Floor Statements

Mr. President, the Senate continues, as we have all year, to make progress filling judicial vacancies when we have the cooperation of the White House. The nomination before us today for a lifetime appointment to the Federal bench is Robert Michael Dow, Jr., for the Northern District of Illinois. He has the support of both home- State Senators. I thank Senators Durbin and Obama for their work in connection with this nomination.

After we consider the confirmation of this nominee today, the Senate will have confirmed 35 nominations for lifetime appointments to the Federal bench this session alone. That matches the total number of judges confirmed for 2004. It exceeds the total number of judicial nominations that a Republican-led Senate confirmed in all of 1999, 2005 or 2006 with a Republican majority; all of 1989; all of 2001; all of 1983, when a Republican-led Senate was considering President Reagan's nominees; all of 1993, when a Democratic-led Senate was considering President Clinton's nominees; and, of course, the entire 1996 session during which a Republican-led Senate did not confirm a single one of President Clinton's circuit nominees.

Already this year, we have confirmed five circuit judges to the Federal

bench, including the nominations of Judge Jennifer Walker Elrod and Judge Leslie Southwick who became the fourth and fifth circuit court nominees we confirmed so far this year. That matches the total number of circuit court judges confirmed in all of 1989 and all of 2004, when a Republican-led Senate was considering this President's nominees. It matches the number of President Clinton's circuit court nominations confirmed by this time in 1999 with a Republican-led Senate and is five more than the Republican-led Senate confirmed in the entire 1996 session. That was the session in which not a single circuit court nominee was confirmed. It is more than were confirmed in the entire 1983 and 1993 sessions.

When this nomination is confirmed today, the Senate will have confirmed 135 total Federal judicial nominees in my tenure as Judiciary Chairman. During the Bush Presidency, more circuit judges, more district judges--more total judges--were confirmed in the first 24 months that I served as Judiciary chairman than during the 2-year tenures of either of the two Republican chairmen working with Republican Senate majorities.

The Administrative Office of the U.S. Courts will list 47 judicial vacancies and 14 circuit court vacancies after today's confirmations. At the end of the 109th Congress, the total vacancies when Republicans controlled the Senate were 51 judicial vacancies and 15 circuit court vacancies. Despite the additional 5 vacancies that arose before the start of the 110th Congress, the current vacancy totals under my chairmanship of the Judiciary Committee are below where they were under a Republican led-Judiciary Committee.

The President has sent us only 21 nominations for these remaining vacancies. Twenty-six of these vacancies--more than half--have no nominee. Of the 17 vacancies deemed by the Administrative Office to be judicial emergencies, the President has yet to send us nominees for nine, more than half of them. Of the 14 circuit court vacancies, six-- nearly half--are without a nominee. If the President would decide to work with the Senators from Michigan, Rhode Island, Maryland, California, New Jersey, and Virginia, we could be in position to make even more progress.

Of the 26 vacancies without any nominee, the President has violated the timeline he set for himself at least 18 times--18 have been vacant without so much as a nominee for more than 180 days. The number of violations may in fact be much higher since the President said he would nominate within 180 days of receiving notice that there would be a vacancy or intended retirement rather than from the vacancy itself. We conservatively estimate that he also violated his own rule 7 times in connection with the nominations he has made. That would mean that with respect to the 47 vacancies, the President is out of compliance with his own rule more than half of the time.

Today we consider the nomination of Robert Michael Dow, Jr. He is a partner at the law firm of Mayer, Brown, Rowe & Maw, LLP, where he has worked almost his entire career. He received his B.A. from Yale University where he graduated summa cum laude and his J.D. from Harvard Law School where he graduated cum laude. A Rhodes Scholar, Mr. Dow earned a master and doctorate degrees from Oxford University. Mr. Dow also served as a law clerk to Judge Joel M. Flaum on the United States Court of Appeals for the Seventh Circuit.

I congratulate the nominee and his family on his confirmation today.

(At the request of Mr. Reid, the following statement was ordered to be printed in the Record.)

Mr. President, I am disappointed that some Senator is preventing the Senate from taking an important step forward to combat identity theft and to protect the privacy rights of all Americans by passing the Leahy-Specter Identity Theft Enforcement and Restitution Act of 2007. This bipartisan cyber crime bill, which was requested by the Department of Justice, will provide new tools to Federal prosecutors to combat identity theft and other computer crimes. I know that it is cleared for passage by all Democratic Senators.

The dangers of identity theft and other cyber crimes continue to increase as our Nation becomes more dependent on high technology. In fact, just last week, FBI Director Robert Mueller stated that ``[c]yber threats will continue to grow as people become more and more dependent upon digital technology'' and ``we will be vulnerable to terrible attacks.'' Prompt Senate action on this bill will bring us one step closer to providing greatly needed tools to the Federal prosecutors and investigators who are on the front lines of the battle against identity theft and other cyber crimes. I urge those objecting to proceeding on this bill to reconsider their actions and allow the bill to be considered and passed.

I thank Senator Specter, who has been a valuable partner in combating the growing problem of identity theft for many years, for joining with me to introduce this important privacy bill. I have once again worked in a bipartisan manner with a group of Senators on both sides of the aisle to draft this legislation. I thank Senators Durbin, Grassley, Schumer, Bill Nelson, Inouye, Stevens, and Feinstein for joining with us as cosponsors of this important legislation.

I commend Senators Biden and Hatch for their contributions in this area. I am pleased that several provisions they have suggested to further strengthen this cyber crime legislation were included by amendment in this bill when it was considered and reported by the Judiciary Committee and that they, too, have now cosponsored our bill.

Senator Specter and I have worked closely with the Department of Justice in crafting this bill, and the Leahy-Specter Identity Theft Enforcement and Restitution Act has the strong support of the Department of Justice and the Secret Service. This bill is also supported by a broad coalition of business, high-tech and consumer groups, including Microsoft, Consumers Union, the Cyber Security Industry Alliance, the Business Software Alliance, AARP, and the Chamber of Commerce.

The Identity Theft Enforcement and Restitution Act takes several important and long overdue steps to protect Americans from the growing and evolving threat of identity theft and other cyber crimes. First, to better protect American consumers, our bill provides the victims of identity theft with the ability to seek restitution in Federal court for the loss of time and money

spent restoring their credit and remedying the harms of identity theft, so that identity theft victims can be made whole.

Second, because identity theft schemes are much more sophisticated and cunning in today's digital era, our bill also expands the scope of the Federal identity theft statutes so that the law keeps up with the ingenuity of today's identity thieves. Our bill adds three new crimes-- passing counterfeit securities, mail theft, and tax fraud--to the list of predicate offenses for aggravated identity theft. And, in order to better deter this kind of criminal activity, our bill also significantly increases the criminal penalties for these crimes. To address the increasing number of computer hacking crimes that involve computers located within the same State, our bill also eliminates the jurisdictional requirement that a computer's information must be stolen through an interstate or foreign communication in order to federally prosecute this crime.

Our bill also addresses the growing problem of the malicious use of spyware to steal sensitive personal information, by eliminating the requirement that the loss resulting from the damage to a victim's computer must exceed $5,000 in order to federally prosecute this offense. The bill also carefully balances this necessary change with the legitimate need to protect innocent actors from frivolous prosecutions and clarifies that the elimination of the $5,000 threshold applies only to criminal cases. In addition, our bill addresses the increasing number of cyber attacks on multiple computers by making it a felony to employ spyware or keyloggers to damage 10 or more computers, regardless of the aggregate amount of damage caused. By making this crime a felony, the bill ensures that the most egregious identity thieves will not escape with minimal punishment under Federal cyber crime laws.

Lastly, our bill strengthens the protections for American businesses, which are more and more becoming the focus of identity thieves, by adding two new causes of action under the cyber extortion statute-- threatening to obtain or release information from a protected computer and demanding money in relation to a protected computer--so that this bad conduct can be federally prosecuted. In addition, because a business as well as an individual can be a prime target for identity theft, our bill closes several gaps in the Federal identity theft and the aggravated identity theft statutes to ensure that identity thieves who target a small business or a corporation can be prosecuted under these laws. The bill also adds the remedy of civil and criminal forfeiture to the arsenal of tools to combat cyber crime, and our bill directs the U.S. Sentencing Commission to review its guidelines for identity theft and cyber crime offenses.

The Identity Theft Enforcement and Restitution Act is a good, bipartisan measure to help combat the growing threat of identity theft and other cyber crimes to all Americans. This carefully balanced bill protects the privacy rights of American consumers, the interests of business, and the legitimate needs of law enforcement. This privacy bill also builds upon our prior efforts to enact comprehensive data privacy legislation. The Leahy-Specter Personal Data Privacy and Security Act, S. 495, which Senator Specter and I reintroduced earlier this year, would address the growing dangers of identity theft at its source--lax data security and inadequate breach notification. Protecting the privacy and security of American consumers should be one of the Senate's top legislative priorities, and I urge the majority leader to take up that measure at the earliest opportunity.

Again, I thank the bipartisan coalition of Senators who have joined Senator Specter and me in supporting this important privacy legislation, as well as the many consumer and business groups that support this bill. I urge whoever is holding up this bipartisan bill to stop delaying this measure so that the Senate can promptly pass this important and much needed privacy bill before the Thanksgiving recess.

I ask unanimous consent that a support letter from the Chamber of Commerce be printed in the Record following my remarks.

Mr. President, how much time has been reserved for the Senator from Vermont?

How much time is reserved overall for those in opposition to this nomination?

I thank the Chair.

Mr. President, this debate is as much a discussion of principles that are vital to American ideals and to the American soul as it is a debate about who is going to act as the Attorney General for the next 14 months.

During the Judiciary Committee's consideration of this nomination earlier this week, Senators Kennedy, Kohl, Feingold, Durbin, Cardin, Whitehouse, and I made clear the fallacy that would disregard settled law and discredit America's role in the struggle for liberty and human dignity, something we should all support.

On the way to rationalizing support for a particular nominee, just as with rationalizing support for a particular piece of legislation, it may be tempting this once--just this once, we might tell ourselves-- tacitly to abet the arguments of those who want to define torture down to make it something less. Whatever the temptation--whatever the temptation, this once--we cannot rationalize away our core American ideals, the rule of law, and the principle that in America, not even the President is above the law.

The President and Vice President should not be allowed to violate our obligations under the Convention Against Torture and the Geneva Conventions, should not be allowed to disregard U.S. statutes, such as our Detainee Treatment Act and War Crimes Act. They should not be allowed to overturn more than 200 years of our Nation's reverence for human rights and moral leadership around the world.

The administration has compounded its lawlessness by cloaking its policies and miscalculations under a veil of secrecy. They left the Congress, they left the courts, and, most importantly, they left the American people in the dark about what they were doing. The President says we do not torture, but then he had his lawyers redefine ``torture,'' and he had them do that in secret memos, in fundamental conflict with American values and law.

Again, yesterday, I wrote to the White House counsel reiterating my earlier request for this administration's secret, purported justifications for having Americans engage in waterboarding and other treatment that would violate our Nation's obligations and values.

I ask unanimous consent to have printed in the Record a copy of my most recent letter to Counsel Fielding on this point.

Mr. President, I agree with the generals, the admirals, and the judge advocates general that waterboarding is torture and is illegal. The generals, the admirals, the judge

advocates general say waterboarding is torture and illegal.

I ask unanimous consent to have printed in the Record a copy of a letter I received from MG John Fugh, RADM Don Guter, RADM John Hutson, and BG David Brahms, dated November 2.

Mr. President, these distinguished military officers, flag officers, people who are charged with knowing what is our law, what is our Constitution, what are our treaty commitments, and what are the rules our military must follow, write with absolute clarity, and I quote the significant sentence from their letter:

Waterboarding is inhumane, it is torture, and it is

illegal.

They also quote the sitting judge advocates general of the military services from our committee's hearing last year in which they unanimously and unambiguously agreed that waterboarding is inhumane, it is illegal, it is a violation of law.

Think for a moment, if another nation picked up an American and waterboarded that American and we heard about it; no Senator, no American would have to know the circumstances and the purported justifications for it. We would condemn it. All 100 of us would be on the floor condemning it, and 435 members of the other body would be condemning it. Whoever was President of the United States would condemn it. But you know what, that was before this debate began, and now, tragically, this administration has so twisted America's role and our laws and values that apparently our own State Department is now ordered they cannot say that waterboarding of an American is illegal.

Mr. President, that is how far we have sunk. I ask unanimous consent to have printed in the Record a copy of a letter I sent to Secretary Rice protesting this order.

Mr. President, senior State Department legal officers are told that waterboarding, which has been recognized as torture, not for the last 10 years or 50 years or 100 years, but has been recognized as torture for the last 500 years, is a ``technique'' they cannot rule out as something a foreign intelligence service might be justified in using against Americans. This is ``Alice in Wonderland.''

Never mind that President Teddy Roosevelt, no shrinking violet he, prosecuted American soldiers for this more than 100 years ago. Never mind that we prosecuted Japanese soldiers for waterboarding Americans during World War II. Never mind what repressive regimes are doing to this day around the world. It is appalling.

When it comes to our core values--the things that make our country great, that define America's place in the world--it does not depend on the circumstances; it depends on our core values. America, the great and good nation that has been a beacon to the rest of the world on human rights, does not torture, it should not stand for torture, and it should stand against torture.

I ask unanimous consent to have printed in the Record a copy of a letter I received from the National Religious Campaign Against Torture, dated November 1.

Mr. President, what do we set as an example? We lose our way on this question of torture. When America arranged to have a Canadian citizen, changing a plane in the United States on the way to Canada, sent to Syria to be tortured, what did we tell the rest of the world? I will tell you what we told the rest of the world: Here we have the outrageous conduct of President Musharraf's Government in Pakistan. He is closing down the courts, he is closing down the opposition, he is closing down the press. We have to meekly say: Please don't do that; we do send you billions of dollars in aid; please don't destroy democracy.

A Cabinet Minister in his Government was interviewed yesterday on a Canadian show. When he was asked if he was ashamed of the images the world was seeing of Pakistanis being clubbed by police in the streets, part of his reply was this: Are other countries--referring to the United States--ashamed of taking persons from another country to a third country and torturing them? Are they ashamed?

I would like to think as Americans we hold the high moral ground, but we can be lectured because we have not, by the likes of a member of the Cabinet of a despotic regime in Pakistan, and there is no answer to it. There is no answer to it because what he objects to us doing is sending a citizen of another country who was on our land to Syria to be tortured, and we have no answer to that because this administration and this Government did it.

I am proud to be an American. I am so happy my maternal grandparents immigrated to this country from Italy and gave me a chance to be an American, as did my great-grandparents from Ireland. I am proud of it. I am proud to see my children growing up as Americans, now my grandchildren, as I know the distinguished Presiding Officer whose family has been in this country much longer than mine is proud of his American heritage. But torture should not be what America stands for. Indeed, the better example is set by the Army Field Manual, which instructs our forces to consider how we would react if what a soldier is about to do to someone was done to an American soldier. How would our soldiers react if they found somebody waterboarding an American soldier? They would do everything to rescue them because it would be wrong and it would be illegal. It is not just illegal and wrong if somebody else does it, it is illegal and it is wrong if we do it.

Sadly, when I cited this very standard in a written question to Judge Mukasey and asked if it would be an abuse if another country waterboarded an American, he sidestepped the question, and he failed to condemn even waterboarding of Americans. When we found our State Department to begin to do the same, I saw a pattern.

In their recent letter to the nominee, Senators Warner, McCain, and Graham do not take that approach. They recognize, as I do and I hope all Senators do, that waterboarding, under any circumstances, represents a clear violation of U.S. law. That is what Senators Warner, McCain, and Graham said. As chairman of the Senate Judiciary Committee, I agree with them.

When the administration and others state that we cannot state whether America waterboards people because it would tip off our enemies, they have it precisely wrong. That is about as effective as Saddam Hussein hinting that he had weapons of mass destruction, even though he did not, as he tried to impress his enemies.

In refusing to say we do not waterboard prisoners, what do we do? We end up giving license to others. When the United States cannot state unequivocally that waterboarding is torture and illegal and will not be tolerated, what does that mean for other Governments? What comfort does that provide the world's most repressive regimes? How does it allow the United States, that hitherto has been a beacon for human rights, to criticize or lecture these repressive regimes that torture that way?

Some have sought to find comfort in Judge Mukasey's personal assurance that he would enforce a future, some kind of new law against waterboarding if Congress were to pass one. Even some in the press have used that talking point from the White House. Any such prohibition would have to be enacted over the veto of this President, a President who has not ruled out the use of waterboarding.

But the real damage in this argument is not its futility. The real harm is that it presupposes we don't already have laws and treaty obligations against waterboarding. As we know, when we enter a treaty, it becomes the law of the land. We have laws already against it. We don't need a new law. No Senator should, with any kind of clear conscience, abet this administration's legalistic obfuscations by those, such as Alberto Gonzales, who take these positions, or John Yoo and David Addington, by agreeing somehow that the laws we already have on the books do not already make waterboarding illegal. We have been properly prosecuting water torture for more than 100 years.

Vote for the nominee or vote against the nominee, but don't hide behind some kind of a cloak and say maybe we should have a law in the future. We have that law. This is as if, when somebody murders somebody with a baseball bat, they were to say: We had a law against murder, but we never mentioned baseball bats. Murder is murder; torture is torture. Our laws make both illegal, and our laws--but especially our values--do not permit this to be an open question or even one that depends on who is doing the waterboarding. We cannot say it is wrong when other countries do it but, of course, it is right when we do it because our heart is pure. That is a prescription for disaster. That is what heightens the risk to American citizens and soldiers around the world, and it gives repressive regimes comfort, and that is something I will not do.

I will not accept this fallacious argument. I will not accept this pretense that it is OK because we have not yet passed a law, when that has always been the law in the United States. It was in Theodore Roosevelt's day, it was when we prosecuted Japanese soldiers after World War II for waterboarding, and it is today.

It would be like saying we haven't a specific law for some of the things done in Abu Ghraib. Of course, we had not. We knew such actions violated every principle of our law. Are we going to say, however, it was all right because we didn't have spelled out in the law every single thought that could be raised about torture so we could specifically cite to that?

Mr. President, hasn't there been enough harm done to the United States by the images of Abu Ghraib? Hasn't there been enough harm done to the United States by this Government intentionally taking a Canadian citizen and sending that citizen to Syria to be tortured? Hasn't there been enough harm done to this country that we don't need to have Senators stand on the floor of the Senate and say: Well, maybe sometime in the future we should have a law against waterboarding, when our top military and everybody else all agree this is already against the law.

Now, I wish I could support Judge Mukasey's nomination because I like him. I like his legal abilities. I like his background as a prosecutor. He is a tough, no-nonsense prosecutor. But we are dealing with an administration that has been acting outside the law, an administration that has now created a confirmation contortion. Mr. President, I am not a moral contortionist, and I am not going to aid and abet the confirmation contortions of this administration. When many of us voted to confirm General Petraeus, the administration turned around and, for political advantage, tried to claim when we voted to confirm the general, we also voted for the President's war policies. Well, I did not vote for a war in Iraq. I voted against it. And I do not vote to allow torture. And just as I do not support this President's Iraq policy, I do not support his torture policy

or his views of unaccountability or unlimited Executive power.

No one is more eager to restore strong leadership and independence to the Department of Justice than I. For almost 3 years, it has been leaderless. For almost 3 years, it has engaged in every single effort not to follow the law, but to find ways around the law. That has created a terrible problem of morale among the very wonderful men and women, the talented men and women who work there.

We all know what we need most right now is an Attorney General who believes and understands there must be limitations on Executive power. Whether the Executive is a Republican or a Democratic President, there have to be limitations. America needs to be certain of the bedrock principles of our laws and our values and that no President, no American, can be authorized to violate them. In America, no one is above the law. The President of the United States is not above the law. He is not allowed to place anybody else above the law. That is what has maintained this democracy for over 200 years.

When we began considering this nomination, I observed that the Department of Justice has experienced an unprecedented crisis of leadership. It is a crisis that has come more and more into view as Senator Specter and I have led a bipartisan group of concerned Senators serving on our Judiciary Committee to consider a U.S. attorney firing scandal, a confrontation over the legality of the administration's warrantless wiretapping program, and the politicization of hiring at the Department of Justice. What we have seen is not just poor leadership, but the complete breakdown of the principles that have always embodied the Department of Justice and the position of Attorney General.

For me, the issue has never been personal to Alberto Gonzales. The Judiciary Committee's investigations into the Department's many scandals were not designed to force the resignation of Alberto Gonzales, but rather to restore the integrity and the mission of the Department of Justice. My goal was not to force his resignation but to restore the Department of Justice. That the administration had him remain more than 6 months after the U.S. attorney firing scandal was known continued the harm and forestalled the restoration of order.

It was not just the fact that he lost my confidence that forced him to leave. It was not the Senate passing a resolution of no confidence. Rather it was our bipartisan efforts in which Republicans and Democrats who care about Federal law enforcement and the Department of Justice joined together to press for accountability.

The issue during the Senate confirmation of Alberto Gonzales remains today. The Department of Justice has always set out to enforce the law and to ensure that no one, not even the President, is above the law. As we consider the nomination of Michael Mukasey, we must determine what kind of Attorney General he would be and whether he will stand for the rule of law against the demands of this White House.

I began my consideration of this nomination as I did with the last Attorney General nomination, hoping to be able to support the nominee. After the hearing for the last nominee in 2005, I decided that I could not vote for the confirmation of Alberto Gonzales. I did so noting, as Justice James Iredell had in 1792, that the person who serves as Attorney General ``is not called Attorney General of the President, but Attorney General of the United States.'' This is a different kind of Cabinet position, distinct from all the others, and it requires greater independence. The departing Attorney General never understood this. Instead, he saw his role as a facilitator for this White House's overreaching policies and partisan politics.

The crisis of leadership that led to the resignation of the entire senior leadership of the Department and their staffs, as well as Karl Rove and his two top aides at the White House, has taken a heavy toll on the tradition of independence that had long guided the Department of Justice and protected it from political influence. As a former prosecutor I know that the dismay runs deep, from the career attorneys at Justice and in our U.S. attorney offices, straight down to the cops on the beat.

The Senate should only confirm a nominee who will bring a commitment to the rule of law and American liberties and values back to the Justice Department. As I have reviewed Judge Mukasey's nomination, I have found much to like. He has impressive credentials, vast experience as a lawyer and a judge, and a refreshingly straightforward manner. I liked him when I met him, and I am convinced that he is a man of integrity and would not be governed merely by personal or political loyalty.

At his hearing, he answered firmly that he would not tolerate political meddling in investigations or litigation and would end hiring based on politics, and he was clear in asserting that he would resign if the President insisted on going forward with a course of action he had found to be illegal. These were encouraging signs.

But I am concerned that he shares with this administration a view of virtually unbridled executive power and authority. In these uncertain times, it may be tempting simply to defer the Commander in Chief, but I believe that in difficult times, it is more important than ever to insist on the rule of law and the principles that have made our country unique in the world for more than 200 years. Even Judge Mukasey's strong promise to resign if the President insists on an illegal course of action loses its power if he believes the President to be largely unconstrained by law. If nothing the President can do would be illegal, there would never be an occasion for him to make such a principled stand.

That is why I was so disappointed by Judge Mukasey's answers suggesting that he sees little occasion to check the President's power. I was disturbed by his insistence that, with regard to warrantless wiretapping and the Foreign Intelligence Surveillance Act, the President has inherent authority outside of the statute and could authorize and immunize conduct contrary to the law. I fail to see a valid distinction justifying his assertion that the President could have the power of an executive override in the surveillance context, but not in the torture context, and I worry about where his reasoning could lead us.

I was disappointed in his abandoning his initial answer to parrot the White House's conclusion that a U.S. attorney could not bring a congressional contempt citation to a grand jury. That is the mechanism in the law that allows an independent court the opportunity to referee any claim of executive privilege that the executive and legislative branches could not resolve amongst themselves. He, instead, insisted that the solution in such a situation was an ``accommodation'' of the kind that this administration has been consistently unwilling to make. Once again, his position leads me to worry that he would allow this President's unprecedented assertions of power to go completely unchecked.

I was saddened to hear Judge Mukasey say that he apparently would not support habeas corpus rights for detainees, rejecting a core legal right and a basic American value which Senator Specter and I have fought so hard to restore. I was disappointed to see him echo in response to my questions the same administration policy on extraordinary rendition that has led to several disgraceful episodes for this Nation and fail to commit even to review the case of Maher Arar, a prominent and disturbing episode of rendition.

Which brings me back to the issue that came to dominate the consideration of this nomination, the issue of torture. The United States does not torture. The United States does not inflict cruel, inhuman, and degrading treatment. This is part of the moral fiber of our country and our historical place as a world leader on human rights, and it has long been fixed in our laws, our Constitution, and our values.

That is why I was so saddened when Judge Mukasey, given repeated opportunities, refused to say that the ancient and extreme technique of waterboarding, a brutal practice in which a person is subjected to simulated drowning, is illegal. There may be interrogation techniques that require close examination and extensive briefings. Waterboarding is not among them. Judge Mukasey does not need a

classified briefing to learn about waterboarding. He could go to the library to read about waterboarding that was done as far back as the Spanish Inquisition, or about American prosecutions of Japanese war criminals for waterboarding after World War II. Evan Wallach, a judge at the U.S. Court of International Trade, a professor who teaches the law of war, and a former JAG officer, wrote an insightful column in last Sunday's Washington Post that I ask unanimous consent be printed in the Record.

More than 100 years ago, in 1901 and 1902, U.S. military commissions charged American officers with waterboarding detainees in the Philippines, and President Theodore Roosevelt wrote:

Great as the provocation has been in dealing with foes who

habitually resort to treachery, murder and torture against

our men, nothing can justify the use of torture or inhuman

conduct of any kind on the part of the American Army.

This country's abhorrence for cruel treatment of detainees goes back further still to General George Washington who wrote of captured troops during the Revolutionary War:

Treat them with humanity, and let them have no reason to

complain of our copying the brutal example of the British

Army in their treatment of our unfortunate brethren.

Those are American standards and American values that should not be compromised.

As RADM John Hutson, former Judge Advocate General of the Navy, testified to the Judiciary Committee:

Other than perhaps the rack and thumbscrews, water-boarding

is the most iconic example of torture in history. It has been

repudiated for centuries. It's a little disconcerting to hear

now that we're not quite sure where water-boarding fits in

the scheme of things. I think we have to be very sure where

it fits in the scheme of things.

Judge Mukasey acknowledged that, in evaluating interrogation techniques, we look to standards such as whether the conduct ``shocks the conscience,'' whether it is ``outrageous,'' or whether it is ``for the purpose of humiliating and degrading the detainee.'' He was unwilling, though, to say that waterboarding meets these standards. To me, it is not a hard call that waterboarding shocks the conscience, that it is outrageous, that it humiliates and degrades detainees. I do not believe that the question whether waterboarding is illegal is subject to a balancing test. It is. Indeed, it is that kind of ``balancing test'' that has allowed this President to claim the discretion to commit so many abuses that have brought such disgrace on this great country.

Senator McCain, who knows too much about the issue of torture, said recently:

Anyone who knows what waterboarding is could not be unsure.

It is a horrible torture technique used by Pol Pot and being

used on Buddhist monks as we speak. People who have worn the

uniform and had the experience know that this is a terrible

and odious practice and should never be condoned in the U.S.

We are a better nation than that.

I agree.

Nothing is more fundamental to our constitutional democracy than our basic notion that no one is above the law. This administration has undercut that precept time after time. They are now trying to do it again, with an issue as fundamental as whether the United States of America will join the ranks

of those governments that approve of torture. That is why I will vote no on the President's nomination.

Mr. President, I reserve the remainder of my time.

Mr. President, without losing my right to the floor, I yield to the distinguished Senator from Pennsylvania on his time to ask a question of the Chair.

Mr. President, Senators are waiting to be recognized. I ask unanimous consent--the time allotted to me is 20-some-odd minutes-- that when he is recognized, the Senator from Vermont, Mr. Sanders, be recognized for 12 of my 24 minutes. Perhaps while the next Senator is speaking, I will make an attempt to find out how much more time we have so I can report to the Senator from Pennsylvania. I ask unanimous consent that when he is recognized, the Senator from Vermont, Mr. Sanders, be recognized for 12 minutes of my time.

Mr. President, I reserve the remainder of my time. I yield the floor.

Mr. President, parliamentary inquiry: Is there still time reserved to the Senator from Vermont?

How much?

I don't want to interfere with the majority leader, but I am not about to yield back that time, if I might mention for a moment, and then I will yield it back so he may speak, I hate to see records made on this floor that bear absolutely no relationship to the facts. The suggestion was made that there was one question on waterboarding out of hundreds of questions and that created the problem. Unlike Senators who may have spoken that way, I was there. I was there through the whole hearing on the first day. I was there through the whole hearing on the second day. I am probably the only Senator, other than possibly Senator Specter, who was there for every bit of it. There were several questions on this issue. In fact, the reason that as chairman I had a second day of hearings is because of some of the questions that were raised on the first day of hearings. I took the transcript and read it during that night because of it. There were questions on executive privilege, but there were questions on waterboarding.

Contrary to suggestions which seem to be more for political cover by some who may want to vote one way or the other, we do not need a new law on waterboarding. President Teddy Roosevelt did not need a law on that to find people had violated our laws 100 years ago. We did not need a new law on the question of waterboarding to prosecute Japanese war criminals for waterboarding Americans. We have not needed it at all. It is against the law. We do not need it. None of the military who write our Uniform Code of Military Justice need a new law to find it wrong. None of the Judge Advocate Generals need a new law to find it wrong. They have declared it wrong.

Our treaties, our other obligations find it wrong. Up until the last week or so of this administration, we would have objected to any other country using such techniques on Americans as wrong.

I understand the White House determines what their nominees want to say. That is fine. I have not lobbied any Senator one way or the other on this issue. But let us not pretend there was one question out of hundreds on waterboarding. There were many questions. Several Senators asked questions on this, more on the philosophy of: Is a President above the law? Can the President arbitrarily set people in this country above the laws of America or do the laws that we pass and their assignment to law by Presidents, is that a law that applies to every single American, including the President of the United States? Most of us feel the same way we learned in civics 101, that no one in America is above the law. That is the issue we raised in the Judiciary Committee. Those who are voting no on this is because they felt a great deal of concern about the answers.

Nobody questions Judge Mukasey's legal abilities. I find him a very attractive candidate for Attorney General. I do not find the ability to continue to vote for a myth that somehow the President is above the law anymore than those of us who voted to confirm General Petraeus were, as the White House then wanted to say, saying that we believed in everything the President was doing in Iraq. Many of us voted against the war in Iraq who then voted for General Petraeus because of his ability as a four star general. They are entirely different things. The suggestion otherwise, I find beneath the quality of discourse in this great body. I resent it. I reject it. Let people make up their mind how to vote one way or the other, but don't vote on red herrings. Don't vote on made-up ideas that we need to pass some law in the future and then, of course, we can be tough. In the future, we will do something and then we can be tough. That is sort of like saying: Gosh, if we had known we weren't being told the truth, we might have voted differently on Iraq. If we knew that waterboarding was bad, we might have voted differently.

Vote one way or the other. I will not question the motives of any Senator, no matter how they vote, either for or against this nominee. But let's not do it on a hypocritical pretext that the President is above the law when he is not or that the President can put any American above the law because he cannot. Let us not pretend that torture is not torture because it is, and it is beneath the great ideals of the most wonderful Nation on Earth.

I thank the Senator from Nevada and yield back the remainder of my time.

Mr. President, when the Judiciary Committee reported Federal reporters' shield legislation to the floor on October 23, I called on the full Senate to promptly consider and pass this important legislation. The Senate version of the Free Flow of Information Act, S. 2035, is bipartisan legislation that was favorably reported by the Judiciary Committee on a strong bipartisan vote. The House has already passed legislation on this same subject, H.R. 2102, with a strong, bipartisan and veto-proof majority of 398 to 21.

Both of these bipartisan bills are available and waiting for Senate action, and I believe that there are well over 60 votes in favor of passing a shield bill in the Senate. I strongly support the enactment of a Federal shield law for journalists, and I urge the Senate to promptly consider and pass Federal shield legislation.

All of us have an interest in enacting a balanced and meaningful first amendment privilege. According to a newly released study by Privacy International--a privacy, civil liberties and human rights watchdog organization, the United States is one of just a few established democracies around the world that does not have a law to protect journalists from being forced to reveal confidential sources. In fact, according to that study, approximately 100 countries have adopted laws that allow journalists to honor their promise of confidentiality.

Sadly, the press has become the first stop, rather than the last resort, for our government and private litigants when it comes to seeking information. This is a dangerous trend that can have a chilling effect on the press and the public's right to know.

Enacting Federal shield legislation would help to reverse this troubling trend. In fact, proceeding promptly to consideration of this legislation is something I strongly support. Should the Senate take up the bipartisan shield bill that overwhelmingly passed in the House, federal shield legislation could go immediately to the President's desk and be signed into law without delay this year.

The Senate bill has the support of a bipartisan coalition of Senators, including Senators Specter, Schumer, Lugar, Dodd, Graham, and myself, who have all united to cosponsor this legislation. In addition, more than 50 news media and journalism organizations support this legislation and the call for Senate action on this historic bill extends to editorial pages across the country, including The New York Times, Arizona Republic, L. A. Times, Salt Lake Tribune, and San Francisco Chronicle, among others.

The Senate and House bills protect law enforcement interests and safeguard national security. Moreover, both of these bills follow the lead of 33 States and the District of Columbia which have shield laws, and many other States, including Vermont, which recognize a common law reporters' privilege. Tellingly, the Bush administration has not identified a single circumstance where a reporters' privilege has caused harm to national security or to law enforcement, despite the fact that many courts have recognized such a privilege for years.

Given the overwhelming need and support for a federal shield law to protect the public's right to know, I urge the Senate to promptly consider and pass a Federal shield bill.

I ask unanimous consent that a copy of a support letter from the Media Coalition Supporting the Free Flow of Information Act, which is signed by 67 different news organizations, be printed in the Record.

Madam President, this great Nation has long stood for a commitment to justice and equal rights for all Americans. Opening the doors of opportunity to all who have something to contribute has been a key to America's success as the world's strongest economy, and as the world's most successful democracy. Our cultural diversity is a pillar of our strength, and the promise of equal rights is a fundamental freedom of our democracy. Today, the House passed the Employment Non- Discrimination Act of 2007, which would further promote and protect our country's diversity and every American's civil rights by further protecting Americans from discrimination in the workplace.

This important legislation would prohibit workplace discrimination by making it illegal to fire, refuse to hire, or refuse to promote employees simply based on a person's sexual orientation. Currently, Federal law provides basic legal protection against employment discrimination on the basis of race, gender, religion, national origin or disability but not sexual orientation. Discrimination on the basis of certain personal characteristics has no place in any workplace or in any State, and it is long overdue for Congress to extend American employees these protections. This legislation has broad support not only from civil rights groups but also from leading American corporations, because they understand that there is no place for discrimination in our workplaces.

I commend the House for passing the Employment Non-Discrimination Act of 2007, and I look forward to the Senate taking up this measure without delay.

Mr. President, I am pleased to introduce the Intellectual Property Enforcement Act of 2007. Congress is charged ``to promote the progress of science and useful arts,'' and part of promotion is protection. This legislation will enhance existing intellectual property enforcement laws, provide more resources to combat infringement, and harmonize copyright and trademark laws. I thank Senator Cornyn for joining me in this effort, which is a high priority of mine, and also of the creative communities and industries across the country.

Each year, counterfeiting and copyright infringement cost the U.S. economy billions of dollars. The International Anti-Counterfeiting Coalition estimates that counterfeiting and piracy cost American businesses $250 billion a year, and hundreds of thousands of jobs as well. Clearly, IP theft is big business, and that can devastate small businesses. No one knows this better than Vermont companies such as Hubbardton Forge, Vermont Teddy Bear Company, and Burton Snowboards. Each of these companies, and many others like them across the Nation invests time, money, and effort in the development of new products. When their products are infringed, it devalues the product and threatens the company.

Senator Cornyn and I have heard from a myriad of interested parties about the importance of protecting intellectual property, and have seen many enforcement proposals. The legislation we introduce today will serve as the core of our legislative effort this year. It will start the process of considering how to ensure that our enforcement laws are up to the task, and that the necessary resources are in place to enforce them. Other Senators have introduced legislation to address these issues, and the Department of Justice and others have suggested legislative language. These are all helpful to the debate, and I expect there will be more to come. Introduction of the Intellectual Property Enforcement Act of 2007 is the beginning of this important effort.

The centerpiece of the bill we introduce today gives the Department of Justice the ability to bring civil actions against copyright infringers. Punishment should fit the crime, and a civil action is often more appropriate to the wrong being done in such cases than is criminal prosecution. This concept has passed the Senate on three separate occasions, as the PIRATE Act. Next, this bill adds resources for agents to combat infringement. It does not matter how strong our laws are, if there are not enough agents, or if our agents do not have the proper expertise to investigate and prosecute crimes, piracy will flourish and harm our economy. Third, this bill allows for ``harmless errors'' on copyright registration forms. Copyright registration should not be voided by innocently checking the wrong box or misspelling a word on a form. Finally, this bill harmonizes the forfeiture provisions in the copyright and trademark statutes.

By enacting well-balanced enforcement laws, we can protect both the creators and the consumers of intellectual property. It is impossible to put a price tag on creativity, but we must do all we can to protect the fruits of creative labor.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I am pleased to introduce the Intellectual Property Enforcement Act of 2007. Congress is charged ``to promote the progress of science and useful arts,'' and part of promotion is protection. This legislation will enhance existing intellectual property enforcement laws, provide more resources to combat infringement, and harmonize copyright and trademark laws. I thank Senator Cornyn for joining me in this effort, which is a high priority of mine, and also of the creative communities and industries across the country.

Each year, counterfeiting and copyright infringement cost the U.S. economy billions of dollars. The International Anti-Counterfeiting Coalition estimates that counterfeiting and piracy cost American businesses $250 billion a year, and hundreds of thousands of jobs as well. Clearly, IP theft is big business, and that can devastate small businesses. No one knows this better than Vermont companies such as Hubbardton Forge, Vermont Teddy Bear Company, and Burton Snowboards. Each of these companies, and many others like them across the Nation invests time, money, and effort in the development of new products. When their products are infringed, it devalues the product and threatens the company.

Senator Cornyn and I have heard from a myriad of interested parties about the importance of protecting intellectual property, and have seen many enforcement proposals. The legislation we introduce today will serve as the core of our legislative effort this year. It will start the process of considering how to ensure that our enforcement laws are up to the task, and that the necessary resources are in place to enforce them. Other Senators have introduced legislation to address these issues, and the Department of Justice and others have suggested legislative language. These are all helpful to the debate, and I expect there will be more to come. Introduction of the Intellectual Property Enforcement Act of 2007 is the beginning of this important effort.

The centerpiece of the bill we introduce today gives the Department of Justice the ability to bring civil actions against copyright infringers. Punishment should fit the crime, and a civil action is often more appropriate to the wrong being done in such cases than is criminal prosecution. This concept has passed the Senate on three separate occasions, as the PIRATE Act. Next, this bill adds resources for agents to combat infringement. It does not matter how strong our laws are, if there are not enough agents, or if our agents do not have the proper expertise to investigate and prosecute crimes, piracy will flourish and harm our economy. Third, this bill allows for ``harmless errors'' on copyright registration forms. Copyright registration should not be voided by innocently checking the wrong box or misspelling a word on a form. Finally, this bill harmonizes the forfeiture provisions in the copyright and trademark statutes.

By enacting well-balanced enforcement laws, we can protect both the creators and the consumers of intellectual property. It is impossible to put a price tag on creativity, but we must do all we can to protect the fruits of creative labor.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, when the REAL ID Act was added to an emergency supplemental spending bill in 2005, with little debate or foresight, I believed that Congress had made a mistake. I was not alone, and since that time 38 States have either introduced or passed legislation opposing the law. Seventeen States have enacted laws in opposition. I have joined Senators Akaka, Sununu, Tester, Baucus, and Alexander in introducing legislation to repeal the driver's license provisions of the law and to replace them with the negotiated rulemaking process that had been originally enacted in the 2004 Intelligence Reform and Terrorist Prevention Act. That bill, which REAL ID superseded, was intended to improve the security of State driver's licenses through a cooperative partnership with the States and the private sector.

The Judiciary Committee held a hearing on May 8 of this year to examine whether the REAL ID Act is actually an effective way to improve our security. I agreed with many at the hearing who argued that the REAL ID Act was not an effective way to improve identity security, and the sacrifices Americans would be compelled to make in their personal privacy were unacceptable. All agreed more could and should be done to ensure the integrity of identification documents, but many cautioned that the REAL ID Act is not the most effective way to do it.

Opposition to the REAL ID Act has been bipartisan and widespread among the States and many Federal lawmakers. In addition to the enormous financial burdens placed on the States, the law raises serious privacy concerns about the Federal Government's interference in a responsibility traditionally left to the State. Proponents of the law proclaim it is not a national ID card. But when the Federal Government begins directing how a State driver's license is issued, what characteristics the card must have, and conditioning access to Federal buildings and airplanes on possession of a REAL ID card, it is difficult to think this is anything but the first, big step toward a national identification card that so many Americans oppose.

But the reality of the dissatisfaction among the American people is catching up with the administration. The Washington Post recently reported that Secretary Chertoff is expected to announce yet another delay for REAL ID's implementation deadline. Secretary Chertoff previously waived the May 2008 compliance deadline and set a new target of 2013 for nationwide compliance. Now Secretary Chertoff will reportedly extend this date to 2018 for drivers who are older than 40 or 50, and officials have said the Government will not bar those not possessing a REAL ID license from Federal facilities and airplanes.

Despite being faced with determined opposition from the States and many Members of Congress, the administration still refuses to reconsider implementation of the law and is ignoring the pleas of the States. Without buy-in from the States and the American people, this program is doomed to failure. Delaying the inevitable by pushing back deadlines is not the way we will improve identity security. Had the negotiated rulemaking provisions enacted in the 2004 Intelligence Reform and Terrorist Prevention Act been left intact, meaningful identity security improvements could already be underway. Unfortunately, instead of addressing the fundamental problems this law poses for the States, the administration appears content merely to prolong a contentious and unproductive battle to force the States to comply. Rather than improved security, this course will result in resentment, litigation, and enormous costs that States will be forced to absorb. The administration would do much better to treat the States as partners and forgo the paternalistic mandates that the American people are rejecting. That spirit of cooperation would result in much greater security than the administration's go-it-alone strategy to force compliance with another ill-conceived policy.

Like the Western Hemisphere Travel Initiative, the REAL ID Act represents precisely the big-government interference the President's party claims to dislike. The American people are demanding that the Federal Government take a second look at the wisdom of charging ahead with a national ID card, and the administration ought to listen carefully to what many have been saying since this law was enacted, before more time is wasted trying to force this unpopular and cumbersome law on the citizens of the United States. I welcome all Senators to join me and the other cosponsors of S. 717 in rejecting the burdensome mandates of REAL ID and advocating for a better system of securing our fundamental identification documents.

I have joined today with Senators Domenici, Kennedy, and Specter to introduce legislation to reauthorize the Mentally Ill Offender Treatment and Crime Reduction Act. I was a sponsor of the original authorization of this act in 2004, and I am proud that these programs have helped our State and local governments reduce crime by providing more effective treatment for the mentally ill.

All too often, people with mental illness rotate repeatedly between the criminal justice system and the streets of our communities, committing a series of minor offenses. Offenders find themselves in prisons or jails, where little or no appropriate medical care is available for them. This bill gives State and local governments the tools to break this cycle, for the good of law enforcement, corrections officers, the public's safety, and mentally ill offenders. More than 16 percent of adults incarcerated in U.S. jails and prisons have a mental illness, about 20 percent of youth in the juvenile justice system have serious mental health problems, and almost half the inmates in prison with a mental illness were incarcerated for committing a nonviolent crime. This is a serious problem that I hear about often when I talk with law enforcement officials and others in Vermont.

Under this bill, State and local governments can apply for funding to create or expand mental health courts or other court-based programs, which can divert qualified offenders from prison to receive treatment; create or expand programs to provide specialized training for criminal justice and mental health system personnel; create or expand local treatment programs that serve individuals with mental illness or co- occurring mental illness and substance abuse disorders; and promote and provide mental health treatment for those incarcerated in or released from a penal or correctional institution.

The grants created under this program have been in high demand, but only about 11 percent of the applications submitted have been able to receive funding due to inadequate Federal funds. This bill would increase funding of these programs and authorize $75 million to help communities address the needs of the mentally ill in our justice system. The bill also provides $10 million for law enforcement training grant programs to help law enforcement recognize and respond to incidents involving mentally ill persons.

This legislation brings together law enforcement, corrections, and mental health professionals to help respond to the needs of our communities. They know that the states have been dealing with the unique problems created by mentally ill offenders for many years, and that a federal support is invaluable. I look forward to working with them, and with Senators Domenici, Kennedy, Specter, and other Members, to see this bill enacted this Congress.

I have joined today with Senators Domenici, Kennedy, and Specter to introduce legislation to reauthorize the Mentally Ill Offender Treatment and Crime Reduction Act. I was a sponsor of the original authorization of this act in 2004, and I am proud that these programs have helped our State and local governments reduce crime by providing more effective treatment for the mentally ill.

All too often, people with mental illness rotate repeatedly between the criminal justice system and the streets of our communities, committing a series of minor offenses. Offenders find themselves in prisons or jails, where little or no appropriate medical care is available for them. This bill gives State and local governments the tools to break this cycle, for the good of law enforcement, corrections officers, the public's safety, and mentally ill offenders. More than 16 percent of adults incarcerated in U.S. jails and prisons have a mental illness, about 20 percent of youth in the juvenile justice system have serious mental health problems, and almost half the inmates in prison with a mental illness were incarcerated for committing a nonviolent crime. This is a serious problem that I hear about often when I talk with law enforcement officials and others in Vermont.

Under this bill, State and local governments can apply for funding to create or expand mental health courts or other court-based programs, which can divert qualified offenders from prison to receive treatment; create or expand programs to provide specialized training for criminal justice and mental health system personnel; create or expand local treatment programs that serve individuals with mental illness or co- occurring mental illness and substance abuse disorders; and promote and provide mental health treatment for those incarcerated in or released from a penal or correctional institution.

The grants created under this program have been in high demand, but only about 11 percent of the applications submitted have been able to receive funding due to inadequate Federal funds. This bill would increase funding of these programs and authorize $75 million to help communities address the needs of the mentally ill in our justice system. The bill also provides $10 million for law enforcement training grant programs to help law enforcement recognize and respond to incidents involving mentally ill persons.

This legislation brings together law enforcement, corrections, and mental health professionals to help respond to the needs of our communities. They know that the states have been dealing with the unique problems created by mentally ill offenders for many years, and that a federal support is invaluable. I look forward to working with them, and with Senators Domenici, Kennedy, Specter, and other Members, to see this bill enacted this Congress.

Madam President, it has been a little over a year since I last spoke in this Chamber about the fragile peace process in Sri Lanka. I want to take a moment to discuss the situation today because in the past year we have seen human rights in that small island nation steadily deteriorate. I also want to correct some confusion that may have occurred as a result of statements reported in the press regarding the Senate's action in connection with the fiscal year 2008 State, Foreign Operations appropriations bill. That bill passed the Senate by a vote of 81 to 12 on September 6, 2007, and we are waiting to begin conference discussions with the House of Representatives.

Over the years, I have been a strong supporter of U.S.-Sri Lankan relations. A good friend, Ambassador James Spain, served there, and the American people acted quickly to provide emergency assistance for Sri Lanka after the December 2004 tsunami devastated Sri Lanka's east, north, and southern coasts, claiming tens of thousands of lives. Beyond that, we have long supported the Sri Lankan Government's efforts to respond to acts of terrorism by the LTTE, which has been designated by the Department of State and the European Union as a foreign terrorist organization because of its attacks against civilians, assassinations of political leaders, forced recruitment of children, and other crimes.

We deplore these tactics. However, we are also aware that the LTTE has, at times, shown a willingness to participate in serious negotiations, as well as to respond to human rights concerns. These overtures should be pursued. We also recognize that the LTTE should not be equated with the Tamil community. There are many ethnic Tamils living in and outside of Sri Lanka who do not condone acts of violence and terrorism against civilians. Many have been victims of the LTTE themselves.

At the same time, our aid to the Sri Lankan Government is not a blank check. We have been increasingly concerned with reports of abuses by Sri Lankan Government forces--not from the LTTE or their supporters as some have inaccurately claimed but from the United Nations, the Department of State, and international human rights organizations. These reports are not ``disinformation'' or ``misinformation'' as some Sri Lankan officials have alleged. Rather, they contain specific, documented, consistent information indicating a steady increase in serious human rights violations by both Sri Lankan Government forces and the LTTE since the collapse of the ceasefire. While the first acts of aggression were attributed to the LTTE, these reports also implicate Government forces in attacks on civilians, extrajudicial executions, torture, and forced disappearances. There is also evidence that Sri Lankan Government forces have stood by while allied paramilitary organizations have carried out abuses, including forcibly recruiting child soldiers. With few exceptions, the Sri Lankan Government has yet to bring the perpetrators, including members of Government security forces, to justice.

It is important to note that the Sri Lankan Government's respect for human rights and the rule of law has deteriorated even outside conflict-affected areas. The Millennium Challenge Corporation suspended more than $11 million intended for Sri Lanka because of the deteriorating security situation and the Government's worsening performance on human rights. Freedom House, whose assessments of political rights and civil liberties are factored into the Millennium Challenge Corporation's analysis, stated ``The serious human rights abuses and excessive restrictions on freedom of speech and association by the government of Sri Lanka merit the country's removal from a list of eligible recipients for U.S. Millennium Challenge Account assistance.'' We want to see a Millennium Challenge compact for Sri Lanka, but these problems must first be recognized and effectively addressed.

An international human rights field presence, under the auspices of the United Nations, could do much to improve the situation. Given the gravity and scale of the violations witnessed in Sri Lanka, and particularly the inability of the Sri Lankan Government to monitor the abuses taking place in areas held by the LTTE, such a presence would help protect lives, document abuses by all sides, and support the Government and civil society in protecting the civilian population. The

Department of State has publicly endorsed such a role for the United Nations.

It is due to this information, from reputable sources, that the Senate attached three conditions to our assistance to the Sri Lankan military in the fiscal year 2008 State, Foreign Operations appropriations bill. Anyone who reviews those conditions should agree that they are reasonable and appropriate. They would require the Sri Lankan Government to be bringing to justice members of the military who have been credibly alleged to have committed gross violations of human rights; end unreasonable restrictions on access in the country by humanitarian organizations and journalists; and agree to the establishment of a field presence of the Office of the U.N. High Commissioner for Human Rights in Sri Lanka.

It is regrettable that rather than explain why the Sri Lankan Government should not meet such reasonable standards when it is seeking millions of dollars in U.S. taxpayer assistance, some Sri Lankan officials have attacked our motives and falsely attributed our actions to LTTE propaganda. Others have insisted that they are meeting these standards already, when the facts clearly indicate that far more needs to be done.

We want Sri Lanka to succeed in stopping terrorism, and we recognize that military force can be necessary against terrorist tactics. But there is no military solution to the Sri Lankan conflict, which has dragged on for more than two decades. Thousands of innocent people-- Sinhalese, Tamils, and Muslims--have been killed. More than 1,000 are reported to have ``disappeared'' in just the past 12 to 18 months, and many more before that. Hundreds of thousands of civilians have been displaced by the fighting. Families on both sides of the conflict have suffered terribly, and the country remains divided and no closer to peace.

Every time a Sri Lankan soldier violates international humanitarian law it alienates the very people in the Tamil community whose support the Government needs to combat terrorism. Our country has experienced a similar problem in Iraq, where killings of civilians have hurt our mission, tarnished our image and weakened the support of our allies.

I would hope that the Sri Lankan Government would see our action for what it is. We want to help, but not unconditionally. I believe the United States could and should play a more active role, with other key partners, in helping to facilitate negotiations on a political settlement. But rhetoric about human rights and the appointment of ineffectual commissions of inquiry that have no credibility, only goes so far. The situation remains grave and those responsible for abuses are rarely punished, making a peace agreement more difficult to achieve. A field presence of the Office of the High Commissioner for Human Rights, with sufficient mandate and capability to conduct full and unfettered monitoring throughout the country, communicate its findings to all sides of the conflict and the public, and provide advice and technical assistance, is overdue. Also urgently needed is greater access for humanitarian organizations to assist civilians caught in the crossfire and for journalists to report the facts.

The Sri Lankan people have suffered the consequences of ethnic discrimination, violence, and injustice for the better part of their country's history. We cannot solve Sri Lanka's conflict; only the Sri Lankan people can. But we can and want to continue helping if the Government demonstrates that it takes our concerns seriously.

Mr. President, I ask unanimous consent to have printed in the Record a letter dated October 31, 2007, from myself and Senator Specter to the majority leader.

Mr. President, oil prices closed at another record high yesterday over $93.50 a barrel. That is nearly triple the average price just 4 years ago, and we have reason to fear that oil may be on its way to over $100 a barrel and possibly to $120 a barrel. Gas prices are reportedly 65 cents a gallon higher than they were just a year ago. This is an unacceptable burden to hundreds of thousands of families across the country, and it harms American consumers as well as the American economy. This winter, the price of home heating oil will be a serious burden on thousands of Vermonters.

The relentless rise in oil prices should be another clear signal that we need to redouble efforts toward energy independence. As we develop alternative energy sources, we must keep focus on the artificial manipulation of oil and gas prices today. Demand for oil is rising, but members of the Organization of the Petroleum Exporting Countries, or OPEC, continue to collude to prevent the supply from matching that demand. As the Centre for Global Energy summarized it: ``Without more oil from OPEC, prices will continue to rise over the winter.'' In a properly functioning market, OPEC members would compete to serve the demand, but OPEC acts outside the basic principles of competition.

As the weather cools, rising prices for heating oil are an even greater cause for concern. Thousands of hard working Vermont families, seniors and disabled persons will experience considerable strain in coming months as they try to balance the cost of such necessities as home heating oil, prescription drugs and food on their tables. The Energy Information Administration forecasts that the average U.S. household will see a winter increase of 22 percent in heating-oil expenditures from last year. In fiscal year 2006, Congress appropriated over $3 billion for the critical Low Income Home Energy Assistance Program, LIHEAP. Yet in his fiscal year 2008 budget, President Bush has requested only half that amount, or $1.5 billion. While LIHEAP grants are decreasing, the number of applications is rising.

The American consumer is being harmed for the benefit of oil producing cartels. This is just wrong. When the President took office, Americans could fill their cars, heat their homes, and run their businesses on gasoline that cost $1.45 a gallon. Today, fuel prices have skyrocketed to an average $2.87 a gallon. Prices will, at times, fall, but because fuel prices are not properly subject to competition oversight and enforcement, the American consumer will only benefit from lower prices when it serves some other purpose of the cartel and foreign governments.

The administration must stop OPEC from artificially affecting prices in the United States. I joined Senator Kohl as an original cosponsor of his bipartisan NOPEC legislation that would hold accountable certain oil producing nations for their collusive behavior that has artificially reduced the supply and inflated the price of fuel.

When entities engage in anticompetitive conduct that harms American consumers, it is the responsibility of the Department of Justice to investigate and prosecute. It is wrong to let members of OPEC off the hook just because their anticompetitive practices come with the seal of approval of national governments.

It is time for the administration to take the side of American consumers, not the side of oil cartels. We cannot claim to be energy independent while we permit foreign governments to manipulate oil prices in an anticompetitive manner. Vermont families, and families across the country, need our help to make essential home heating more affordable this winter.

Mr. President, in the days following the terrorist attacks of September 11, Members of Congress on both sides of the aisle came together to pass comprehensive legislation entitled ``The Air Transportation Safety and System Stabilization Act.'' This measure provided victims the option of filing a claim with a national compensation program or seeking limited damages in one Federal district court--the United States District Court for the Southern District of New York. Unfortunately, the legislation we passed failed to grant that trial court with the power to serve and enforce subpoenas outside of the traditional 100-mile radius of the Southern District of New York, even in the very cities where the hijacked flights originated and where two of them crashed on the morning of September 11.

We were able to pass a legislative fix to this problem recently in the Senate. I understand that the House of Representatives is poised to pass the Senate bill today. I praise my colleagues on both sides of the aisle and in both Chambers for acting to provide nationwide service of subpoenas for the September 11 victims. Although no amount of compensation can replace a lost loved one, the Procedural Fairness for September 11 Victims Act offers a technical fix that is crucial to allowing victims and their families to have their claims fairly and thoroughly heard in court. I urge the President to sign this legislation into law without delay.

Mr. President, I would like to pay tribute to one of Vermont's outstanding teachers, Diane Bahrenburg, who last month was named the 2008 Vermont Teacher of the Year. Diane is an English teacher at Colchester High School in Vermont, where she has taught since 1979. I recently had the opportunity to meet Diane in my Washington office, and I was impressed with her intellect, her passion for teaching, and her commitment to the students of Colchester High School. As we talked about her classes and students, it was evident how much Diane cares about teaching.

In being chosen as Vermont's Teacher of the Year, Diane will have the opportunity to visit schools throughout our State and others around the country. Her travels will allow her to work with other teachers, sharing and discussing the methods that have helped her become so successful. Hopefully she will share with all of us how she has been able to balance the everyday demands of teaching in the classroom, with the work she has done as an adjunct instructor at Johnson State College and UVM, acting as the Vermont debate-forensics lead coach at Colchester High School, and being a parent.

We all know that teaching is a hard job. And it is a crucial job an indispensable link between our young people and their futures, as well as our Nation's future. The opportunities for recognition of teachers' accomplishments are too few and too far between. So I am so pleased that Diane is being recognized for all she has done over three decades, day in and day out, to educate our children and to make a constructive difference, one child at a time. Teachers are the instrument by which we measure the success of our schools. The knowledge, skill, and experience of teachers like Diane are exactly what we need in each and every one of our classrooms.

We are fortunate in Vermont. I continue to be impressed by the high level of achievement of Vermont's students and the academic gains that have been made because of the strong and committed efforts of teachers like Diane. In spite of the countless hours spent sorting through the maze of No Child Left Behind requirements, our teachers are able to inspire students to look beyond tests and find the true lessons of the classroom.

As an alumnus of St. Michael's College in Vermont, I would be remiss if I failed to note that Diane received her master's in education degree from St. Michael's College in 2000. I believe that she embodies the core principles of the college's education programs with her skill in maintaining an inclusive classroom, while keeping a balance between challenge and support and between individual and community. Diane is a model teacher, and after decades of teaching, she is incredibly worthy of this recognition. Diane, again I say thank you for all that you do, and on behalf of the Senate, we say congratulations.