loved the written word, and it was fitting that he passed away at his desk and at his home. His son Christopher, also an accomplished writer, noted, ``he might have been working on a column.'' And I have no doubt we would have benefitted from it, Democrats and Republicans alike.

As the authors of The Federalist Papers, Abraham Lincoln, Franklin Roosevelt, and Ronald Reagan understood, America remains an experiment. It is an experiment in republican self-government. And that experiment is constantly being tested.

Bill lived through extraordinary and challenging times, times like our own that tested that experiment, and I have no doubt he was very important in helping us through them.

With wit and aplomb, he pushed the envelope. He argued and fought. He made us a better country. He was a great American who led a great American life, and America will miss him.

I have to say I knew Bill Buckley. I appreciated Bill Buckley. He had an enormous influence on me. As a former liberal Democrat, he helped me to see the merit in intelligent conservative approaches.

He appealed to so many of us, including some of my liberal colleagues, who loved to debate him and loved to chat with him, because he was at bottom a decent, honorable, funny, person who was open to basically everybody.

No doubt the absence of Bill will be even more painful to the family he has left behind. But consistent with the Catholic faith, one kept deeply by Bill, I hope this is also a moment of happiness for them as they know that Bill is now in Heaven with the love of his life, Patricia.

I offer my condolences to the Buckley family. All of you and Bill are in my prayers. His brother, James Buckley is in my thoughts in particular. It was my honor to serve with Bill's brother in a variety of capacities. His brother is a true gentleman, a wonderful human being. Although he was only here for one term, he was a great Senator. The examples of both Bill and Jim Buckley show how this unique American family has contributed so much to our public life.

I can assure you that the Congress, including members who differed with Bill Buckley, will miss his humor and will miss him personally. I know one thing: This Senator from Utah will miss him deeply.

Mr. President, I thank my colleague from Michigan and yield the floor.

Mr. President, I compliment my distinguished friend from West Virginia. He has been a very bipartisan worker on the Senate Select Committee on Intelligence. I have been on that committee for an awfully long time, and I have a lot of respect for him. I just want to make that point for the record. I know he spends a lot of time trying to do his job well. We don't always agree, but we do agree on an awful lot. I particularly appreciate his work on the FISA bill. I know it is a very difficult position for him to be in. It is a very technical, very difficult bill, a complex bill, with a lot of matters conducted in public. I think he did a terrific job in seeing this bill through to the Senate floor.

I also would like to take a moment to thank my colleague and friend who works with me, Jesse Baker. He is a Secret Service detailee on my staff who has been invaluable in helping me prepare for the important FISA debate.

I also thank the very able counsel of the Intelligence Committee, Kathleen Rice, along with Jack Livingston, Mike Davidson, and Chris Healey, all of whom I think played a significant role in the FISA bill, among so many other things as well. I also would like to pay tribute to my colleague on the Intelligence Committee, my staffer who works with me, Paul Matulic, who is one of the most articulate and knowledgeable foreign policy people in government today. I am very grateful for his work and the effort he has put forth to try to assist me in these very difficult times and very difficult jobs.

This might be a historic week for the Senate Select Committee on Intelligence, at least in comparison with the last 3 years. Last night, we passed, after over a year of work and preparation, including the 6- month interim Protect America Act, the FISA modernization bill. I truly hope our House colleagues can expedite this bill and get it to the President for his signature before the legal regime governing our essential technical capabilities expires this weekend.

I wish to congratulate both the chairman, as I have said here earlier,

and vice chairman, Senator Bond, for their sustained efforts on this issue. It wouldn't have been passed without their sterling leadership and their willingness to make some tough calls and to stick to them.

I have often said I am metagrobolized--confounded, you might say-- that we have heard about the asymmetrical advantages that our terrorist enemies have, while we are reluctant to use our own significant asymmetrical advantages to defend ourselves from these terrorists' intentions. The terrorists do have asymmetrical advantages, to be sure: They are substate actors, and they do not operate according to any national or international law, including the law of war. They hide among civilians, target civilians, and terrorize civilization. If al- Qaida could get its hands on a weapon of mass destruction, everything we know about them suggests they would use it against the West.

But we in the West also have asymmetrical advantages as well. Two significant advantages are our technological prowess and our adherence to the rule of law. Our technology, as we have revealed in more ways than I think prudent in our open debate, provides us unparalleled advantages in tracking the enemy. Our collection has prevented terrorist attacks against us, and our continued collection makes the enemy dedicate a significant amount of its time to avoiding us--time that it would use plotting against us. In this sense, our technological collection is not just a defensive tool but an offensive tool as well. Americans and their leaders are right to expect that all of this Nation's activities should adhere to the rule of law, and this long debate over FISA modernization should, at the very least, assure everyone that we adhere to a legal regime, even when it seems aggravatingly slow to adjust it to modern technology and threats unimagined in the 1970s when the original FISA Act was enacted.

So I again wish to congratulate the chairman and the vice chairman for their leadership in getting this important piece of legislation passed, finally, last night. It was a major banner day for us. This bill was long overdue, and I give credit to those who have worked so hard--long and hard--to see that it was done.

The passage of an intelligence authorization bill is also an important measure of how we advance the rule of law. The balance of powers so beautifully articulated in our system of government requires an active role for this body and, since the 1970s, we have institutionalized a role of oversight for intelligence in the two committees of the Senate and the House.

Our principal vehicle is the authorization bill. This process has been derailed for several years now, as Members operating with individualized agendas have created a dynamic that has thwarted the institutional need for authorization. It is a fact that, if some concede that an authorization bill is not essential, the self- moderating dynamic that keeps one from offering controversial amendments on a bill is removed. We have seen this with the foreign relations authorization bills. I don't want to see it happen with the intelligence authorization bill.

This year's bill has some very important measures in it, most of them in the classified annex and therefore not subject to discussion now. It is, after all, an authorization for the intelligence community--or IC-- which does, after all, require a minimum of secrecy to function effectively. The bill does have measures in the unclassified annex worthy of passage, however, to include additional and needed authorities for the Director of National Intelligence, directions on personnel level assessments for the IC, directions on business enterprise architecture modernization, and limits on excessive cost growths of certain systems.

The bill, however, has been strapped by a provision added during conference that was not a part of either the House or Senate bills going into conference that would in this case limit all IC interrogation techniques to the Army Field Manual. Now, this provision is widely seen as a prophylactic against the use of torture, and there begins the misconceptions.

The United States does not torture. Whether the process known as waterboarding constituted torture when it was used in three cases in the past--and we cannot discuss exactly how it was used here--is a debate to be held among historians and scholars of the law. I do not wish to inhibit that debate. I also do not wish to violate U.S. domestic law or international law to which we are committed as a nation. The rule of law serves our advantage.

But the conflict over what was lawful in interpretation in the first 2 years after the 9/11 attacks recognizes, to the honest analyst, that there is murkiness at the intersection of law, policy, and legal interpretation. That has always been the case. As I say, I do not want to inhibit this debate.

I also do not wish that historic debate to inhibit any techniques we need to use for interrogation today. Last week, in an open session of the Senate Select Committee on Intelligence, Director Mike Hayden-- General Hayden--spoke forcefully, openly, and articulately about the issue of waterboarding. He said in public that, No. 1, less than one- third of less than 100 detainees held by the CIA since 9/11 have ever been subjected to enhanced interrogation techniques. No. 2, of that small sample, only three have been subjected to waterboarding. No. 3, waterboarding has not been used for almost 5 years. Yet we have heard nothing but screaming about this issue, as though it was relevant today.

As Director Hayden went on to state, there is a universe of lawful interrogation techniques. This includes FBI procedures, the Army Field Manual, and the enhanced interrogation techniques used by the CIA, but which, I repeat, does not include waterboarding today. The DCI made it plain--the Director of Central Intelligence made it plain that the CIA will play to ``the edges that the American political process allows us. It is our duty to play to that edge.'' The DCI also made it clear that if the Congress directs that line is set by the Army Field Manual, then that will be the line in law that CIA officers will respect and adhere to.

So Congress must act soberly and responsibly in addressing the question of enhanced interrogation techniques. As the hearing last week made clear to anyone listening, the various approaches--FBI techniques, DOD's Army Field Manual, and CIA's enhanced techniques--address various subjects under different circumstances with different sets of goals. Director Maples told me he could not imagine that anyone would have objected to the use of current enhanced techniques if they could have gained the intelligence that would have prevented the attack on the USS Cole.

In my mind, the greatest advantage of the enhanced interrogation techniques is the public ambiguity surrounding the fact that they are classified. I don't want an al-Qaida operative we have just wrapped up to know what is in our playbook. But I want to make clear, ambiguity is not--I repeat, not--a cloak for torture.

I can't go into details here, but I can say I have been constantly amazed as I have studied this issue in the Intelligence Committee over some of the sanctimony that has been used by some people on the Senate floor addressing this issue, and off the Senate floor as well. I can quite comfortably say there are actions the American public has routinely witnessed on some of our most popular television police shows over the past two decades that would exceed anything in the enhanced interrogation techniques allowed by the CIA. I find this to be ironic.

I cannot support this conference report if it has the language limiting interrogation to the Army Field Manual. This is a manual written for our soldiers, all of whom I think we all agree are brave, dedicated warriors, but most of whom are young and inexperienced in the needs of interrogation. They should have their manual. I must point out, however, that Army Field Manuals are subject to revision by the Executive at any time, so that we in Congress are acting a little too self-satisfied by this simple gesture if we actually believe we are rectifying the rule of law.

I say, let's have this debate and let's really define what it is we wish to proscribe, and let's understand the needs of our intelligence and the consequences for our actions--consequences that could be very grave if we keep playing games with these issues--or should I say political games. Both would be wrong, in my opinion.

Much of this debate must be classified, but the Senate has procedures for closed sessions, and, after all, the Senate Select Committee on Intelligence was created for just this need. I serve on that august committee, and I have served on it for a long time.

Sometimes I feel as if I am on the corner of sanctimony and righteousness. Sanctimony has popular appeal--it gains the approving tut-tutting of the chattering masses. Often it is more bombast than substance, more Babbittry than bravery. Righteousness is not always a function of the approval of the masses. Those who go to war to defend do things that are lawful but sometimes unpleasant--sometimes very unpleasant. In the choice between sanctimony and righteousness, I will choose the latter.

I do not wish to calumniate anyone in this debate. I presume that people are motivated by the purest of motives, as is always the case in the Senate--or should I say I hope it is always the case in the Senate. I wish, however, that we had more substantive debate on some of these difficult questions.

So because this conference report includes a measure limiting interrogation techniques for our intelligence professionals in the Army Field Manual--a measure added at the last minute in conference, something that was in neither bill, the House's or the Senate's--I will vote against the conference report and urge us all to reengage in this debate so that the lines of law we draw, that our intelligence professionals will respect, are lines that also maintain our best defenses within the rule of law.

I suggest the absence of a quorum.

Mr. President, I want to spend a few moments to eulogize our old friend, the chairman of the House Foreign Affairs Committee, Tom Lantos. He has been one of my dear friends all these years. I have been here 31 years, and he was here 26 years. He and Annette have really been wonderful people in Elaine's and my life.

Mr. President, this morning began sadly, as the two leaders have said, with the news of the death of Congressman Tom Lantos, one of the giants among the Democrats in the House, and, frankly, among all Members of Congress during the last 28 years. Congressman Lantos had been diagnosed with cancer a few months ago, and had recently announced he would not run for a 14th term for the 12th District of California, which he so ably served since 1980.

Tom Lantos led a remarkable life. A Hungarian Jew, he lived what he said was a happy childhood until the Hungarian fascist allies of Hitler brought the Holocaust to Hungary. Through most of the war, he was interned in various forced labor camps, some from which he escaped, and was at least once recaptured, following a beating that he later said, ``I was pleasantly surprised to survive.''

After a final escape, he spent the remainder of the war in hiding, protected, as so many Hungarian Jews were, by Raoul Wallenberg, the man who risked his life to protect as many of Hungary's Jews as he could and who vanished into the Soviet camps at the end of the war. One of the great days of my life was to pay homage to Raoul Wallenberg at the monument in Europe.

Six hundred thousand Hungarian Jews perished in the Holocaust, including Tom Lantos's family. One of the first initiatives of Congressman Lantos upon coming to the House of Representatives in 1980 was to pass legislation granting Raoul Wallenberg U.S. citizenship.

Tom Lantos was, in his words, ``an American by choice,'' and to know him was to see that every day of his life he embraced the opportunities an immigrant can find in this great country. He arrived penniless to this country, as my two colleagues have said. According to his biography, his only possession was ``a precious Hungarian salami,'' which was confiscated upon arrival, as my colleagues mentioned. But with a scholarship and hard work, he earned a Ph.D. in economics and

taught at San Francisco's State University for almost three decades, developing, during that time, his credentials as a commentator on world affairs.

Tom Lantos brought to the House his passionate patriotism and the drive of a survivor. When people would comment on the demands of his work, which included regular travel to his constituency 3,000 miles away, his global travels as a Member of the House Foreign Affairs Committee, which he recently chaired, and the hectic pace of his other congressional assignments, he would be quick to remind us that this was nothing in comparison to what he had faced as a young man.

He founded the House Human Rights Caucus, a platform which he used to highlight the human rights abuses around the world, and with which he became inextricably associated. For many of us in Congress and for many oppressed through the world, Congressman Lantos was the chairman for human rights.

He was a Democrat who believed in the use of American power for good and who understood the nuances of subtle, as well as confrontational, diplomacy.

For example, he kept trying to get a visa to visit Tehran because he believed there was always room to talk with enemies as well as friends. But when asked what he would say to the dictators in Tehran, he was less than subtle:

I will tell the Iranians the truth--that it's a great

country and they need to be reintegrated into the family of

civilized nations and that they must give up their lunatic

notions.

Less than subtle, to be sure, but truthful. It is hard to disagree with this view, Mr. President.

Tom Lantos also recognized that diplomacy could fail and the use of the U.S. military could achieve noble ends. He was a strong supporter of the military during the Cold War, supported military assistance to Israel, urged President Clinton to lead NATO forces against Milosevic's genocide, and supported our interventions in Iraq, although, to be fair to him, he was critical, as many of us have been, about the implementation of our invasion of Iraq.

The point is, Tom Lantos represented the wing of the Democratic Party that kept central our national security concerns, that recognized our duty in the world, and accepted that the use of force is sometimes required. This is the wing of the Democratic Party that needs to survive if that party is to remain relevant to the events in the world that will continually shape us.

I am honored to have been a friend of Tom Lantos for decades. We loved each other. We showed that love repeatedly over the years. He was a dear friend, and I want everybody to know just how deeply I felt about him. Our staffs worked together well, and he always had my admiration and respect.

I will never forget a tour he gave me and Senators Reid and Daschle of the old Jewish ghetto in Budapest when our separate codels happened to be in that city at the same time in 1996. Later, he gave us a personal tour of the magnificent Hungarian Parliament building. One of the first post-Communist governments was in power, and they so highly regarded Tom Lantos for his heritage, as well as his anti-Communist stance throughout his life, that he was granted free access throughout the building. He even knew where to turn the lights on.

The prayers and thoughts of Elaine and I go out to Annette, his beautiful wife of 58 years, whom he married in California, but who, like himself, was a survivor of the Holocaust in Hungary and was actually a childhood sweetheart. The fact that they loved each other as long as they have, that they came from similar backgrounds, and worked together daily throughout their lives only makes her loss that much sadder.

Our condolences go out to her and their two wonderful children. And I believe there are 18 grandchildren. But the death of Tom Lantos is a great loss, as well, to his constituents, to his colleagues in the House, to his party, and to all of us in Congress. It is a loss to our great Nation and to all those who strive in solidarity for the cause of human rights.

Tom Lantos was slight of build, but he was a giant. He was a moral force who used the authority of a survivor from the Holocaust, of an American immigrant, and of a scholar and leader to show the great institution of Congress how it can lead in a dangerous and often immoral world.

Elaine and I loved Tom, we love Annette, and we hope we can be of some assistance to Annette and her family as we move into the future. But we will miss Tom very badly. What a great and noble man who suffered so much for freedom.

I thank the Chair.

Would the Senator from California yield for a unanimous consent request?

I ask unanimous consent that I be permitted to speak immediately following the Senator from California.

Mr. President, for the last 6 months I have come to the floor on numerous occasions to offer my support of the limited immunity provisions in the Rockefeller-Bond bill.

In addition to my views on this subject, there are countless Americans who have expressed their support for the immunity provision.

In fact, I ask unanimous consent to have printed in the Record a letter sent to the Senate leadership last month, which is signed by 21 State attorneys general, which expresses their strong support for the immunity provision included in this bill.

Mr. President, here is the list of the attorneys general who signed this letter endorsing the immunity provision in the original Rockefeller-Bond bill. They are attorneys general from the States of Wisconsin, Rhode Island, Oklahoma, Colorado, Florida, Alabama, Arkansas, Georgia, Kansas, Utah, Texas, New Hampshire, Virginia, North Dakota, North Carolina, South Carolina, Pennsylvania, South Dakota, Nebraska, West Virginia, and Washington.

In addition, I ask unanimous consent to have printed in the Record four letters sent from law enforcement organizations, all in support of the immunity provision of the bill.

Mr. President, The first letter is from the National Sheriffs Association on behalf of 20,000 nationwide sheriffs. It states in part:

The Nation's sheriffs recognize the critical role that

electronic communication service providers play in assisting

intelligence officials on national security activities. We

are gravely concerned that, without retroactive immunity, the

private sector might be unwilling to cooperate with lawful

Government requests in the future. The possible reduction in

intelligence that might result from protracted litigation is

unacceptable to the security of our citizens. We strongly

urge you to help preserve the cooperative relationship

between law enforcement and the private sector by supporting

the immunity provision of this bill.

The other letters include one from the National Troopers Coalition, on behalf of its 40,000 members, one from the International Association of Chiefs of Police, on behalf of its 21,000 members, and one from the National Narcotics Officers' Association's Coalition on behalf of its 69,000 members. All of these letters support the retroactive immunity provision.

I have to tell you, when 150,000 law enforcement personnel with tremendous experience and expertise say they support telecom retroactive immunity, we should be listening and we should be giving this great weight. They know firsthand the dangers we face and they know what is at stake.

Let me talk a little about the Feinstein amendment No. 3910 on exclusive means. S. 2248 already has an exclusive means provision that is identical to the first part of the distinguished Senator's amendment. That provision simply restates Congress's intent back in 1978, when FISA was enacted, to place the President at his lowest ebb of authority in conducting warrantless foreign intelligence surveillance.

The current provision in S. 2248 was acceptable to all sides in the Intelligence Committee because it maintains the status quo with respect to the dispute over the President's constitutional authority to authorize warrantless surveillance.

Unfortunately, the amendment of the distinguished Senator from California is a significant expansion of the bipartisan provision that we enacted in the Intelligence Committee bill. Her amendment goes further by stating that only an express statutory authorization for electronic surveillance, other than FISA or the criminal wiretap statutes, shall constitute additional exclusive means.

This attempts to prohibit the President's exercise of his judicially recognized article II authority to issue warrantless electronic surveillance directives.

During the next attack on our country or in the face of an imminent threat, the Congress may not be in a position to legislate an express authorization of additional means. We may get intelligence information about an imminent threat during a lengthy recess, over a holiday. Air travel may be inhibited.

The bottom line is, we don't know what tomorrow will bring. Yet this

provision of the distinguished Senator from California would raise unnecessary legal concerns that might impede effective action by the executive branch to protect this country.

This amendment would also make members of the intelligence community who conduct electronic surveillance at the direction of the President subject to the FISA criminal penalty provisions of a $10,000 fine and imprisonment for not more than 5 years.

Virtually all of these people are not partisan people. They are people who continue on regardless of what administration is involved. They are there to do the job to protect us. They are not partisans. We should not treat them as such, and certainly we should not be saying that if they make a mistake, they are subject to a criminal provision of a $10,000 fine or imprisonment of not more than 5 years. Also, it is likely these criminal penalties would apply to any service provider who assisted the Government in conducting such electronic surveillance. That makes it even tougher to get their cooperation. Up until now they have been willing to cooperate because they realize how important this work is, and they have the request of high-level officials in the Government. That should be enough to protect them. They are doing it patriotically, to protect our country. They should not be hampered nor should their general counsels have to make a decision that the U.S. Government will have to go to court, with all of the delays involved in that, in order to do what it takes to protect the people in this country.

Regardless of what the skeptics and critics have said about the President's Terrorist Surveillance Program, the Constitution trumps the FISA statute. If a Government employee acts under the color of the President's lawful exercise of his constitutional authority, that employee should not be subject to a criminal penalty.

In my opinion, the current restatement of exclusive means is fair and keeps the playing field level, and it is enough. Ultimately, the Supreme Court may decide whether Congress has the authority to limit the President's authority to intercept enemy communications. Until then, it is my hope that we don't try to tilt the balance in a way that we may someday come to regret.

I urge my colleagues to vote against this exclusive means amendment.

The next Feinstein amendment is No. 3919. This amendment alters the immunity provision of the Rockefeller-Bond bill. I will oppose this amendment.

As has been said countless times, the immunity provision in this legislation was created after months of extensive debate and negotiation between the Congress and the intelligence community.

I cannot emphasize enough the painstaking work that the Intelligence Committee undertook in order to create this immunity provision. The chairman of the Senate Select Committee on Intelligence stated the following in the Intelligence Committee report:

The [Intelligence] Committee did not endorse the immunity

provision lightly. It was the informed judgment of the

Committee after months in which we carefully reviewed the

facts in the matter. The Committee reached the conclusion

that the immunity remedy was appropriate in this case after

holding numerous hearings and briefings on the subject and

conducting a thorough examination of the letters sent by the

U.S. Government to the telecommunications companies.

The administration wanted more than what is in this bill, and they did not get it. In a bipartisan way, we came together to come up with this bill, and it should not be tampered with now on the floor.

Let's look at what this means in relation to ongoing litigation. Since this immunity compromise provides no immunity for Government agencies or officials, the following seven cases will continue to be unaffected by this legislation. The immunity provision of the Senate Select Committee on Intelligence bill still allows TSP challenges in the al-Haramain Islamic Foundation, Inc. v. George W. Bush case, the ACLU v. National Security Agency case, the Center for Constitutional Rights v. George W. Bush case, the Guzzi v. George W. Bush case, the Henderson v. Keith Alexander case, the Shubert v. George W. Bush case, and the Tooley v. George W. Bush case.

I wish to draw attention to the first case. The al-Haramain Islamic Foundation has been designated by the Department of the Treasury as a ``specially designated global terrorist'' for providing support to al- Qaida and was similarly designated by the United Nations Security Council. If there ever was a case that should be dismissed, this is it--a terrorist organization providing support to al-Qaida sues the President for listening to their terrorist conversations. Unbelievable. And yet since the immunity provision in this bill is silent on the issue, the case will go on.

I highlight this case to remind people the provision in the bill already represents a compromise. The provision in the original bill passed by a 13-to-2 bipartisan vote out of the Intelligence Committee on which I serve. Despite repeated attempts to tweak this compromise, it remains the most appropriate and just mechanism for the resolution of this issue.

Just like the faulty ideas of Government indemnification and Government substitution, the Foreign Intelligence Surveillance Court review of certifications is yet another alternative that fails to improve on the original bipartisan immunity compromise we have in the bill before us.

I will oppose any provisions which weaken the immunity compromise. This amendment we are debating will do exactly that. Rather than rely on the carefully crafted language, this amendment introduces radically new ideas which completely change the dynamics of the immunity provision of the bipartisan bill. Rather than allowing the presiding district judge to review the Attorney's General certification called for in this bill, this amendment unnecessarily expands the Foreign Intelligence Surveillance Court jurisdiction into areas unheard of when this court was created nearly 30 years ago and equally unheard of in the year 2008.

Let's remember what it is that the Foreign Intelligence Surveillance Court was created to do:

A court which shall have jurisdiction to hear applications

for and grant orders approving electronic surveillance.

That is the mission of the FISC. So the FISC hears applications for and grants orders approving electronic surveillance. That is it. That is all they were created to do and rightly so. These are judges from all over the country who serve on the FISC at special times and do read these briefs, do read these legal matters that come before them, and then do exactly that, ``a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance.''

Yet this legislation will completely alter the nature of this court by transforming it into a trial court for adversarial litigation. This completely alters the intention of FISA from 1978 which carefully created this court. The role of the FISC, or Federal Intelligence Surveillance Court, has been greatly misunderstood during this debate.

I suggest we pay close attention to the recent opinion from the FISC, which is only the third public opinion in the history of the FISC, and that is over a 30-year period. The importance of this quote has been emphasized many times by Senator Bond, and this is what the FISC said:

Although the FISC handles a great deal of classified

material, FISC judges do not make classification decisions

and are not intended to become national security experts.

Furthermore, even if a typical FISC judge had more expertise

in national security matters than a typical district court

judge, that expertise would not be equal to that of the

executive branch which is constitutionally entrusted with

protecting the national security.

I understand there are certain Senators in this body who dislike President Bush. That is their right. But on the other hand, there may come a time when a President of their party may have to protect our country. They ought to think it through because they are taking away the tools that are necessary to protect our country in a zeal to go beyond what the FISC was ever designated to do.

Going beyond the fact this amendment would turn the role of the FISA Court on its head, let's look at what the FISC is asked to do in this amendment. According to the language, liability protection would only occur in three limited instances: One, the statutory defense in 18 U.S.C. 2511(2)(a)(ii)

has been met. Two, the assistance of electronic surveillance service providers was undertaken on good faith and pursuant to an ``objectively reasonable belief'' that compliance with the Government's directive was lawful. And three, assistance was not provided.

Regarding the first instance in which litigation would be dismissed, we need to realize 18 U.S.C. 2511 is not the only statute that allows the Government to receive information from telecommunications companies. There are numerous statutes which authorize the Government to receive information from private businesses. Here is a list not meant to include all such statutes. Look at this list:

18 U.S.C. 2516; 18 U.S.C. 2518, 18 U.S.C. 2512(2)(a)(ii), 18 U.S.C. 2511(3)(b)(iv), 50 U.S.C. 1802(a), 50 U.S.C. 1804, 50 U.S.C. 1805, 50 U.S.C. 1811, 50 U.S.C. 1861, 18 U.S.C. 2702(b)(5), 18 U.S.C. 2702(c)(5), 18 U.S.C. 2702(b)(8), 18 U.S.C. 2702(c)(4), 18 U.S.C. 2703(a), 18 U.S.C. 2709, 50 U.S.C. 1842, 18 U.S.C. 3127, 50 U.S.C. 1843, and 50 U.S.C. 1844, to mention a few.

Regarding the second narrow instance of dismissal of litigation, the phrase ``objectively reasonable belief'' is not defined in the legislation. What does this mean? How can it not be given a definition if the court is supposed to rely on it? Are we going to turn it over to the court to define it? Again, that is not the mission of the court. The court is not skilled in intelligence matters, except to the extent they have to know about it to be able to approve the various requests that are made of them, and there is no way it is going to be as skilled as the intelligence community.

So this amendment would grant the FISC new jurisdiction to review past conduct of private businesses utilizing a standard which did not exist at the time of the supposed activity and a standard which is not even defined in the legislation which creates it. Wow.

In addition, this amendment would allow plaintiffs and defendants to appear before the Federal Intelligence Surveillance Court. But we should know the FISC is not a trial court. It has never had plaintiffs in ongoing civil litigation appear before it in its nearly 30 years of existence.

There are approximately 40 civil cases which are ongoing out of this matter. Would all these plaintiffs appear before FISC? How would classified information, therefore, be protected? This amendment would create an entirely new role for the FISC, thus abandoning the very formula by which the FISC was created in the first place. Remember, the FISC was created to be a specialized court. Yet the expansion of FISC jurisdiction and duty required by this amendment brings us down a road where the FISC could be transformed from a specialized court to an appendage of the Federal district court. That precedent set by this amendment could forever alter the role of the FISC.

Quite simply, the FISC is not a trial court, nor should it be. Quite simply, the FISC is not a forum for adversarial litigation, nor should it be.

This amendment extends the rationale that the answer to any question during this debate is ``have the FISC look at it.'' The role of the FISC is vitally important, but the FISC is not the answer to every question during this debate. Misguided attempts to expand the FISC to be the purported solution to any alleged problem with terrorist tracking are impractical, imperceptive, and inappropriate.

We are long past the time for guesswork, and we need to support the tried-and-true bipartisan immunity provision as appropriate remedy to a critical problem. I reiterate my strenuous objection to this amendment, and I urge my colleagues not to support an amendment which introduces far too many unanswered questions into a debate which needs none.

Amendment No. 3912

With regard to amendment No. 3912 regarding bulk collection, this amendment did pass out of the Judiciary Committee, but it passed on a 10-to-9 party-line vote after only four minutes of discussion. This Judiciary substitute was tabled by the full Senate by a 60-to-36 vote, and this amendment is one of the reasons it was.

There is confusion about the need for this amendment. Does it preclude bulk collection or not? The text of the amendment seems to indicate that no bulk collection is permitted. Yet the author of the amendment states there is an exception for military operations. I have read the amendment, and I don't see any exception listed. Perhaps he is referencing comments in the Judiciary Committee report. But committee reports are not law.

The Attorney General and Director of National Intelligence have carefully reviewed this amendment, and they have stated that if this amendment is in a bill which is presented to the President, they will recommend that the President veto the bill, and I agree with that recommendation.

Amendment No. 3979

With regard to the Feingold amendment No. 3979 on sequestration of U.S. person communications, I am very concerned about the substance of this amendment, as are many of my colleagues. In addition, the Attorney General and Director of National Intelligence have thoroughly reviewed this amendment, and they recently sent a letter to the Senate stating:

This amendment would eviscerate critical core authorities

of the Protect America Act and S. 2248. Our prior letter and

Statement of Administration Policy explained how this type of

amendment increases the danger to the Nation and returns the

intelligence community to a pre-September 11th posture that

was heavily criticized in congressional reviews. It would

have a devastating impact on foreign intelligence

surveillance operations. It has never been the case that the

mere fact that a person overseas happens to communicate with

an American triggers a need for court approval. Indeed, if

court approval were mandated in such circumstances, there

would be grave consequences for the intelligence communities'

efforts to collect foreign intelligence.

The last part of this has been underlined.

Accordingly, if this amendment is part of a bill that is

presented to the President, we, as well as the President's

other senior advisors, will recommend that he veto the bill.

Unlike many of the amendments we have debated here on the Senate floor, this amendment did not receive a vote in either the Intelligence or Judiciary Committees. Not that that is limiting, but the amendment itself is not a healthy one on its face. Yet this amendment is among the most drastic in terms of affecting the efficiency and effectiveness of our intelligence collection processes. This amendment imposes tremendous restrictions in which the intelligence community is limited in what information they can receive and how this information can be shared.

That is what I think we were shocked to find when 9/11 occurred, that our various intelligence community organizations--FBI, CIA, et cetera-- were not sharing information. Now that we have solved that problem, why go back?

The massive reorganization of our collection techniques which would be required by this amendment is certainly obvious. The author of the amendment has recognized this as well, previously stating:

I do understand this amendment imposes a new framework that

may take some time to implement.

We need to remember the purpose of this bill is, and always has been, to enable the intelligence community to target foreign terrorists and spies overseas. But in order to make sure we are not missing valuable intelligence, we need to get all of a target's communications, not only when that target is talking with other people overseas, and that may mean intercepting calls with people inside the United States. In fact, those may be the most important calls to try to prevent an attack in the United States.

I understand there is concern about the impact of foreign targeting on U.S. persons. But we have a lot of protections built into this new bill that came out of the Intelligence Committee on a 13-to-2 bipartisan vote. I have been to this floor on numerous occasions and highlighted how the Foreign Intelligence Surveillance Court's role in all aspects of foreign intelligence collection is being greatly expanded by this bill, far beyond the 1978 FISA statute.

In addition, the Senate agreed to an amendment by Senator Kennedy that would make it clear you cannot use authorities in this bill to require communications where the sender and all intended recipients are known to be in the United States. We shouldn't go any farther.

The intelligence community must use minimization procedures. Our analysts are familiar with these procedures. They have used them for a long

time without any known abuses. Yet the scope of this amendment seems to represent no confidence in the minimization procedures used by the U.S. Government. Keep in mind, these minimization procedures were enacted over 30 years ago, and this bill will authorize the FISC to review and approve them for the first time.

This bill goes farther than ever before in our history in striking a balance between intelligence collection and protection of civil liberties. Personally, I am proud of this bill. I think all in the Intelligence Committee should have stuck with it, and we should not be trying to amend it at this point, especially with amendments that aren't going to work and will diminish our ability to get the intelligence we need to protect our citizens. Now I believe that in this bill we are protecting the civil liberties of ordinary Americans, but we also need to make sure our intelligence community isn't blind to information which may ultimately prove to be critical.

Section (a)(1) of this amendment would not allow the collection of certain communications if the Government knows before acquisition a communication is to or from a person reasonably believed to be in the United States. The Government knows when it targets foreign citizens in foreign countries that they might call or be called by U.S. persons. These are called ``incidental communications.'' Under the limitations in this amendment, the Government could not initiate the collection in the first place under many circumstances. This essentially undoes the authority granted in section 703 of this bill and will cause us to go deaf to our enemies.

The Director of National Intelligence has told us before that speed and agility are essential in tracking terrorists and preventing terrorist attacks. Yet even if collection could somehow begin under the dangerous restrictions in this amendment, analysts would have to go through hoop after hoop after hoop to use information that has foreign intelligence value. Remember, if it doesn't have foreign intelligence value, any U.S. person information would already have been minimized.

I do not understand why we would set up unnecessary roadblocks and slow this process down when we already have so many substantial protections in place. The Director of National Intelligence has stated this amendment would cause significant operational problems for the intelligence community that could lead to intelligence gaps. I affirm this statement. Knowing this, it would be irresponsible to handcuff our intelligence community with these additional restrictions.

I urge my colleagues to join me in opposing this dangerous amendment.

I emphasize again: We have brilliant, knowledgeable, well-trained, decent, honorable people who are here, no matter who is President, in the business of protecting our citizens from terrorist acts. And this bill, which passed 13 to 2 on a bipartisan vote out of the Intelligence Committee, provides more checks on these good people than the FISA Act of 1978 did, and that act has worked very well through all those years. The reason we are doing this bill is because we are in a new age, with new methods of communication that simply were not covered by the 1978 act, to put it in simple terms.

This is a complex thing, and I think we have to be very careful if we go beyond what the Intelligence Committee bill has said we should do. It was a bill worked out after months of hearings and work by the Intelligence Committee. I believe, in the Senate, I have probably been on the Intelligence Committee longer than anybody else, and I want to protect our people too. I want to protect them in a multiplicity of ways. But one of the most important ways we can protect them in this day of Islamic fascism is to give them the tools to do it and not restrict and hamper them from doing it--keeping in mind that they are honest, non-partisan citizens who are more interested in protecting Americans and getting the information we need to protect everybody than the partisans and sometimes uninformed people make them out to be.

Yes, any administration can put the top-level people in, but it is those who collect this information on a daily basis, minimize this information when it needs to be minimized, and work to do it in an honorable fashion who do the work. We should not be tying their hands and hampering them from getting the work done in this day and age when we have so many problems, and it looks to me as if we are going to have them for many years to come.

Mr. President, I yield the floor.

Mr. President, I ask unanimous consent that my remarks be considered as in morning business but fall in line with regard to the bill before us.

Mr. President, I wanted to briefly mention my opposition to amendment No. 3913 offered by the Senator from Wisconsin. This amendment relates to reverse targeting, which is a theory that the Government could target a foreign person abroad when the real intention is to target a U.S. person, thus circumventing the need to get a warrant for the U.S. person. Quite simply, reverse targeting is already considered illegal under FISA. Going even further, the Intelligence Committee bill has a very explicit prohibition against reverse targeting. The amendment offered by the Senator from Wisconsin adds subjective language which completely alters the meaning of the original bipartisan provision.

I asked Attorney General Mukasey this during a hearing on Wednesday, and here is our exchange.

HATCH: Now the topic of reverse targeting has been

mentioned often during the FISA reform debate. From an

intelligence perspective, reverse targeting makes no sense.

From an efficiency standpoint, if the government was

interested in targeting an American, it would apply for a

warrant to listen to all of that person's conversations,

wouldn't it? Not just his conversations with terrorists

overseas?

MUKASEY: Correct.

HATCH: Now, I asked General Wainstein about this during the

Judiciary Committee hearing last October, and he reiterated

the government's view that FISA itself makes reverse

targeting illegal. Does the DOJ still consider reverse

targeting illegal under FISA?

MUKASEY: Absolutely.

HATCH: Are you aware of any instances of intelligence

analysts utilizing reverse targeting?

MUKASEY: I am not aware of any such instances.

We are enacting national security legislation, and it is our responsibility to ensure that this bill does not lead to unintended consequences which provide protections to terrorists. This amendment is absolutely unnecessary, and I urge my colleagues to oppose it.

Amendment No. 3920

Mr. President, I wish to say a few remarks with regard to my dear friend, Senator Whitehouse's amendment to authorize the FISC, the Foreign Intelligence Surveillance Court, to assess compliance with minimization techniques. I rise to express my opposition to the Whitehouse amendment No. 3920.

My opposition to the Whitehouse amendment is related to the totality of this bill. This is an amendment that greatly expands the Foreign Intelligence Surveillance Court's jurisdiction. Keeping in mind that the bill before us already expands FISC jurisdiction of foreign collection to an unprecedented high historical level, this amendment tips the balance and could lead to real-life instances of intelligence analysts' operational decisions being second guessed by the court.

The original approach and goals of this legislation were simple and twofold. Goal No. 1: Wire communications taking place in 2008 should receive the same treatment as radio communications taking place in 1978; and goal No. 2: Our intelligence community's sources and methods should not be subject to exposure by litigation brought about by hearsay and innuendo.

I am pleased the legislation before us provides more protections to American citizens than any intelligence bill in my recent memory, and certainly more than the original FISA law.

Over the last several months, a great deal of attention has been given to the FISC, the Foreign Intelligence Surveillance Court. The FISC was created by the original FISA law, and its jurisdiction was extremely limited by that law. Here is what the FISC was created to do.

Foreign Intelligence Surveillance Court: ``A court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance.''

This jurisdiction is purposefully limited, as the task of reviewing applications to intercept electronic communications is among the most important tasks our Government can do to protect our country and its citizens. Terrorists have to communicate to plan and execute attacks, and our interception of these communications is paramount to stopping the next attack.

The jurisdiction of the FISC is greatly expanded by this legislation. Combined with other provisions in this bill, the new oversight created is prevalent and comprehensive. Since the breadth of this new oversight is critical when determining the necessity of the amendment we are debating, let's look at the oversight created by this legislation.

Let me read these five charts.

No. 1, for the first time the FISC will review and approve minimization procedures used by the intelligence community.

No. 2, for the first time the FISC will review and approve targeting procedures used by the intelligence community. The FISC will determine whether the procedures are reasonably designed to ensure targeting is limited to persons outside the United States.

No. 3, for the first time, a court order will be required to target U.S. persons regardless of where they are in the world--for the first time.

No. 4, for the first time the Attorney General and the Director of National Intelligence will be required to assess the intelligence community's compliance with court-approved targeting and minimization procedures. These assessments must be provided to the FISC and congressional Intelligence Committees.

No. 5, new congressional oversight--for the first time Congress is creating statutorily required inspector general--that is the Department of Justice and intelligence elements--semiannual assessments of compliance with court-approved targeting and minimization procedures. These assessments must be provided to congressional Intelligence Committees.

Now, given the staggering amount of new oversight, we should be very careful when creating mechanisms which could negatively impact our intelligence analysts, particularly when these mechanisms provide no benefit, in this case, to the privacy of American citizens.

The intelligence community has a great deal of experience in the techniques used to minimize incidental communications, and very detailed procedures for handling these communications are contained in the United States Signals Intelligence Directive 18, which has been in effect for over 28 years.

Remember, the Government is gathering information relating to foreign intelligence in order to protect national security, not necessarily for criminal prosecution. That is why different procedures are necessary. Otherwise, all national security information gathering would be changed to fit within the procedures of title III criminal wiretaps, which is impossible.

Minimization techniques deal not just with retention and dissemination, but with acquisition. Analysts make decisions up front whether to acquire, keep, or share U.S. person information based on whether it has foreign intelligence value.

This means if a judge is reviewing compliance with minimization procedures, this review is much more than a factual check. The judge is not limited to simply making sure that technical and administrative guidelines are followed. Rather, this amendment could allow a judge to question specific decisions by intelligence analysts on why they chose to acquire, keep, or share certain communications.

Now this begs the question: Are judges better trained in intelligence collection than the intelligence analysts whose job it is to repeatedly perform this task? Not only do I think the answer is no, but we should remember what the FISC said in their recently publicly released opinion, which is only the third public opinion released in the history of the Foreign Intelligence Surveillance Court.

Here is what the FISC said:

Although the FISC handles a great deal of classified

material, FISC judges do not make classification decisions

and are not intended to become national security experts.

Furthermore, even if a typical FISC judge had more expertise

in national security matters than a typical district court

judge, that expertise would still not equal that of the

Executive Branch, which is constitutionally entrusted with

protecting the national security.

Enactment of this amendment could result in judges making foreign intelligence determinations in place of trained intelligence analysts. Based on this unjustified scrutiny, our intelligence analysts could become overly cautious when determining whether to

deem information as having intelligence value in order to avoid unwarranted judicial scrutiny. This could result in less foreign intelligence information being accumulated, and thus could mean we may miss a vital piece of information. Do we want to take this chance? That is what this amendment would do. Should we risk this type of unintended result?

In October of 2007, I asked Assistant Attorney General Wainstein if putting the FISC judges in the position of assessing compliance would effectively put the judge in the role of an analyst. Here is what he said in response:

And that is the problem, that it would get the FISC in the

position of being operational to the extent that it's not

when it assesses compliance for, let's say, the minimization

procedures in the typical or traditional FISA context where

you're talking about one order, one person. Here, some of our

orders might well be programmatic, where you're talking about

whole categories of surveillances, and that would be a tall

order for the FISA Court to assess compliance.

The Whitehouse amendment also contains language which lets the FISC fashion remedies it determines are necessary to enforce compliance. This is very broad language and gives the court the ability to come up with whatever methods it chooses to enforce compliance. Does this mean that the FISC could shut down collection of information from foreign targets overseas while the Government addresses technical issues which have little to do with the privacy of American citizens? We do not know, since this amendment does not answer this question. Remember, we are talking about targeting foreign terrorists to prevent terrorist attacks. This is not the same thing as wiretapping a cocaine dealer in Los Angeles for criminal prosecution. If we approve an amendment which creates numerous unanswered questions, we are putting Americans at risk in unprecedented ways.

Given that the Government has adequately utilized minimization procedures for many years, what is the pressing need for FISC expansion into this area? There is no need to continue unlimited expansion of the FISC into unsuitable areas.

If this amendment does not pass, it does not mean that American citizens are not protected. Incidental communications of Americans will continue to be minimized, and the minimization procedures will have been approved by the FISC. But if the Whitehouse amendment passes, we will be taking a great risk that the unnecessary judicial oversight will cause very harmful unintended consequences that I have already mentioned. We are too far along to introduce guesswork into the carefully crafted compromise bill before us. I will oppose this amendment, and I urge my colleagues to do the same.

Amendment No. 3930

Now, Mr. President, there is one other amendment I wish to refer to. In October of last year, the Intelligence Committee passed a bipartisan compromise bill which would modernize our foreign intelligence surveillance activities. Unfortunately, this bipartisan bill contained a 6-year sunset provision which would automatically curtail our ability to protect our homeland unless Congress acted.

Let me be clear, I am opposed to any sunset in this legislation. While I believe the inclusion of this sunset provision was not appropriate, it was a result of the bipartisan negotiations in the Intelligence Committee. Now this serves as yet another example that not all of us who support this bill are happy with every provision, and every Senator will need to make concessions to get this bill passed and signed into law.

Given my opposition to any sunset, I will oppose the Cardin amendment No. 3930, which would change the sunset from 6 to 4 years. Proponents of this amendment have propounded several arguments, none of which justifies this change. I am going to discuss three of those arguments today.

The most common argument cited is that this legislation is too technical and too complex to have a 6-year sunset. This is certainly a complex bill, but this is not the first time the 110th Congress has tackled complex issues. We have already waded through several different and complex bills, such as immigration reform, ethics and lobbying legislation, and even a vast energy bill.

We are not reinventing the wheel with surveillance law, as this is a FISA modernization bill. But it is important to note how Congress has previously legislated in this area. The 1978 FISA law made dramatic changes to our surveillance laws and oversight mechanisms. While FISA has been discussed extensively, what has not been stated nearly enough is that the 1978 FISA had no sunset. Given that FISA had no sunset, let's look at how Congress has previously legislated FISA amendments with regard to sunsets.

Sunsets are not common in previous laws amending FISA. Other than the PATRIOT Act and the PATRIOT Act reauthorization, seven of the eight public laws amending FISA had no sunsets on FISA provisions, and the remaining public law had a sunset on only one of those provisions.

Now, this statistic speaks for itself. What is so different about this bill? I do realize it contains massive new congressional oversight provisions which could possibly hinder our collection efforts, and that we may need to revisit it for this reason. However, if this is the case, we obviously do not need a sunset to do this. We can legislate in this area whenever we want to.

A second reason I have heard that some support the Cardin amendment is that this sunset will keep Congress more engaged. One of my colleagues previously stated that a sunset ``gives Congress the ability to stay involved.'' Congress should not need sunsets to stay involved. We do not need legislative alarm clocks to go off in 4 years in order to address national security. I wake up every day thinking about how we might protect our fellow Americans. I certainly do not need a sunsetting bill to remind me about national security and oversight, and neither should my colleagues.

The final reason I have heard for a 4-year sunset is the idea that the next administration should be given an opportunity to address this issue and that a sunset fosters cooperation between Congress and the White House. Along these lines, one of my colleagues previously stated: Having a sunset gives us a much better chance to get cooperation . . . between the Congress and the White House. Once again, the next President can weigh in on this topic whenever and however he or she wants to. And regarding the idea that we should include a 4-year sunset to foster cooperation between two branches of Government--do we need a statute to influence the separation of powers? I say to my colleagues that the relationship between the branches of Government should be fostered by natural restrictions contained in the Constitution of the United States, not by an artificial sunset provision in an intelligence bill.

The very idea of a 4-year sunset understates the importance of timeline implementation of new legislation. It takes a great deal of time to ensure that all of our intelligence agencies and personnel are fully trained in new authorities and restrictions brought about by congressional action. This is not something that happens overnight. We cannot wave a magic wand and have our Nation's intelligence personnel instantaneously cognizant of every administrative alteration imposed by Congress. Like so many other things in life, adjusting for these new mechanisms takes time and practice.

While certain modifications are necessary, do we want to make it a habit of consistently changing the rules? Don't we want our analysts to spend their time actually tracking terrorists, or is their time better spent navigating administrative procedures that may be constantly in flux?

I know my preference is that our analysts be given the time to use the lawful tools at their disposal to keep our families safe.

I do not want to see them spending all their time burying their heads in administrative manuals which change from day to day whenever the political winds blow.

After all of the efforts by many in this body to write a bill that provides a legal regime to govern contemporary technological capabilities, I am certainly not alone in my opposition to a sunset provision. In fact, my views are completely in line with what the Senate has done in the past when amending FISA. The administration strongly opposes a sunset, and Attorney General Mukasey confirmed this opposition during last week's oversight hearing here in the Senate.

The fact is that this administration will not be here to see this sunset occur. Why would they care if there is a sunset in the bill or not? Their opposition demonstrates that those who are in charge of protecting our country know that a sunset is a bad idea and their opposition is based in logic and practical application. The administration knows that they will not be here, but the intelligence analysts who protect our country will. These analysts are not politically appointed, and do their job regardless of who the President is or what party the President represents. They need the stability of our laws to effectuate long term operations to prevent terrorist attacks, not guesswork which could hinder intelligence gathering practices.

We have already had a trial run with the 6-month sunset of the Protect America Act. Enough of the quick fixes, let's have confidence in the work product created by the nearly 10 months we have spent on this issue. A shorter sunset gives us an excuse to not legislate with conviction, and this is an excuse we should not make.

The 95th Congress had the ability to decipher complex problems and pass FISA with no sunset, and the 110th Congress can certainly modernize it without second guessing our capabilities by approving the Cardin amendment. I will oppose this amendment, and I urge my colleagues to do the same.

I yield the floor.