Floor Statements

Mr. President, I rise to call my colleagues' attention to the historic developments that have unfolded in Sierra Leone in recent days.

On Monday, the Special Court for Sierra Leone, a body charged with bringing to justice those most responsible for the horrific war crimes that occurred in that country, issued its first indictments. Seven people were indicted for war crimes, crimes against humanity, and violations of international humanitarian law: Foday Sankoh, Johnny Paul Koroma, Sam Bockarie, Issa Hassan Sesay, Alex Tamba Brima, Morris Kallon, and Sam Hinga Normam. The subjects of these initial indictments--ranging from infamous RUF leader Sankoh to former junta leader Koroma to Cabinet Minister Norman--clearly illustrate the commitment of the Court and of Sierra Leone to genuinely break with the past, and to firmly asset the illegitimacy of all of the abuse and atrocities of the past, not just that portion committed by one faction or another. Five of the indicted individuals are under arrest today; two remain at large. I urge the international community to ensure that they are found, arrested, and turned over to the court.

This development is an important step toward breaking the cycle of violence and impunity in West Africa--a cycle that plunged the people of Sierra Leone into a long national nightmare from which they have only begun to recover. That same cycle is responsible for the ongoing suffering of the people of Liberia, and now threatens the once-stable country of Cote d'Ivoire. It is true that fear of accountability may provoke some actors to try to disrupt the progress made in Sierra Leone thus far, but the history of that beautiful country has shown that turning a blind eye to the abuses of the past only ensures more in the future. The people of Sierra Leone are bravely pursuing justice. They deserve international support.

Mr. President, I will oppose the nomination of Jay Bybee to the Ninth Circuit Court of Appeals. I was not able to attend the hearing that was held on Mr. Bybee because of Secretary Powell's presentation that morning to the United Nations. So I submitted written questions, as did a number of my colleagues. Unfortunately, I have to say after reviewing Mr. Bybee's response to those questions that his unwillingness to provide information in response to our inquiries is striking. On more than 20 occasions, Mr. Bybee refused to answer a question, claiming over and over again that as an attorney in the Department of Justice he could not comment on any advice that he gave at any time. This is unfortunately becoming a very familiar refrain of nominees before the Judiciary Committee.

I say unfortunate because it puts many of us in the position of having to oppose nominees because they have not been forthcoming. This was not the approach taken by at least some Bush nominees in the last Congress. Michael McConnell, for example, was forthcoming in his testimony and answers to written questions. He convinced me that he would put aside his personal views if he were confirmed to the bench.

There is an extensive body of legal work both written by or at least signed off on by this nominee, in this case unpublished Office of Legal Counsel opinions. The administration and the nominee are acting as if they are irrelevant to the confirmation process. A nominee cannot simply claim that he or she will follow Supreme Court precedent and ask us to take that assurance on faith, when there are written records that may help us evaluate that pledge, but the nominee refuses to make those records available.

Only three OLC opinions had been made publicly available since Mr. Bybee's confirmation to head that office. That is extraordinary, given that 1,187 OLC opinions dating back to 1996 are publicly available. This is a dramatic change in the Department's practice, a change that did not occur until this nominee was confirmed to be Assistant Attorney General for the office. While there may be some justification for releasing fewer opinions since 9/11, the wholesale refusal to share with the public and Congress important OLC decisions affecting a wide range of legal matters is, to say the least, troublesome.

But the failure to make OLC opinions available to the Judiciary Committee during the consideration of a nominee for a seat on a circuit court is unacceptable. Even White House Counsel Alberto Gonzalez, in a letter Mr. Bybee cites in his written responses, agrees that there is no universal bar to disclosure of OLC opinions. Gonzalez wrote that:

No bright-line rule historically has governed, or now

governs, responses to congressional requests for the general

category of Executive Branch ``deliberative documents.''

The administration should be able to agree to an acceptable procedure to allow the Judiciary Committee to review Mr. Bybee's OLC opinions. Given the recent history of many OLC opinions being made public, it is hard to believe that there are no opinions authored by Mr. Bybee that could be disclosed without damaging the deliberative process. Indeed, it is very hard to give credence to the idea that OLC's independence would be compromised by the release of some selection of the opinions of interest to members of the Judiciary Committee or the Senate.

Without the OLC memos, important questions about the nominee's views on how far the Government can go in the war on terrorism, enforcing the rights of women, enforcing the rights of gays and lesbians, and other important issues do not just remain unanswered, they apparently remain off-limits.

One of Mr. Bybee's responses may explain the reluctance to make any OLC materials available. In his response to a question from Senator Biden about why DOJ did not create an independent Violence Against Women Office at DOJ as required by Congress in a bill passed last year, Mr. Bybee left the impression that OLC may have either intentionally omitted or ignored the key portions of the legislative history in crafting its opinion.

In a series of questions from Senator Biden about his involvement in DOJ's decision on the VAWO, Mr. Bybee was given the opportunity to clarify his view of the law and correct what appears to be a clearly erroneous interpretation of the legislative history. Instead he seems to try to downplay the importance of his office's legal analysis on the decision. He states at one point:

The structure of the letter would thus indicate that

legislative history had no significant bearing on its

analysis or conclusion.

The members of the Judiciary Committee are entitled to better. How can we be confident that Mr. Bybee will put aside his personal policy views and fairly interpret and apply the law as passed by this body, when it seems that his office crafted a legal opinion designed to allow the Department of Justice to willfully ignore clear legislative intent? Perhaps the legal opinion itself will shed some light on this question, but we are not being permitted to see it.

Mr. Bybee also mischaracterized many of his own writings and speeches and failed to directly answer most of the questions put to him about them, claiming he would simply follow existing Supreme Court precedent. As we all know, the Supreme Court has not answered every legal question. It is our circuit court judges that are routinely in the position of having to address novel legal issues, not the Supreme Court.

For example, I asked Mr. Bybee about his views, published in a law review article, that we should consider repealing the 17th Amendment which provides for the direct election of Senators. The nominee now simply states that Senators should be popularly elected, almost claiming he had never argued to the contrary in his article.

His answers to my questions about this article were evasive, not forthcoming.

Another telling example is his response to a series of questions from Senator Edwards about a 1982 article in which he criticized the IRS decision to deny tax exempt status to Bob Jones University because of its racially discriminatory practices. The article is full of statements revealing a disdain for anti-discrimination policies and warned of a parade of horribles should the government continue to use its spending power to advance such policies.

Yet, in his written responses, Mr. Bybee seems to deny the very clear meaning of his written words. He goes so far as to claim that he was only commenting on the Government's change in position in the case and not the very important public policy issue at the heart of the case. That, it seems to me, is an adventurous reading of the article, at best.

Based on Mr. Bybee's unwillingness to answer any question about his views on a wide range of issues, his distortion of his own limited but telling written record, and the failure of the administration to provide any of his numerous OLC opinions to the Judiciary Committee for review, I must vote no on his nomination to the Ninth Circuit Court of Appeals.

Mr. President, today I introduce a Senate companion to a joint resolution already introduced in the House by Congressman Sherrod Brown of Ohio.

This resolution is quite simple. It requires the President to report to Congress on the potential costs and consequences of military action in Iraq before ordering the United States Armed Forces to war in Iraq. This is a resolution that simply requires that this country know what it is we are getting into before, not after, war breaks out.

Of course, it is my hope, and I very much believe the President when he asserts that it is his hope, that there will be no war. But judging from the administration's statements and Iraq's behavior, with each passing day it becomes more and more likely that the United States will engage in a major military operation in Iraq. It is entirely possible that we will undertake this operation without a great deal of international support. And while I have no doubt in my mind that our admirable men and women in uniform will be successful in any military engagement, I do have doubts about whether or not the American people truly understand the magnitude of the task the country is setting for itself--not only with regard to the military engagement itself, but with regard to occupation and reconstruction.

I do not believe that Americans have been told much about what the future holds beyond the most optimistic of scenarios, and frankly I do not believe that Congress has heard much about the full range of potential scenarios either.

This resolution would require that the President provide that information before ordering our men and women in uniform to war in Iraq.

The resolution asks for a full accounting of the implications for homeland security of initiating military action against Iraq. It asks for an accounting of the implications for the fight against terrorism. It asks for an accounting of the implications for regional stability in the Middle East, and for an accounting of the implications of war in Iraq for the proliferation of weapons of mass destruction.

This resolution recognizes that there may be positive and negative implications to consider. It does not pre-judge these issues. But it does acknowledge that Members of Congress, the elected representatives of the people, should be privy to the thinking of our experts and leaders in the executive branch about the effect of war in Iraq on all of these issues. It is our responsibility to weigh these questions, to weigh the consequences of starting a war.

And, while I do not doubt for a moment the skills and competence of our brave service men and women, I do know that their efforts alone are not enough to ensure a lasting victory. It is crucial to the ultimate success of U.S. policy, that the American people understand the potential risks and the potential rewards of this national undertaking. We are considering the American military occupation of a major Middle Eastern country, and we are considering this in a very dangerous time. This country must have its eyes open before we move forward.

This resolution also requires that the administration explain to Congress the steps that the United States and our allies will take to ensure that any and all weapons of mass destruction will be safeguarded from dispersal to other rogue states or international terrorist organizations. If the goal is disarmament, then defeating Saddam Hussein's forces is not going to accomplish the mission at hand. Do we know where the WMD sites are? One would assume that we would share that information with the inspectors if we had it. But if we do not, how will we ensure that WMD and the means to make them are not dispersed across Iraq's borders, or sold off to the highest bidder, in the event of invasion. Saddam Huessein's order is despicable and dangerous. But disorder is dangerous too. Again, we need to understand the risks, and we need to understand the plan.

This resolution requires the Administration to explain the plan for stabilization and reconstruction. Earlier this week the Senate Foreign Relations Committee held a hearing on reconstruction in Iraq. We had hoped to get answers to some of the basic questions that senior officials from the State and Defense Departments were utterly unable to respond to as recently as February. But the Administration canceled the appearance of General Jay Garner, the director for the Pentagon's Office of Reconstruction and Humanitarian Assistance, who was slated to come before the committee. And so the Foreign Relations Committee of the United States Senate is left scanning the newspapers to get a sense of Administration plans, extrapolating from tidbits in the press to understand potential costs, and quizzing very capable experts--but experts not privy to Administration planning--about the universe of possibilities. This is simply unacceptable.

This resolution calls for the Administration to clearly report to Congress on the nature and extent of the international support for military action against Iraq and the impact of military action against Iraq on allied support for the broader war on terrorism. I believe that this is the single most important issue before us. I know that I disagree with some of my colleagues on the wisdom of the Administration's policy in Iraq. But I am certain that none of us disagree on the proposition that the first priority of all of us in government must be the fight against terrorism. And we all know that we cannot fight terrorism alone. But I have heard directly from foreign officials who are telling me that it will be more difficult for them to be strong supporters of the fight against terrorism if the U.S. acts in Iraq without the United Nations' approval.

This resolution calls on the Administration to explain clearly the steps that it will take to protect United States soldiers, allied forces, and Iraqi civilians from any known or suspected environmental hazards resulting from military operations. Everyone in this body has heard from veterans of the Gulf War who suffer and struggle even today, long after their period of sacrifice for their country should have ended. Based on what we know from these veterans, it is entirely reasonable to demand a plan now, not after the fact.

The resolution also calls for the Administration to provide estimates of the American and allied military casualties, Iraqi military casualties, and Iraqi civilian casualties resulting from military action against Iraq, and measures that will be taken to prevent civilian casualties and adhere to international humanitarian law. I know that America is a resilient society and a resolute society. But I am not at all

sure that Americans have been prepared for anything but the best-case scenario, and that is a disservice to the American people and a disservice to our military.

This resolution calls for an estimate of the full costs associated with military action against Iraq, including, but not limited to, providing humanitarian aid to the Iraqi people and to neighboring nations in light of possible refugee flows, reconstructing Iraq with or without allied support, and securing long-term political stability in Iraq and the region insofar as it is affected by such military action. I can tell you that right now in the Budget committee, we are flying blind, trying to make fiscally responsible decisions for the future while the Administration remains unwilling to provide an honest accounting of what this war will cost, or what it will cost to meet the humanitarian needs of Iraq, or what the long process of reconstruction will cost. We know that these are not small figures. And unfortunately, it looks as though we will be proceeding without a great deal of international support, meaning less burden-sharing and more shouldering of this cost on our own. And that is why this resolution also calls for an accounting of the anticipated short and long term effects of military action on the United States economy and the Federal budget.

I feel strongly that we should have demanded this information long ago. But we continue to ask, because Congress continues to have constitutional responsibilities. And I continue to hear from a tremendous number of my constituents who are deeply concerned about the prospect of a war with Iraq. The sources of their concern and their views on the issue vary, but in virtually all cases, they want to understand the range of options before us, and they are demanding more information about the costs and commitments they will incur as a result of decisions that we make here. They are right to insist on that information, to insist that we exercise some foresight here and wrestle honestly with the consequences that may follow from taking military action. Without such a discussion, we cannot hope to answer the most important question before us--will a given course of action make the U.S. more or less secure in the end.

I urge my colleagues to support this resolution, and to insist that the Administration provide this information before war breaks out. I voted against the resolution authorizing the use of force in Iraq last fall, because I was uncomfortable with the Administration's shifting justifications for war, dissatisfied with the vague answers available at the time relating to our plans for dealing with weapons of mass destruction and reconstruction in Iraq, and most of all, because I was concerned that this action would actually alienate key allies in the fight against terrorism. But even those who voted differently surely must believe that we have a responsibility to anwser these questions now, and to share the answers with our constituents, so that this great country is operating not on wishful thinking or simple ignorance, but with an understanding of the facts before us, and the awesome task ahead.

Mr. President, today I introduce a Senate companion to a joint resolution already introduced in the House by Congressman Sherrod Brown of Ohio.

This resolution is quite simple. It requires the President to report to Congress on the potential costs and consequences of military action in Iraq before ordering the United States Armed Forces to war in Iraq. This is a resolution that simply requires that this country know what it is we are getting into before, not after, war breaks out.

Of course, it is my hope, and I very much believe the President when he asserts that it is his hope, that there will be no war. But judging from the administration's statements and Iraq's behavior, with each passing day it becomes more and more likely that the United States will engage in a major military operation in Iraq. It is entirely possible that we will undertake this operation without a great deal of international support. And while I have no doubt in my mind that our admirable men and women in uniform will be successful in any military engagement, I do have doubts about whether or not the American people truly understand the magnitude of the task the country is setting for itself--not only with regard to the military engagement itself, but with regard to occupation and reconstruction.

I do not believe that Americans have been told much about what the future holds beyond the most optimistic of scenarios, and frankly I do not believe that Congress has heard much about the full range of potential scenarios either.

This resolution would require that the President provide that information before ordering our men and women in uniform to war in Iraq.

The resolution asks for a full accounting of the implications for homeland security of initiating military action against Iraq. It asks for an accounting of the implications for the fight against terrorism. It asks for an accounting of the implications for regional stability in the Middle East, and for an accounting of the implications of war in Iraq for the proliferation of weapons of mass destruction.

This resolution recognizes that there may be positive and negative implications to consider. It does not pre-judge these issues. But it does acknowledge that Members of Congress, the elected representatives of the people, should be privy to the thinking of our experts and leaders in the executive branch about the effect of war in Iraq on all of these issues. It is our responsibility to weigh these questions, to weigh the consequences of starting a war.

And, while I do not doubt for a moment the skills and competence of our brave service men and women, I do know that their efforts alone are not enough to ensure a lasting victory. It is crucial to the ultimate success of U.S. policy, that the American people understand the potential risks and the potential rewards of this national undertaking. We are considering the American military occupation of a major Middle Eastern country, and we are considering this in a very dangerous time. This country must have its eyes open before we move forward.

This resolution also requires that the administration explain to Congress the steps that the United States and our allies will take to ensure that any and all weapons of mass destruction will be safeguarded from dispersal to other rogue states or international terrorist organizations. If the goal is disarmament, then defeating Saddam Hussein's forces is not going to accomplish the mission at hand. Do we know where the WMD sites are? One would assume that we would share that information with the inspectors if we had it. But if we do not, how will we ensure that WMD and the means to make them are not dispersed across Iraq's borders, or sold off to the highest bidder, in the event of invasion. Saddam Huessein's order is despicable and dangerous. But disorder is dangerous too. Again, we need to understand the risks, and we need to understand the plan.

This resolution requires the Administration to explain the plan for stabilization and reconstruction. Earlier this week the Senate Foreign Relations Committee held a hearing on reconstruction in Iraq. We had hoped to get answers to some of the basic questions that senior officials from the State and Defense Departments were utterly unable to respond to as recently as February. But the Administration canceled the appearance of General Jay Garner, the director for the Pentagon's Office of Reconstruction and Humanitarian Assistance, who was slated to come before the committee. And so the Foreign Relations Committee of the United States Senate is left scanning the newspapers to get a sense of Administration plans, extrapolating from tidbits in the press to understand potential costs, and quizzing very capable experts--but experts not privy to Administration planning--about the universe of possibilities. This is simply unacceptable.

This resolution calls for the Administration to clearly report to Congress on the nature and extent of the international support for military action against Iraq and the impact of military action against Iraq on allied support for the broader war on terrorism. I believe that this is the single most important issue before us. I know that I disagree with some of my colleagues on the wisdom of the Administration's policy in Iraq. But I am certain that none of us disagree on the proposition that the first priority of all of us in government must be the fight against terrorism. And we all know that we cannot fight terrorism alone. But I have heard directly from foreign officials who are telling me that it will be more difficult for them to be strong supporters of the fight against terrorism if the U.S. acts in Iraq without the United Nations' approval.

This resolution calls on the Administration to explain clearly the steps that it will take to protect United States soldiers, allied forces, and Iraqi civilians from any known or suspected environmental hazards resulting from military operations. Everyone in this body has heard from veterans of the Gulf War who suffer and struggle even today, long after their period of sacrifice for their country should have ended. Based on what we know from these veterans, it is entirely reasonable to demand a plan now, not after the fact.

The resolution also calls for the Administration to provide estimates of the American and allied military casualties, Iraqi military casualties, and Iraqi civilian casualties resulting from military action against Iraq, and measures that will be taken to prevent civilian casualties and adhere to international humanitarian law. I know that America is a resilient society and a resolute society. But I am not at all

sure that Americans have been prepared for anything but the best-case scenario, and that is a disservice to the American people and a disservice to our military.

This resolution calls for an estimate of the full costs associated with military action against Iraq, including, but not limited to, providing humanitarian aid to the Iraqi people and to neighboring nations in light of possible refugee flows, reconstructing Iraq with or without allied support, and securing long-term political stability in Iraq and the region insofar as it is affected by such military action. I can tell you that right now in the Budget committee, we are flying blind, trying to make fiscally responsible decisions for the future while the Administration remains unwilling to provide an honest accounting of what this war will cost, or what it will cost to meet the humanitarian needs of Iraq, or what the long process of reconstruction will cost. We know that these are not small figures. And unfortunately, it looks as though we will be proceeding without a great deal of international support, meaning less burden-sharing and more shouldering of this cost on our own. And that is why this resolution also calls for an accounting of the anticipated short and long term effects of military action on the United States economy and the Federal budget.

I feel strongly that we should have demanded this information long ago. But we continue to ask, because Congress continues to have constitutional responsibilities. And I continue to hear from a tremendous number of my constituents who are deeply concerned about the prospect of a war with Iraq. The sources of their concern and their views on the issue vary, but in virtually all cases, they want to understand the range of options before us, and they are demanding more information about the costs and commitments they will incur as a result of decisions that we make here. They are right to insist on that information, to insist that we exercise some foresight here and wrestle honestly with the consequences that may follow from taking military action. Without such a discussion, we cannot hope to answer the most important question before us--will a given course of action make the U.S. more or less secure in the end.

I urge my colleagues to support this resolution, and to insist that the Administration provide this information before war breaks out. I voted against the resolution authorizing the use of force in Iraq last fall, because I was uncomfortable with the Administration's shifting justifications for war, dissatisfied with the vague answers available at the time relating to our plans for dealing with weapons of mass destruction and reconstruction in Iraq, and most of all, because I was concerned that this action would actually alienate key allies in the fight against terrorism. But even those who voted differently surely must believe that we have a responsibility to anwser these questions now, and to share the answers with our constituents, so that this great country is operating not on wishful thinking or simple ignorance, but with an understanding of the facts before us, and the awesome task ahead.

Mr. President, I will oppose S. 3, the Partial Birth Abortion Ban Act, and instead will support a constitutionally sound alternative.

Mr. President, I understand that people on all sides of this issue hold sincere and strongly held views. I respect the deeply held views of those who oppose abortion under any circumstances. Like most Americans, I would prefer to live in a world where abortion is unnecessary. I support efforts to reduce the number of abortions through family planning and counseling to avoid unintended pregnancies.

I have always believed that the decisions in this area are best handled by the individuals involved, in consultation with their doctors and guided by their own beliefs and unique circumstances, rather than by government mandates. I support Roe v. Wade, which means that I agree that government can restrict abortions when there is a compelling State interest at stake. I have previously voted to ban postviability abortions unless the woman's life is at risk or the procedure is necessary to protect the woman from grievous injury to her physical health, which is why I will again be voting for the Durbin alternative to S. 3.

Since the Senate last debated this issue in 1999, the Supreme Court has ruled on a statute that is almost identical to the language of the bill before us today. In June 2000, in Stenberg v. Carhart, the Court held that the State law, a Nebraska statute, banning so-called partial birth abortions was unconstitutional. The Court found that the law was so vague and overbroad that it posed an undue burden on a woman's right to choose by encompassing safe and common abortion procedures used prior to viability. The Court also found that, even in banning abortion procedures after viability, the State must include an exception for the health of the mother.

The Senate now has the Supreme Court's guidance, as we consider legislation regulating late-term abortions. This is guidance that the Senate did not have when we previously debated legislation like S. 3. I feel very strongly that Congress should seek to regulate abortions only within the constitutional parameters set forth by the

U.S. Supreme Court. Yet in light of the Supreme Court's 2000 decision, the bill before us today, S. 3, is unconstitutional on its face. It is so vague and overbroad that it, too, could unduly burden a woman's right to choose prior to viability.

I might add that I would have preferred that S. 3 had been first reviewed by the Judiciary Committee on which I serve, rather than having been brought straight to the Senate floor. The Judiciary Committee should hold hearings and review the bill prior to its consideration by the full Senate. This is especially important because the Supreme Court has now struck down a law that is almost identical to the bill before us today. There have been no hearings in the Senate Judiciary Committee to consider this bill since the Court's Carhart decision. Perhaps, if the Judiciary Committee had more thoroughly reviewed this legislation, it would have reported a bill that could have withstood constitutional scrutiny.

The Durbin alternative amendment would ban abortions by any method after a fetus is viable, except when serious medical situations dictate otherwise. I support the Durbin amendment because it recognizes that, in some circumstances, women suffer from severely debilitating diseases specifically caused or exacerbated by a pregnancy, or are unable to obtain necessary treatment for a life-threatening condition while carrying a pregnancy to term. The exceptions in the Durbin amendment are limited to conditions for which termination of the pregnancy is medically indicated. It correctly retains the option of abortion for mothers facing extraordinary medical conditions--such as breast cancer, preeclampsia, uterine rupture, or non-Hodgkin's lymphoma--for which termination of the pregnancy may be recommended by the woman's physician due to the risk of grievous injury to the mother's physical health or life. By clearly limiting the medical circumstances where postviability abortions are permitted, the Durbin amendment protects fetal life in cases where the mother's health is not at such high risk. In contrast, S. 3 provides no exception at all to protect the health of the mother.

I understand that the Carhart decision did not define the health exception or limit it to grievous physical injury. I recognize that it is not clear whether the narrow health exception contained in the Durbin amendment would be upheld, if it comes before the Court. To date, I have supported this narrow definition of the exception necessary to protect the physical health of the woman because I believe that it strikes the right balance between preserving a woman's right to choose and concerns that abortion procedures late in pregnancy should only be used in rare circumstances. I voted for the Daschle amendment in the 105th Congress and the Durbin amendment in the 106th Congress and again in this Congress, because they reflect this position.

The Durbin amendment properly seeks to ensure that the exceptions to the ban on postviability abortions are properly exercised. It requires a second doctor to certify the medical need for a postviability abortion. The second doctor requirement will ensure that postviability abortions take place only when continuing the pregnancy would prevent the woman from receiving treatment for a life-threatening condition related to her physical health or would cause a severely debilitating disease or impairment to her physical health.

The Durbin alternative strikes the right balance between protecting women's constitutional right to choose and the right of the state to protect future life after viability. It protects a woman's physical health throughout her pregnancy, while insisting that only grievous, medically diagnosable conditions justify aborting a viable fetus. Both fetal viability and women's health would have been determined by the physician's best medical judgement, as they must be, in concurrence with another physician.

I hope that, as the Senate considers this bill and the proposed amendments, we do so in full recognition of the strong feelings about this issue on all sides. We should respect these differences and strive to legislate in this area in a way that is constitutionally sound. That is why I will oppose S. 3 and instead will support the Durbin substitute amendment.

I rise to draw the Senate's attention to events in Zimbabwe, where a continuing political and economic crisis is devastating the country and threatening the future of the southern African region. A combination of corruption at the highest levels of government, political desperation leading to ill-conceived economic and agricultural policies implemented in chaotic fashion, and severe political repression have brought the country to its knees. Already devastated by the HIV/AIDS pandemic, Zimbabwe is now gripped by a food crisis--one in large part caused by the government's policies. Nearly 40 percent of Zimbabweans are malnourished. This in a country that used to be a net exporter of food to the region.

Members of Zimbabwe's ruling party and their cronies have led their own country to ruin--even starvation--in order to manipulate the population and retain power. We are talking about a government that tortures independent journalists, beats respected civil society leaders who have testified before Congress, murders opposition supporters, and recently even arrested and detained a U.S. diplomat.

Last week, President Bush signed an executive order freezing the assets of 77 Zimbabwean individuals responsible for this repression and abuse, and prohibiting Americans from having business dealings with them. This is a step many of us in Congress had been anticipating for some time. Just last month I asked Secretary of State Powell about the status of the asset freeze, and more recently I spoke with the President's National Security Advisor, Dr. Condoleezza Rice, about this matter. I am glad the delay is over, and I commend the President for taking this step.

I was recently in Botswana and South Africa, and it is clear the consequences of the crisis are spilling over into other parts of the southern African region. Zimbabweans desperate to escape are spilling across borders. Foreign investors are nervous about engagement in the region. And the muted reaction of other African leaders is calling into question their commitment to the basic principles so critical to the development of the region.

I also commend the President and the administration for making it clear that the U.S. condemnation of the Zimbabwean government has nothing to do with race, and everything to do with basic principles like the rule of law, democratic governance, and freedom of expression. As the ranking member of the Subcommittee on African Affairs, I look forward to continuing to work with the administration, with colleagues on both sides of the aisle, with African leaders, and with the many brave and capable Zimbabweans who are working to stop Zimbabwe's decline into disorder and to realize the potential of the Zimbabwean people.

Mr. President, I rise to take note of International Women's Day, which people around the world commemorated last Saturday. For nearly a century, women's groups worldwide have paused on March 8 to celebrate the achievements and contributions of women in all fields of human endeavor throughout our history. It is a special occasion to remember the progress women have made and to reflect upon the injustices and hardships they still face.

When I arrive here a decade ago, there were only six women in the Senate, and four of them had just come in with me in the Class of `92. Today there are 14. Of the 18 women who have ever been elected to a full term in the Senate, 13 are here now. There are now 62 women in the House of Representatives--the most ever. And Nancy Pelosi recently became the first woman ever chosen to lead a majority party in the Congress. Around the world, at latest count, almost 500 million people live in countries with female elected heads of government.

These are encouraging signs that we are making progress toward achieving full equality for women in the political realm. But even after the great advances of the past decade, women, who are more than half the electorate, account for only 14 percent of each House of the U.S. Congress. This is just one example of how, in so many areas, we still have a long way to go.

Women have made tremendous strides in the last century. In the United States today, more women than ever are attending college and earning post-graduate degrees. More women are entering the workforce and starting their own companies. But although equal pay for equal work has been the law of the land since 1963, on average, women still earn substantially less than men. Wage discrimination persists, costing families thousands of dollars each year. I am proud to support legislative efforts to correct this discrepancy.

While many women are going to work, many have to sacrifice time spent with their children in order to afford child care, education, and health care for their kids. Too often, women and children fall through the cracks of

our system. Violence against women is still all too prevalent in our country. Domestic violence is the leading cause of injury among women of child-bearing age. One out of every six American women has been a victim of a rape or an attempted rape. Many rapes go unreported. Only recently have States begun to recognize crimes such as stalking or marital rape.

Outside the United States, the situation for women is often far starker. Last year, the world came to understand the brutal treatment of Afghan women under the reign of the Taliban. Unfortunately, the Taliban regime was just an extreme example of the kinds of repression and denial of basic freedoms that women face in much of the developing world. Women in many places are denied such basic rights as owning property. They are more likely to live in poverty, suffer from malnutrition, and lack access to education. Despite the expansion of women's health care research and practices in the last two decades, women still have unequal access to these services.

Such policies are not only unjust, they are unwise. Numerous studies have shown that one of the best investments a developing society can make is educating its girls. In societies where women are literate, infant mortality is lower and children are healthier and better fed. ``Women are critical players in ensuring household food security and nutrition,'' according to the International Fund for Agricultural Development. ``Increasing the economic resilience of the poor is largely about enabling women to realize their socio-economic potential more fully and improve the quality of their lives. To do so, women need access to assets, services, knowledge and technologies, and must be active in decision-making processes.'' This is important to keep in mind as we grapple this year with food crises in Africa and elsewhere.

As we contemplate going to war with Iraq, we should bear in mind that women often suffer more than men from armed conflict. Women and girls are among those most affected by the violence, economic instability, and displacement associated with warfare, and they frequently are threatened by rape and sexual exploitation, whether at home, in flight, or in refugee camps. Rape and sexual assault have often been used as weapons of war. The U.N. Security Council passed a resolution on Women, Peace and Security in 2000. Yet the deliberate killing, rape, mutilation, forced displacement, abduction, trafficking, and torture of women and girls continue unabated in contemporary armed conflicts, according to UNIFEM.

Although it is usually men who go off to war, women often bear much of the burden. It is therefore crucial that women be active and respected participants in peace-building and reconstruction.

In peacetime as well, women are often victims of domestic violence and illegal trafficking for slavery and prostitution. In some countries, women fall victim to ``honor killings,'' a deplorable practice whereby women are murdered by male relatives for actions that are perceived to bring dishonor to the family.

The Senate will likely soon be considering landmark legislation to deal with the global problem of HIV/AIDS, which I hope to be able to support. Here again, women must be at the center of our deliberations. Statistics compiled by UNAIDS show that both the spread and impact of HIV and AIDS disproportionately affect women and adolescent girls who are socially, culturally, biologically, and economically more vulnerable. In 1997, 41 percent of HIV-infected adults worldwide were women. In the latest report, they accounted for half. In North Africa and the Middle East, 54 percent of HIV-positive adults are women; in the Caribbean, 52 percent are. U.N. experts believe that women's empowerment is one of the only AIDS vaccines available today in most of the world, and that gender equality should be a guiding principle in the fight against HIV/AIDS.

I have had the opportunity to travel to numerous countries in Africa and see firsthand the devastating toll that HIV/AIDS and other infectious diseases are taking on the people of that continent. Young women are especially at risk. The United Nations reports that in Africa girls aged 15 to 19 are infected with HIV at a rate of 15 to 23 percent, whereas infection rates among boys of the same age group are 3 to 4 percent.

Mr. President, the protection of women's rights is vital to the success of promoting fundamental human rights. The Senate can work towards protecting women's rights and improve the status of women domestically and internationally by acting upon the United Nations Convention on the Elimination of Discrimination against Women, or CEDAW. CEDAW is the most comprehensive treaty on women's human rights, addressing almost all forms or discrimination in areas such as education, employment, marriage and family, health care, politics, and law. It has been over two decades since the United States signed this treaty, and it still awaits consideration before the Senate. Once again, I urge the Committee on Foreign Relations to take up this treaty and finally allow the Senate the opportunity to offer its advice and consent.

In conclusion, as we honor women everywhere and celebrate their accomplishments and contributions to history, we must recognize that there is still more to be done in the struggle for gender equity. Discrimination and violence against women still exist here at home and abroad. The United States and the rest of the international community must reaffirm their commitment to promote gender equality and human rights around the world.

Mr. President, today, with great admiration and as a proud alumnus, I congratulate the University of Wisconsin in Madison men's basketball team for their victory over the University of Illinois this week. This victory allowed the Badgers to claim the Big Ten conference title outright for the first time since 1947. As a lifelong Badger, I am proud of their accomplishment and I look forward to their play in the postseason.

In this, the 105th season of men's basketball at UW-Madison, the players and the coaching staff won their first consecutive conference crown since the 1923 and 1924 seasons. For the second year in a row, Badger basketball has made the people in Madison and around Wisconsin and the country proud to be Badgers. With this win, Coach Bo Ryan becomes only the third coach in Big Ten history to win titles in his first two seasons as coach. With this championship, UW-Madison continues its long tradition of dominance in Big Ten athletics.

As a graduate of UW-Madison, I take great pride in commending our men's basketball team, and I wish Coach Ryan and his Badger team all the best in postseason play. Wisconsin is behind you, and we wish you all the luck. Go Badgers.

I compliment the Senator from Michigan for his tremendous leadership on this issue.

I rise today to add my thoughts to the debate on the first arms control treaty between the United States and Russia during the 21st century, and to offer an amendment that will reaffirm the role of the Senate in the treaty extension and withdrawal process.

When the Senate adopts this resolution of ratification, as I expect that it will be a wide margin, the Moscow Treaty will be on its way to becoming the law of the land, and the Senate will have fulfilled its constitutional responsibility to provide advice and consent to its ratification.

As a member of the Foreign Relations Committee, I believe that we covered a lot of ground in the series of hearings that the Committee had to examine this brief, 3-page document last year, and that we explored a number of the concerns that I and a number of members of the Committee and of the Senate have regarding the issues of compliance and verification, the lack of a timetable for the reductions required by the treaty, the fact that this treaty does not require that any nuclear warheads actually be destroyed, and a number of other important issues.

I continue to be troubled by the language contained in article IV of the Moscow Treaty regarding the process by which one of the Parties may withdraw from this treaty. I am concerned that either of the Parties would be able to withdraw with only 3 months' written notice and without a reason. And unlike other arms control treaties, the Moscow Treaty does not require that the Parties cite ``supreme national interest'' upon announcing withdrawal. In fact, this concept is not even mentioned in article IV.

As my colleagues may recall, I found the President's decision to unilaterally withdraw the United States from the 1972 Anti-Ballistic Missile Treaty last year troubling on both policy and constitutional grounds. I discussed this issue at some length with Secretaries Powell and Rumsfeld during the Foreign Relations Committee's hearings on this treaty last year, and I am troubled by the administration's contention that consultation with and approval by the Senate would not be required to withdraw from the Moscow Treaty.

I agree with the Senator from Michigan. The Senate has a constitutional role to play in treaty withdrawal, and I am concerned that the administration is not taking seriously our role in this process.

While I recognize that Declaration (6) in the resolution before the Senate today urges the President to consult with this body prior to withdrawing from the Moscow Treaty, I am concerned that there is no specific requirement for such consultation.

So, Mr. President, I send a second-degree amendment to the desk and I ask for its immediate consideration.

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

Mr. President, the second-degree amendment that I offer today would add to the underlying Levin amendment a provision that would require the President to obtain the approval of two-thirds of the Senate before withdrawing from or extending this treaty.

Mr. President, Article II, Section 2 of the Constitution states that the President ``shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided that two thirds of the Senators present concur. . . .''

The Senator from Michigan pointed out in his remarks that the Constitution is silent on the process by which the United States can withdraw from a treaty, and the record in the Congress and the executive branch is mixed. However, I believe and I think many others believe the intent of the Framers as explained by Thomas Jefferson is clear. In section 52 of Jefferson's Manual, he writes:

Treaties are legislative acts. A treaty is the law of the

land. It differs from other laws only as it must have the

consent of a foreign nation, being but a contract with

respect to that nation.

Article II, Section 3 of the Constitution states that the President shall:

take Care that the laws be faithfully executed. . . .

Jefferson continues:

Treaties being declared, equally with the laws of the

United States, to be the supreme law of the land, it is

understood that an act of the legislature alone can declare

them infringed and rescinded. This was accordingly the

process adopted in the case of France in 1798.

It is worth noting, that four signers of the Constitution were serving in Congress when this first treaty termination occurred--by an Act of Congress--in 1798, just 11 years after the Constitutional Convention.

It is clear to me, as it was to Thomas Jefferson, that the Senate has a constitutional role to play in terminating treaties. Since the advice and consent of the Senate is required to enter into a treaty, this body should at a minimum be consulted before the President makes the decision to withdraw this country from a treaty, and especially from a treaty of this magnitude.

As Jefferson noted, a treaty is equal with a law. A law cannot be declared to be repealed by the President alone. Only an Act of Congress can repeal a law. Action by the Senate or the Congress should be required to terminate a treaty. Anything less could tip the scale dangerously in favor of the executive branch.

That said, I recognize it is unlikely that my amendment would be adopted, or that the President would agree to move forward with this process if my amendment were included in this resolution of ratification, but I very much thought we ought to make this point on the floor of this body that is charged by the Constitution with this responsibility. It is a responsibility which I believe was intended by the Founders, that we act specifically with a two-thirds vote to withdraw from a treaty.

Amendment No. 253 To Amendment No. 252, Withdrawn

In light of the reality here, I now withdraw my amendment.

Mr. President, I regret that this Treaty will move forward without a requirement for a Senate vote on its abrogation or extension, but I do express my support for the amendment offered by the Senator from Michigan, Mr. Levin, of which I am pleased to be a cosponsor. I also want to thank the Senator for his work on this important issue.

The Levin amendment is consistent with my view that the Senate should--at a minimum--be consulted if the President decides to withdraw from or extend this treaty in the future. I believe that this is a step in the right direction, and I urge my colleagues to support the Levin amendment.

I yield the floor.

Mr. President, I am pleased today to show my support for the Milk Import Tariff Equity Act of 2003 by being an original cosponsor of Senator Craig's bill. This legislation will prevent foreign dairy products from continuing to circumvent U.S. trade laws.

Currently, milk protein concentrate, MPC, is not subject to the same quotas required of other dairy products. Foreign dairy producers have begun exploiting this loophole by blending previously processed dairy proteins with nonfat dry milk to boost its protein content so that it qualifies as milk protein concentrate. This allows the milk protein concentrate to circumvent any laws that would subject the imports to tariff rate quotas.

The result has been a flood of foreign dairy blends being imported in the U.S. market, displacing sales of domestic dairy products and lowering prices for American dairy farmers.

As milk prices are at historic lows, down about 38 percent from prices last year, this flood of foreign dairy products has put a strain on many of the dairy farmers in my State of Wisconsin.

Since many of the blended products imported into this country are heavily subsidized, American farmers are forced to compete on an unfair playing field. This loophole in our tariff schedule allows certain heavily subsidized foreign dairy products nearly unfettered access to our dairy markets, hurting the American dairy farmers.

As I travel across Wisconsin, I have heard from any dairy farmers who are struggling to stay in business. Many of these farmers are concerned about the flood of unfair imports that are hurting our American dairy markets.

In March of 2001, the General Accounting Office, GAO, released a report that highlighted the increase of milk protein concentrates coming into this country under outdated trade laws. The report pointed to a loophole in our trade laws that has resulted in increased imports of blended dairy proteins. The importing of blended dairy proteins is being done solely for the purpose of avoiding the U.S. tariff rate quota for nonfat dry milk.

The GAO study determined that MPC imports surged by more than 600 percent in the six years before the report was released. MPC imports lower prices for U.S. dairy farmers by displacing sales of domestic dairy products.

Since I have received the results from the General Accounting Office study that reported this loophole in U.S. trade laws, I have participated in a bipartisan effort to amend this loophole, so that we may protect our dairy farmers from unfair trade practices and help them in the struggle to farm on such an unfair playing field.

This bill would close this loophole by regulating milk protein concentrate imports in the same manner all other dairy import products are regulated. It would correct a loophole that exists in U.S. trade law that is contributing to such low dairy prices experienced in my state of Wisconsin and across the Nation.

This loophole depresses the price of milk for farmers, costs U.S. taxpayers money, and gives foreign dairy producers an unfair advantage over our own dairy farmers. It is time for this Congress to stand behind our farmers and that is why I support the Milk Import Tariff Equity Act of 2003.

Mr. President, I am pleased today to show my support for the Milk Import Tariff Equity Act of 2003 by being an original cosponsor of Senator Craig's bill. This legislation will prevent foreign dairy products from continuing to circumvent U.S. trade laws.

Currently, milk protein concentrate, MPC, is not subject to the same quotas required of other dairy products. Foreign dairy producers have begun exploiting this loophole by blending previously processed dairy proteins with nonfat dry milk to boost its protein content so that it qualifies as milk protein concentrate. This allows the milk protein concentrate to circumvent any laws that would subject the imports to tariff rate quotas.

The result has been a flood of foreign dairy blends being imported in the U.S. market, displacing sales of domestic dairy products and lowering prices for American dairy farmers.

As milk prices are at historic lows, down about 38 percent from prices last year, this flood of foreign dairy products has put a strain on many of the dairy farmers in my State of Wisconsin.

Since many of the blended products imported into this country are heavily subsidized, American farmers are forced to compete on an unfair playing field. This loophole in our tariff schedule allows certain heavily subsidized foreign dairy products nearly unfettered access to our dairy markets, hurting the American dairy farmers.

As I travel across Wisconsin, I have heard from any dairy farmers who are struggling to stay in business. Many of these farmers are concerned about the flood of unfair imports that are hurting our American dairy markets.

In March of 2001, the General Accounting Office, GAO, released a report that highlighted the increase of milk protein concentrates coming into this country under outdated trade laws. The report pointed to a loophole in our trade laws that has resulted in increased imports of blended dairy proteins. The importing of blended dairy proteins is being done solely for the purpose of avoiding the U.S. tariff rate quota for nonfat dry milk.

The GAO study determined that MPC imports surged by more than 600 percent in the six years before the report was released. MPC imports lower prices for U.S. dairy farmers by displacing sales of domestic dairy products.

Since I have received the results from the General Accounting Office study that reported this loophole in U.S. trade laws, I have participated in a bipartisan effort to amend this loophole, so that we may protect our dairy farmers from unfair trade practices and help them in the struggle to farm on such an unfair playing field.

This bill would close this loophole by regulating milk protein concentrate imports in the same manner all other dairy import products are regulated. It would correct a loophole that exists in U.S. trade law that is contributing to such low dairy prices experienced in my state of Wisconsin and across the Nation.

This loophole depresses the price of milk for farmers, costs U.S. taxpayers money, and gives foreign dairy producers an unfair advantage over our own dairy farmers. It is time for this Congress to stand behind our farmers and that is why I support the Milk Import Tariff Equity Act of 2003.

Mr. President, I ask unanimous consent that editorials concerning the Estrada nomination from

the Portland Oregonian, the Omaha World, and the Los Angeles Times, and an article on the same topic by Chris Mooney that appeared in TomPaine.com, be printed in the Record.

Madam President, I want to speak briefly on the clear violation of Judiciary Committee rules that occurred last week in our executive business meeting. It was a sad moment for our committee and does not bode well for the harmonious functioning of the committee this year. I believe that a discussion of this issue is also relevant to our debate of Miguel Estrada. In both cases we are talking about rules that protect the rights of the minority in this body from being run over by the majority. And in both cases we are talking about the use of those protections by the minority not to stonewall or block action by the majority indefinitely but to seek information about nominees that has not been forthcoming.

Let me quickly review the background of what happened last Thursday. All of this goes back, of course, to our duty under Article II, Section 2 of the Constitution, which specifically provides that the President shall appoint judges to our courts ``by and with the Advice and Consent of the Senate.'' The Senate's role is not just a matter of historical tradition, or comity with the Executive Branch, it is constitutionally mandated. All of us on the Judiciary Committee, and in the full Senate take this responsibility very seriously.

One of the ways that we exercise our constitutional responsibilities in this area, on behalf of the Senate and our colleagues who are not on the committee, is to closely examine the records of judicial nominees. We do that in part by holding hearings so that nominees can be questioned about their records, their judicial philosophy, their previous writings, their judicial opinions if they are currently or have been judges on other courts, and their views on legal issues. These hearings are not a mere formality, they are crucial to the role of the Judiciary Committee in carrying out the Senate's constitutionally mandated responsibilities.

This year, it appears that there is an effort underway to push through nominations in the shortest possible time. Prior to the President's Day recess, the committee held three nominations hearings in three weeks. By February 12, the committee had held hearings on five circuit court nominees. This is an extraordinary pace, particularly when you consider that the earliest that the committee had held hearings on five circuit court court nominees during President Clinton's term was April 29. In some years, that milestone wasn't passed until June, July, or even September, and in 1996, the committee never held a hearing on a 5th nominee to the circuit courts.

So this effort really gives the impression of a forced march. Our constitutional responsibilities are being subjugated to a schedule that seems to be aimed at forcing nominations through as quickly as possible, without regard to the Senate's prerogatives.

The Democrats on the committee have not tried to block all of the nominees. We voted on Miguel Estrada, and Jeffrey Sutton, and Jay Bybee in the ordinary course of business on the committee. But when it came to two other nominees, Justice Deborah Cook, a nominee for the Sixth Circuit and John Roberts, nominated to the D.C. Circuit, we tried to draw a line.

The reason we made that effort was that Justice Cook and Mr. Roberts were both considered in a single hearing on January 29th, along with Jeffrey Sutton, who was reported to the floor just prior to the recess. Actually, it is misleading to say they were considered in that hearing. They were all sitting at the witness table, but the vast majority of the questioning was directed to Mr. Sutton. There simply was not sufficient time for members of this committee to examine the other nominees.

A number of Senators asked repeatedly that further hearings be scheduled so that Senators could examine Justice Cook and Mr. Roberts. We even made the offer to have a single additional hearing for these two important nominees, even though we would prefer to examine a single controversial nominee at a time. We were rebuffed at every turn, even when it became abundantly clear that the single hearing would not suffice to let members of this committee examine the records of all of these nominees.

The single hearing that was held on January 29, 2003, on these three nominees was unprecedented. Never before has the committee held one hearing on three circuit court nominations over the objections of the minority. Indeed, it is highly unusual for the committee to hold a single hearing on even two controversial nominees, as a 1985 agreement among Senators Dole, Byrd, Thurmond, and Biden demonstrates. That agreement was that only one controversial nomination would be considered at a time. It gave the minority some control over the pace of nominations, without of course giving it any kind of veto.

A number of Democrats on the committee raised the need for an additional hearing on Justice Cook and Mr. Roberts publicly during the hearing and privately during the breaks. We have repeated that request to the chairman of the committee on many occasions subsequently.

Early last week, when it become clear that the chairman would not schedule a second hearing so that Justice Cook and Mr. Roberts could receive proper consideration by the committee, we tried another approach. The nominees had said they are available to meet with us to answer any questions we have. So we sent a letter to the White House and requested that the two nominees make themselves available for a meeting to answer further

questions. In order to be able to proceed quickly in the committee following such a meeting, we suggested a joint meeting that Senators could attend at different times based on their individual schedules. We stated that we would have a transcript of the meeting prepared so that we could refer back to the nominees' answers, and that the meeting would be open to the public.

The response from the White House, which has repeatedly offered to have nominees meet with us privately was an immediate ``No.'' The immediate and unqualified refusal to our reasonable request seem to be part of the forced march. The Administration seems to be saying, ``We are to going to jam these nominees through, our way, regardless of how reasonable your request is.''

So that left us with only one option: To delay the vote on these two nominees until agreement could be reached on a further hearing, or some substitute for it. Some Senators on the Democratic side were simply not prepared to vote on Justice Cook or Mr. Roberts. We did not believe the committee has been given adequate opportunity to assess the qualifications and examine the record of Justice Cook and Mr. Roberts.

So when the chairman of the committee asked for a vote on Justice Cook, we objected. The proper course under our committee's longstanding Rule IV was for the chairman to hold a vote on a motion to end debate on the matter. The Rule provides that debate will be ended if that motion carries by a majority vote, including one member of the minority. In this case, our side was united in opposing ending the debate, so the motion would have failed. It is, in effect, as the chairman of the committee himself recognized in 1997 when the Rule was invoked in connection with the Bill Lann Lee nomination, a kind of filibuster rule in the committee. The vote to end debate is like a cloture vote, and it cannot succeed unless at least one member of the minority votes for it.

Now I have heard the argument, made by the chairman of the committee in a letter to the Democratic leader, that this rule was designed to allow a majority of the committee to force a so-called ``rogue chairman'' to hold a vote on a matter when he doesn't want to, but not to limit the chairman's ability to call for a vote over the objections of the minority. That is clearly an erroneous interpretation. It conflicts with text of the rule, the practice of the committee for 24 years under five separate chairmen, including the current chairman, and with the history of the rule itself.

The rule was adopted in 1979 when Senator Kennedy chaired the committee. The committee at that time had 10 Democrats and 7 Republicans. Until that time there was no way to end debate in the committee. Recent years had seen controversial matters such as the Equal Rights Amendment stalled in committee. The Civil Rights era had seen the committee headed by a segregationist chairman block civil rights legislation by allowing it to be filibustered and never voted on. Chairman Kennedy sought a new committee rule to allow him to bring a matter to a vote. His original proposal was simply to let a majority vote of the committee end debate. On January 24, 1979, he proposed such a committee rule.

Republicans on the committee, including Senator Thurmond who was the ranking member, and Senators Simpson, Dole, Cochran, and Hatch, spoke up to protest that the minority should retain the right to debate a matter for as long as it felt it needed to. The next week, the committee reached agreement and adopted Rule IV, which has been in effect ever since. The compromise ended the ability of one or a few Senators to tie up the committee indefinitely. But it gave the majority the power to end debate if it could convince one member of the minority to agree. That was the compromise reached, and that is the rule we have had for over two decades.

The chairman's argument that the rule places no limit on his ability to end debate is clearly answered by this history. It is clearly wrong. The committee rule was violated when Justice Cook and Mr. Roberts were reported over the objection of some members without a ``cloture vote'' in the committee. There is simply no question about this.

It is very disappointing to have to discuss and debate committee rules on the floor of this body. This might seem like a petty matter. But it isn't. Honoring the rules of the Senate and the rules of the committees gives credibility and legitimacy to the work we do here. Rules are the hallmark of a democracy. In many ways our rules are analogous to the rule of law in our society. We have to respect those rules or we have nothing left.

In situations like these, I often think of the words of the great philosopher Sir Thomas More as portrayed in the play ``A Man for All Seasons.'' More questions a man named Roper whether he would level the forest of English laws to punish the Devil. ``What would you do?'' More asks, ``Cut a great road through the law to get after the Devil?'' Roper affirms, ``I'd cut down every law in England to do that.'' To which More replies:

And when the last law was down, and the Devil turned round

on you--where would you hide, Roper, the laws all being flat?

This country's planted thick with laws from coast to coast .

. . and if you cut them down . . . d'you really think you

could stand upright in the winds that would blow then? Yes,

I'd give the Devil benefit of law, for my own safety's sake.

It is clear from the history of Rule IV that it was insisted on by Republican Senators then in the minority to preserve their rights in committee. They should not cut down that forest just to have their way now that they are in the majority. We cannot permit that kind of results-oriented approach to the rules of the committee or of this body. The rules of this body, like the laws of this country, protect all of us. We must stand up to efforts to ignore them. What happened in the committee last week did not reflect well on this body. I sincerely hope that the chairman will reconsider his rulings and return some comity to our proceedings.

Let me just finally say that I voted Present on both Justice Cook and Mr. Roberts. I have not made a final decision on their nominations. I could very well support one or both of them here on the floor. But I think the committee must hold a proper hearing on them, giving all Senators a better opportunity to be well informed on these nominees before exercising their constitutional responsibilities.

Mr. President, today I am introducing important legislation to affirm Federal jurisdiction over the waters of the United States. I am pleased to have three members of the Environment and Public Works Committee, the Senator from California, Mrs. Boxer, the Senator from Vermont, Mr. Jeffords, and the Senator from Connecticut, Mr. Lieberman, as original cosponsors of this bill.

In the U.S. Supreme Court's January 2001 decision, Solid Waste Agency of Northern Cook County versus the Army Corps of Engineers, a 5 to 4 majority limited the authority of Federal agencies to use the so-called migratory bird rule as the basis for asserting Clean Water Act jurisdiction over non-navigable, intrastate, isolated wetlands, streams, ponds, and other bodies of water.

This decision, known as the SWANCC decision, means that the Environmental Protection Agency and Army Corps of Engineers can no longer enforce Federal Clean Water Act protection mechanisms to protect a waterway solely on the basis that it is used as habitat for migratory birds.

In its discussion of the case, the Court went beyond the issue of the migratory bird rule and questioned whether Congress intended the Clean Water Act to provide protection for isolated ponds, streams, wetlands and other waters, as it had been interpreted to provide for most of the last 30 years. While not the legal holding of the case, the Court's discussion has resulted in a wide variety of interpretations by EPA and Corps officials that jeopardize protection for wetlands, and other waters.

The wetlands at risk include prairie potholes and bogs, familiar to many in Wisconsin, and many other types of wetlands.

In effect, the Court's decision removed much of the Clean Water Act protection for between 30 percent to 60 percent of the Nation's wetlands. An estimate from my home state of Wisconsin suggested that more than 60 percent of the wetlands in my state lost federal protection. Wisconsin is not alone. The National Association of State Wetland Managers has been collecting data from states across the country. For example, Nebraska estimates that it will lose protection for more than 40 percent of its wetlands. Indiana estimates they will lose 31 percent of total wetland acreage and 74 percent of the total number of wetlands. Delaware estimates the loss of protection for 33 percent or more of their freshwater wetlands.

These wetlands absorb floodwaters, prevent pollution from reaching our rivers and streams, and provide crucial habitat for most of the nations ducks and other waterfowl, as well as hundreds of other bird, fish, shellfish and amphibian species. Loss of these waters would have a devastating effect on our environment.

In addition, by narrowing the water and wetland areas subject to Federal regulation, the decision also shifts more of the economic burden for regulating wetlands to State and local governments. My home State of Wisconsin has passed legislation to assume the regulation of isolated waters, but many other States have not. This patchwork of regulation means that the standards for protection of wetlands nationwide is unclear, confusing, and jeopardizes the migratory birds and other wildlife that depend on these wetlands.

Since 2001, the confusion over the interpretation of the SWANCC decision is growing. On January 15, 2003, the EPA and Army Corps of Engineers published in the Federal Register an Advanced Notice of Proposed Rulemaking raising questions about the jurisdiction of the Clean Water Act. Simultaneously, they released a guidance memo to their field staff regarding Clean Water Act jurisdiction.

The agencies claim these actions are necessary because of the SWANCC case. But both the guidance memo and the proposed rulemaking go far beyond the holding in SWANCC. The guidance took effect right away and has had an immediate impact. It tells the Corps and EPA staff to stop asserting jurisdiction over isolated waters without first obtaining permission from headquarters. Based on this guidance, waters that the EPA and Corps judge to be outside the Clean Water Act can be filled, dredged, and polluted without a permit or any other long-standing Clean Water Act safeguard.

The rulemaking announces the Administration's intention to consider even broader changes to Clean Water Act coverage for our waters. Specifically, the agencies are questioning whether there is any basis for asserting Clean Water Act jurisdiction over additional waters, like intermittent streams. The possibility for a redefinition of our waters is troubling because there is only one definition of the term ``water'' in the Clean Water Act. The wetlands program, the point source program which stops the dumping of pollution, and the non-point program governing polluted runoff all depend on this definition.

If we don't protect a category of waters from being filled under the wetlands program, we also fail to protect them from having trash or raw sewage dumped in them, or having other activities that violate the Clean Water Act conducted in them as well.

Congress needs to re-establish the common understanding of the Clean Water Act's jurisdiction to protect all waters of the U.S.--the understanding that Congress held when the Act was adopted in 1972--as reflected in the law, legislative history, and longstanding regulations, practice, and judicial interpretations prior to the SWANCC decision.

The proposed legislation does three things, and it is a very simple bill. It adopts a statutory definition of ``waters of the United States'' based on a longstanding definition of waters in the EPA and Corps of Engineers' regulations. Second, it deletes the term navigable from the Act to clarify that Congress's primary concern in 1972 was to protect the nation's waters from pollution, rather than just sustain the navigability of waterways, and to reinforce that original intent. Finally, it includes a set of findings that explain the factual basis for Congress to assert its constitutional authority over waters and wetlands on all relevant Constitutional grounds, including the Commerce Clause, the Property Clause, the Treaty Clause, and Necessary and Proper Clause.

In conclusion, I am very pleased to have the support of so many environmental and conservation groups, and well as organizations that represent those who regulate and manage our country's wetlands, such as: the Natural Resources Defense Council, Earthjustice, the National Wildlife Federation, Sierra Club, American Rivers, the National Audubon Society, U.S. Public Interest Research Group, Defenders of Wildlife, the Ocean Conservancy, Trout Unlimited, the Izaac Walton League, and the Association of State Floodplain Managers. They know, as I do, that we need to re-affirm the federal government's role in protecting our water. This legislation is a first step in doing just that.

I ask unanimous consent that the text of the legislation be printed in the Record.

Mr. President, I rise today to introduce legislation on behalf of Wisconsin's seniors and taxpayers whose wallets are being gauged by certain pharmaceutical companies. My legislation is in response to certain pharmaceutical companies' decision to target seniors who are crossing into Canada to get more affordable prescription drugs for their own use.

If these pharmaceutical companies are going to price gauge seniors's wallets, they don't deserve the taxpayers' support.

A growing number of American seniors are obtaining their prescription drugs from Canada for personal use.

Unfortunately, many of these seniors who are crossing the boarder to access more affordable prescription drugs for their personal use are being targeted by the very pharmaceutical companies that receive millions in tax breaks.

I recently received a call from seniors in my state that Glaxo Smith Klein had decided to stop supplying Canadian pharmacies that resell its drugs to Americans, thereby preventing them from receiving the same benefits these pharmacies provide to Canadians.

The Seniors in my State were not the only ones who took notice of this action. On February 21st of this month, Seniors groups from 12 States, including Wisconsin, sent Glaxo a message by launching a boycott of nonprescription products of Glaxo-Smith-Kline.

Congress should also send all pharmaceutical companies a message that this practice simply is unacceptable.

I think the single most important step we can take is to modernize Medicare and make it better is to eliminate the current inequities in the Medicare system and provide the prescription drug coverage senior citizens need.

At the same time Congress should pass legislation, that Senators Schumer, McCain, and I introduced that would bring lower-cost generic drugs to the market faster and lower the cost of prescription drugs by $60 billion.

Until we pass a comprehensive prescription drug benefit, we must ensure that seniors are not targeted by pharmaceutical companies. If these drug companies actively discriminate against American seniors, we should not provide them tax breaks.

That's why my legislation would deny tax breaks to drug companies who discriminate against Canadian pharmacies that provide Americans the same discount that they provide to Canadians.

I urge my colleagues to join me in cosponsoring this legislation.

Mr. President, today I am introducing important legislation to affirm Federal jurisdiction over the waters of the United States. I am pleased to have three members of the Environment and Public Works Committee, the Senator from California, Mrs. Boxer, the Senator from Vermont, Mr. Jeffords, and the Senator from Connecticut, Mr. Lieberman, as original cosponsors of this bill.

In the U.S. Supreme Court's January 2001 decision, Solid Waste Agency of Northern Cook County versus the Army Corps of Engineers, a 5 to 4 majority limited the authority of Federal agencies to use the so-called migratory bird rule as the basis for asserting Clean Water Act jurisdiction over non-navigable, intrastate, isolated wetlands, streams, ponds, and other bodies of water.

This decision, known as the SWANCC decision, means that the Environmental Protection Agency and Army Corps of Engineers can no longer enforce Federal Clean Water Act protection mechanisms to protect a waterway solely on the basis that it is used as habitat for migratory birds.

In its discussion of the case, the Court went beyond the issue of the migratory bird rule and questioned whether Congress intended the Clean Water Act to provide protection for isolated ponds, streams, wetlands and other waters, as it had been interpreted to provide for most of the last 30 years. While not the legal holding of the case, the Court's discussion has resulted in a wide variety of interpretations by EPA and Corps officials that jeopardize protection for wetlands, and other waters.

The wetlands at risk include prairie potholes and bogs, familiar to many in Wisconsin, and many other types of wetlands.

In effect, the Court's decision removed much of the Clean Water Act protection for between 30 percent to 60 percent of the Nation's wetlands. An estimate from my home state of Wisconsin suggested that more than 60 percent of the wetlands in my state lost federal protection. Wisconsin is not alone. The National Association of State Wetland Managers has been collecting data from states across the country. For example, Nebraska estimates that it will lose protection for more than 40 percent of its wetlands. Indiana estimates they will lose 31 percent of total wetland acreage and 74 percent of the total number of wetlands. Delaware estimates the loss of protection for 33 percent or more of their freshwater wetlands.

These wetlands absorb floodwaters, prevent pollution from reaching our rivers and streams, and provide crucial habitat for most of the nations ducks and other waterfowl, as well as hundreds of other bird, fish, shellfish and amphibian species. Loss of these waters would have a devastating effect on our environment.

In addition, by narrowing the water and wetland areas subject to Federal regulation, the decision also shifts more of the economic burden for regulating wetlands to State and local governments. My home State of Wisconsin has passed legislation to assume the regulation of isolated waters, but many other States have not. This patchwork of regulation means that the standards for protection of wetlands nationwide is unclear, confusing, and jeopardizes the migratory birds and other wildlife that depend on these wetlands.

Since 2001, the confusion over the interpretation of the SWANCC decision is growing. On January 15, 2003, the EPA and Army Corps of Engineers published in the Federal Register an Advanced Notice of Proposed Rulemaking raising questions about the jurisdiction of the Clean Water Act. Simultaneously, they released a guidance memo to their field staff regarding Clean Water Act jurisdiction.

The agencies claim these actions are necessary because of the SWANCC case. But both the guidance memo and the proposed rulemaking go far beyond the holding in SWANCC. The guidance took effect right away and has had an immediate impact. It tells the Corps and EPA staff to stop asserting jurisdiction over isolated waters without first obtaining permission from headquarters. Based on this guidance, waters that the EPA and Corps judge to be outside the Clean Water Act can be filled, dredged, and polluted without a permit or any other long-standing Clean Water Act safeguard.

The rulemaking announces the Administration's intention to consider even broader changes to Clean Water Act coverage for our waters. Specifically, the agencies are questioning whether there is any basis for asserting Clean Water Act jurisdiction over additional waters, like intermittent streams. The possibility for a redefinition of our waters is troubling because there is only one definition of the term ``water'' in the Clean Water Act. The wetlands program, the point source program which stops the dumping of pollution, and the non-point program governing polluted runoff all depend on this definition.

If we don't protect a category of waters from being filled under the wetlands program, we also fail to protect them from having trash or raw sewage dumped in them, or having other activities that violate the Clean Water Act conducted in them as well.

Congress needs to re-establish the common understanding of the Clean Water Act's jurisdiction to protect all waters of the U.S.--the understanding that Congress held when the Act was adopted in 1972--as reflected in the law, legislative history, and longstanding regulations, practice, and judicial interpretations prior to the SWANCC decision.

The proposed legislation does three things, and it is a very simple bill. It adopts a statutory definition of ``waters of the United States'' based on a longstanding definition of waters in the EPA and Corps of Engineers' regulations. Second, it deletes the term navigable from the Act to clarify that Congress's primary concern in 1972 was to protect the nation's waters from pollution, rather than just sustain the navigability of waterways, and to reinforce that original intent. Finally, it includes a set of findings that explain the factual basis for Congress to assert its constitutional authority over waters and wetlands on all relevant Constitutional grounds, including the Commerce Clause, the Property Clause, the Treaty Clause, and Necessary and Proper Clause.

In conclusion, I am very pleased to have the support of so many environmental and conservation groups, and well as organizations that represent those who regulate and manage our country's wetlands, such as: the Natural Resources Defense Council, Earthjustice, the National Wildlife Federation, Sierra Club, American Rivers, the National Audubon Society, U.S. Public Interest Research Group, Defenders of Wildlife, the Ocean Conservancy, Trout Unlimited, the Izaac Walton League, and the Association of State Floodplain Managers. They know, as I do, that we need to re-affirm the federal government's role in protecting our water. This legislation is a first step in doing just that.

I ask unanimous consent that the text of the legislation be printed in the Record.