Floor Statements

Mr. President, our relationship with India is very important and I fully support developing closer strategic ties with India. I had the opportunity to visit India earlier this year, and I returned with a renewed appreciation of the vital relationship between our two countries.

One of the topics I discussed with senior Indian government officials was the proposed U.S.-India civil nuclear cooperation agreement that we are considering today. This agreement does a great deal more than bring our two countries closer; it dramatically shifts 30 years of nonproliferation policy and seriously undermines our efforts to limit the spread of nuclear weapons. If we pass this legislation today, we will be making America--and the world--less safe.

The cornerstone of the nuclear nonproliferation regime, the Nuclear Non-Proliferation Treaty, NPT, is based on the central premise that non-nuclear weapons states agree not to try to acquire nuclear weapons in exchange for cooperation on peaceful civilian nuclear energy programs. India chose not to take part in this grand bargain and instead decided to become a nuclear weapons state. That is India's sovereign right. But it is our sovereign right--and our longstanding policy--to not cooperate with any state that chooses to acquire nuclear weapons.

In fact, signatories to the NPT--including the United States--are specifically prohibited from assisting, encouraging, or inducing any nonsignatory to develop nuclear weapons. And yet it has been made clear by numerous experts and even by officials of this administration that this agreement could allow India to expand its weapons program by freeing up domestically produced nuclear materials.

If the Senate passes this bill, we will be undermining the Nuclear Non-Proliferation Treaty, the international nonproliferation regime, and U.S. national security. This agreement could fuel an arms race that would have direct implications for regional stability--a particularly worrisome outcome given the history of turbulence in the region. Given the gravity of this issue, I am extremely disappointed that the Congress is rushing consideration of the agreement--without time to consider the most relevant intelligence, without testimony from independent experts, and quite likely in violation of the Hyde Act.

As a member of the Senate Foreign Relations and Intelligence Committees, I have had a chance to study this issue closely. Over the past 2 years, I have spoken with a range of individuals from all sides: senior Bush administration officials, business groups, nonproliferation and arms control experts, senior Indian officials, and concerned constituents in my home state of Wisconsin. I have also reviewed the supporting classified documents--something I hope all my colleagues have also done. After reviewing those documents, I remain deeply concerned about how this agreement will impact our national security.

I laid my concerns last Congress when we first considered this issue. Since then, little has been done to address my core concerns. The threat of nuclear weapons to the United States, and the spread of these weapons and the material needed to make them, are among the gravest dangers that our country faces. By passing this legislation, we are weakening, not strengthening the international regime created to monitor and restrict their proliferation. The United States, as a signatory to the Nuclear Non-proliferation Treaty, should be working to strengthen the international treaties and regimes that have been designed to prevent the spread of nuclear weapons. By passing this agreement in its current format we are doing exactly the opposite.

This deal will not only undermine the nonproliferation regime, but it may also indirectly benefit India's weapons program. Two weeks ago, at a Senate Foreign Relations Committee hearing, Secretary Burns acknowledged that there can be no way to guarantee that cooperating with India's civilian energy program will not indirectly benefit its weapons program. And yet despite this frank response, supporters of this bill are determined to rush it though Congress. I am concerned that Pakistan could feel the need to respond to India's enhanced capacity by increasing its own production of nuclear materials, setting off an arms race in South Asia. Besides regional instability, there is another danger to increased Pakistani nuclear stockpiles: the risk that al-Qaida could obtain such weapons. This threat is real and should not be ignored.

In addition to these serious national security concerns, there are legitimate procedural ones. This bill appears not to meet the requirements of the legislation Congress overwhelmingly adopted to authorize the agreement, the Hyde Act. I opposed the Hyde Act because I didn't think it went far enough--now it turns out the administration does not even feel bound by it. To give just one example, the Hyde Act required that any technologies or materials transferred pursuant to this agreement must be maintained under safeguards forever. Indian officials have balked at this requirement and indicated that they would take materials out of safeguards if their fuel supply was interrupted. That means that if India tests a nuclear device and we cut off future trade, India could turn around and use all of the reactors and fuel we have provided for its weapons program, just as it did in 1974. The Bush administration couldn't be troubled to even get a promise from India that it would honor the safeguards and this legislation does nothing to address this problem.

In late August the 45 members of the Nuclear Suppliers Group, NSG, met in Vienna to discuss whether they should overturn 30 years of precedent and open up nuclear trade with India despite the lack of comprehensive safeguards on India's nuclear facilities. While some NSG members attempted to reduce the negative impact this change will inevitably have on our ability to prevent the spread of sensitive nuclear materials, in the end they were unsuccessful. In the face of the Bush administration's significant pressure for a ``clean'' exemption, there wasn't much they could do.

This undertaking by the Bush administration is particularly troubling in light of the recent report by the Institute for Science and International Security, ISIS, which indicates that the U.S. Government has not devoted sufficient attention to ensuring that India adequately protects sensitive nuclear and nuclear-related information. If this report is even partially accurate, we should all be gravely concerned. Thanks to our efforts, India is now eligible to buy advanced enrichment and reprocessing technologies. If these technologies are ever leaked, our ability to prevent acts of nuclear terrorism could be greatly diminished.

With everything else going on right now it is clear there has not been adequate time to review the agreement and its supporting documents. Instead, we are ramming this through Congress so we can hand the Bush administration a victory--regardless of the threat it poses to our national security.

Many of my colleagues have said that this agreement will bring India into the mainstream but that appears to be wishful thinking. Why should India sign the Comprehensive Test Ban Treaty or stop producing weapons grade material if it now has access to all the technology and know-how it could need? India can now enjoy almost all the benefits afforded under the NPT, regardless of the fact that it is still not a signatory.

Proponents of nuclear trade argue that because certain Indian facilities will be placed under safeguards, this agreement will inhibit proliferation. This is not true. The purpose of safeguards is to prevent the diversion of nuclear materials to weapons programs. By providing India new reactors and materials, this agreement frees up domestic resources for India's weapons program. Rather than bringing India into the ``nuclear mainstream,'' this deal could enable the expansion of its weapons program.

I am pleased to cosponsor the Dorgan-Bingaman amendment that would ensure that the United States cuts off trade with India in the wake of nuclear tests and that we sanction any other nation that continues such trade. I hope the Senate will adopt it, and I applaud the efforts of my colleagues to improve this bill. I offered an amendment in committee that would have helped close the loophole in the nonproliferation regime created by the NSG exemption, and I was disappointed that this amendment was defeated. However, after careful review, I have come to the conclusion that even if all of these improvements were adopted, this deal would be fatally flawed.

Passing this bill will undermine international nonproliferation standards, potentially encourage a disastrous regional arms race and threaten our country's security. I intend to vote against this agreement and urge my colleagues to do the same.

Mr. President, I will oppose the Wall Street bailout plan. Though well intentioned, and certainly much improved over the original Treasury proposal, it is deeply flawed and in effect asks the taxpayer to bear the burden of serious lapses of judgment by private financial institutions, their regulators, and the enablers in Washington who paved the way for this catastrophe by enacting measures removing the safeguards that had protected consumers and the economy since the Great Depression.

I regret Senate leadership has opted to add a number of unrelated measures to this package. Whether this was done as a sweetener to make the bailout pill go down a bit more easily or as a way to dispose of remaining legislation in one giant package, the end result is a package that is less straightforward and much more likely to spur doubts among voters about the bailout portion of the package. The bailout package was already a big enough question mark in the public's mind before this dubious maneuver was concocted.

I strongly support some of the unrelated measures being added to the bailout package. The mental health parity provisions are long overdue. And I was pleased to support the tax extenders, disaster tax relief, and mental health parity package when it was considered by the Senate just a few days ago. But that legislation could have proceeded on its own, without being attached to the emergency bailout bill.

There is one new provision being added to the bailout proposal that is not only relevant but makes good sense, and that is the language raising the cap on the size of an account that can be insured by the FDIC. I have supported raising FDIC insurance limits for many years. It should go a long way toward helping our community banks continue to attract and retain the deposits so critical to their ability to provide credit to consumers and Main Street businesses.

That brings me to the rest of the bailout measure. Though it is lacking in several areas, I will focus my attention on three critical defects in the legislation. First, it places the financial burden squarely on the average taxpayer. In fact, because it is funded through increased debt, the burden is actually placed on future taxpayers. Regrettably, no offset was seriously considered, and as a result, our debt is at risk of rising by another $700 billion. That is $700 billion more that must be paid off by our children and grandchildren in the form of increased taxes or fewer government services.

A second defect of the bailout bill is its failure to adequately address the housing crisis which underlies much of the financial market collapse. It does not include meaningful provisions to help individual homeowners stay in their homes. As foreclosures continue to increase throughout the country, including in Wisconsin, we need to ensure that any legislation actually helps actual homeowners, not just Wall Street banks and investment firms. This is not just a matter of fairness, though it is surely that. It is also common sense. It is the housing crisis that underlies the collapse of the credit markets. Without addressing those root causes, any bailout is less likely to succeed.

This does not mean that we should reward homeowners who took out bigger mortgages than they could afford to repay or who sought to flip homes for investments. But for the homeowners who were misled or who fell prey to predatory lending, Congress should do something to ensure that those homeowners have the ability to work with their servicers to modify their home loans. Unfortunately, this bailout bill is too skimpy on protections for the individual homeowner.

I am also disappointed that this bill does not include language that would allow bankruptcy judges to alter the mortgage terms of a homeowner's primary residence when that homeowner has declared bankruptcy. These sorts of loan modifications already can take place for vacation homes and other types of personal debt. It is troubling that the Bankruptcy Code would allow these modifications to take place on different types of debt but not a family's primary residence. Congress should address this issue and pass legislation to reform the Bankruptcy Code to permit loan modifications to owner-occupied primary residences.

It is true this bailout bill contains provisions directing the Secretary of the Treasury to implement a plan to ``encourage'' servicers to take advantage of various programs to minimize foreclosures. But unfortunately, the legislation seems to lack real teeth to ensure that these servicers actually modify the terms of nonfederally owned mortgages in order to prevent foreclosures. As we have seen with the Bush Administration's Hope Now Alliance, voluntary encouragement of loan modifications is not enough. While there are a number of factors contributing to the high rates of home foreclosures around this country, I am worried that unless Congress passes stronger legislation to do more than encourage servicers to modify the terms of these mortgages, we will continue to see high foreclosure rates plague our communities.

Finally, and perhaps most importantly, this legislation fails to include steps to reform the financial markets to ensure that we will not need another bailout in the future.

If the taxpayers are being asked to bail out Wall Street, the least we can do, the very least, is to ensure it will not happen again. Nothing in this legislation does that. Indeed, the administration has pushed hard to keep the bill free of the kinds of regulatory reforms we need to prevent this kind of financial crisis from occurring again. We are told that such reforms should be the focus of future legislation.

This is an old tactic. In my days in the Wisconsin State senate, we used to call that the ``trailer bill'' promise. Of course, after promising all would be made well in some future ``trailer bill,'' that mythical legislation never materialized, or if it did, it failed to accomplish what it was promised to do.

If anyone fell for the ``trailer bill'' maneuver once, I can tell you that they didn't fall for it a second time, and no one should fall for it now.

The bottom line is this, Mr. President. Any regulatory reform legislation considered separately will almost certainly be inadequate, and it might even do further damage, because of the influence of the financial industry. The last two decades have seen a string of almost uninterrupted victories by that industry in these halls. We have seen sound laws and regulations that protected consumers and the stability of the financial system repealed or weakened. Just 9 years ago, the icing was put on that deregulatory cake with the enactment of the Gramm-Leach-Bliley Act, a law which tore down what was left of the protective firewalls in our financial system. Little surprise, then, that without those firewalls the fire has indeed spread across the financial landscape.

We are paying the price for years of regulatory neglect, and the responsibility for that neglect is truly bipartisan. Both parties rushed to enact those measures; both parties have worked to ensure that financial derivatives--what Warren Buffett has called financial weapons of mass destruction--remained largely unregulated. Both parties worked to prevent the inclusion of even the most modest reforms in this bailout package. And I am concerned that any separate reform package we might consider in the next Congress will also be bipartisan in its inadequacies.

There is a chance that Members will have learned a costly lesson, and that meaningful reform may yet be enacted. But I am skeptical. The leverage for meaningful reform was this bailout package. Once that passes, the financial interests that have had their way in this building for the last two decades will be free to lobby against anything that may inconvenience them.

Mr. President, since 2001, top officials in the Bush administration have secretly authorized the use of abusive interrogation techniques that in some cases have risen to the level of torture. In doing so, they have shown flagrant disregard for statutes, for treaties ratified by the United States, and for our own Constitution. They have misled the American people, undermined our values, and damaged our efforts to defeat al-Qaida.

There are some who downplay the abusive treatment of detainees that

has been uncovered at Abu Ghraib, Guantanamo Bay and elsewhere as isolated incidents, conducted by a handful of rogue low-level interrogators. But the facts indicate where the true responsibility lies: with an administration that gave the green light to torture and a Justice Department that said anything goes.

Make no mistake, torture is against the law. The United States is a party to the Convention Against Torture, the Geneva Conventions, and the International Covenant on Civil and Political Rights. The United States Code criminalizes any act ``specifically intended to inflict severe physical or mental pain or suffering.'' And in 2005, Congress reiterated in the Detainee Treatment Act that cruel, inhumane or degrading treatment of detainees in U.S. custody is not permitted, no matter where those detainees are held.

Notwithstanding these obligations, top administration officials have continuously sought and found ways to disregard the legal and ethical boundaries on acceptable detainee treatment. On January 25, 2002, Alberto Gonzales, in his capacity as counsel to the President, signed a memo arguing that Taliban and al-Qaida detainees were not protected by the Third Geneva Convention on the Treatment of Prisoners of War. He stated that ``[i]n my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions . . .''

On February 2, 2002, the President issued an order determining that al-Qaida and Taliban detainees were entitled to neither prisoner of war protections under the Geneva Conventions nor the protections of Common Article Three. Gonzales also solicited from the Department of Justice Office of Legal Counsel, the now infamous ``Bybee memo,'' issued in August 2002, which in the context of the criminal prohibition on torture defined torture narrowly as the infliction of ``intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant bodily function will likely result.'' The memo also contained the extreme--and dangerous--legal theory that the President, as commander in chief, could disregard any congressional enactment that interfered with his ability to interrogate enemy combatants. These positions were reiterated in March 2003, when another OLC memo was sent to William J. Haynes, general counsel of the Department of Defense.

And the OLC did not stop at general guidance. In a hearing this year before a House subcommittee, Steven Bradbury, Principal Deputy Assistant Attorney General at OLC, confirmed that his office had advised the CIA that the regulated use of waterboarding did not constitute torture for purposes of the criminal prohibition against torture.

High-level administration officials also have not hesitated to issue policies permitting abusive treatment of detainees. On November 27, 2002, Haynes sent a memo to Secretary of Defense Donald Rumsfeld that asked him to approve 15 interrogation techniques for use at Guantanamo Bay, including hooding, 20-hour interrogations, isolation, sensory deprivation, forced nudity, threatening detainees with dogs, and putting detainees in ``stress positions'' for up to four hours. Rumsfeld not only approved the techniques, he added a hand-written note: ``I stand for 8-10 hours a day. Why is standing limited to 4 hours?''

Rumsfeld later rescinded the authorization of some of these techniques for use at Guantanamo, and reauthorized the use of others. But the consequences of these high-level approvals were far-reaching. A recent report by the Department of Justice Office of the Inspector General revealed that techniques authorized by Rumsfeld were used on detainees at Guantanamo Bay, both during the period they were authorized and after they had been rescinded. And such behavior was not limited to Guantanamo Bay. According to the 2004 ``Review of Department of Defense Detention Operations and Detainee Interrogation Techniques,'' known as the Church Report, the Combined Joint Task Force in Afghanistan also developed, authorized and implemented interrogation procedures similar to those Rumsfeld had approved in 2002. The Church Report and the ``Final Report of the Independent Panel to Review DOD Detention Operations,'' known as the Schlesinger Report, also document how, in August 2003, MG Geoffrey Miller was sent from Guantanamo Bay to Iraq, and brought with him Guantanamo policies allowing the use of harsher interrogation techniques. Shortly thereafter, LTG Ricardo A. Sanchez, the top military official in Iraq, formally adopted techniques heavily influenced by those in use at Guantanamo, such as stress positions, forced sleep adjustment, and the use of dogs, although some of these were later rescinded.

While OLC was issuing memos effectively saying there were no legal restrictions on interrogations and high-level officials were authorizing abusive techniques, there is evidence to suggest that interrogators on the ground were given very little information about exactly what was and was not permitted. During a Judiciary Committee hearing on interrogation policy in June, I asked Department of Justice inspector general Glenn Fine whether he thought that military interrogators had clear guidance on what techniques were permissible, given the administration's shifting policies. He responded that changes in policy ``didn't always get down to the level of the interrogators'' and that, at times, ``they weren't sure or aware of what exactly was authorized.'' Likewise, the Schlesinger Report stated that ``[t]he existence of confusing and inconsistent interrogation technique policies contributed to the belief that additional interrogation techniques were condoned.'' In light of all this, the administration's insistence that low-level interrogators are solely to blame for incidents of detainee abuse simply is not plausible.

Many individuals who were aware of what was happening raised concerns. Secretary of State Colin Powell wrote a January 2002 memo that weighed the costs and benefits of trying to evade the Geneva Conventions, noting that to do so would ``reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the rule of law for our troops.'' Others raised concerns as well. According to the DOJ inspector general's report on the involvement of the FBI in military interrogations, several FBI agents ``became deeply concerned not only about the efficacy of these techniques but also about their legality.'' In 2002, the FBI Director decided unequivocally that FBI agents would not participate in interrogations that used abusive techniques. In a November 7, 2002, memorandum for the Office of the Army General Counsel, Army COL John Ley stated that he believed that some of the techniques that the Pentagon was considering for use at Guantanamo Bay and that were later approved by Rumsfeld--could violate both the Federal criminal prohibition on torture and the Uniform Code of Military Justice. He expressed concern not only about the legality of the interrogation techniques, but also about eroding public support and losing the moral high ground. And in a hearing before the Senate Armed Services Committee in June, RADM Jane Dalton, who served as legal adviser to the Chairman of the Joint Chiefs of Staff from June of 2000 until June of 2003, testified that all four of the Armed Services were concerned about authorizing new interrogation techniques.

Fortunately, in 2006 after the Detainee Treatment Act became law, the Department of Defense finally agreed it would no longer authorize the use of harsh interrogation techniques by military personnel, and ordered that all personnel follow the interrogation policies laid out in the Army Field Manual. I have strongly supported proposals to require all intelligence agencies--specifically the CIA--to do the same. For far too long, this administration has failed to abide by the law and to protect our values. The use of abusive interrogation techniques is unsupportable on moral, legal or national security grounds. It does not represent who we are as a nation, and it does not make America safer.

The responsibility for the use of immoral, illegal and counter- productive interrogation techniques does not stop with the interrogators who employed them. It extends to those in the highest echelons of the Bush administration that sought to encourage these

techniques, who confused interrogators with constantly shifting policies, and that ignored the many voices who told them that what they were doing was unlawful and that it was not the American way. And it extends to the President himself, who has acknowledged publicly that in 2003 he approved meetings of his most senior national security officials to consider and sign off on so-called enhanced interrogation techniques. The abuses that have occurred under this administration's watch have constituted one of the darkest episodes in this Nation's recent history. They have fed growing anger at and opposition to U.S. policies, and in the process have undermined our efforts to combat al- Qaida and associated extremist groups. The next administration will have to work long and hard to undo the damage that has been done to our country's reputation and national security and to restore the rule of law.

Mr. President, today marks the full operational launch of the U.S. Africa Command, known as AFRICOM. I have long supported the idea of a unified regional combatant command for Africa that recognizes the continent's growing strategic importance for U.S. security and that is coordinated with other U.S. agencies. As I have discussed many times on the Senate floor, we can not pretend that weak and failing states, protracted violent conflicts, maritime insecurity, narcotics and weapons trafficking, large-scale corruption, and the misappropriation and exploitation of natural resources are not relevant to our long-term interests. At the same time, there are exciting economic and social developments underway across Africa that provide openings for the United States to help save lives, strengthen governance institutions, and build long-term partnerships. It is not a question of whether the United States needs to work proactively and collaboratively with African nations in these areas but a question of how we should do so to maximize our efficacy while minimizing potential backlash.

Toward that end, the standup of AFRICOM presents both opportunities and risks. Indisputably, our Nation's military strength is one of our greatest assets and may be necessary to deal with some of the emerging national and transnational threats, such as narcotics trafficking, piracy, and terrorism. Military training, equipping, and logistical support are essential to develop strong, disciplined national militaries and also strengthen regional peacekeeping, especially with African Union missions currently operating in Somalia and Sudan. Furthermore, in many postconflict societies, such as Liberia, our military expertise can assist in demobilization, disarmament, and reintegration while also helping to rebuild that country's army.

However, while militaries make important contributions in these areas, they are insufficient to address the underlying causes of violence and instability in Africa. Lasting security requires reconciling political grievances, improving governance, strengthening the rule of law, and promoting economic development: tasks for which our military, or any military for that matter, cannot be the lead. To advance and support those tasks, the United States needs to continue to invest in our diplomatic, economic, humanitarian, and development capacities on the continent. We need a unified interagency approach to these challenges in which AFRICOM is supporting, not eclipsing, the work of our diplomats, our aid workers, and other key partners.

I am concerned that the opposite is happening. Despite initial ambitions to have 25 percent of AFRICOM's headquarters' positions filled by nonmilitary staff, that number has been severely reduced because of resource and staffing limitations in civilian agencies. Furthermore, a report by the Government Accountability Office published this July stated that concerns persist among civilian agencies and nongovernmental organizations that the military is becoming the lead for U.S. policy in Africa. Even as Pentagon officials claim this is not their intention, it is hard to argue with the numbers. While civilian agencies operating abroad continue to face resource constraints, more and more resources are being invested in military relationships and assistance in Africa.

Given this context, it is not surprising that some are casting AFRICOM's emergence as a signal of further militarization of U.S. Africa policy. Such perceptions of militarization are dangerous and risk undermining our ability to engage local populations. As I have said many times, the military has a critical role to play in helping Africans address their security challenges, but we must be careful that it does not outweigh or overshadow other forms of engagement. This is especially true in cases where local security forces are engaging in repressive tactics or committing serious human rights abuses, such as in Chad or Ethiopia. In these cases, we run a very real risk that U.S. military engagement could be seen by local populations as complicit in those abuses and become a target of resulting grievances. Before we jump at short-term opportunities to exert military influence, we need to consider seriously the long-term risks to U.S. stature and interests.

Mr. President, this is not to say that AFRICOM is not capable of such nuanced strategic planning and interagency coordination. I have met with

General Ward and know that he is aware of both the opportunities and risks as AFRICOM stands up. I still believe that a unified regional combatant command can contribute to broader U.S. Government efforts to confront the many security challenges in Africa and can provide additional tools to pursue coherent and strategic objectives across the continent. But to fulfill that potential, AFRICOM must demonstrate in its inaugural months and years that it recognizes the unique political realities throughout Africa, concentrates on its defined mandate, and takes its lead from our diplomats. Simultaneously, we in Congress must act to ensure that our diplomats have the resources they need to take that lead in formulating and implementing comprehensive U.S. strategies in Africa.

Madam President, last week I chaired a hearing on the ``resource curse'' and Africa's management of its extractive industries. In too many parts of Africa, a wealth of natural resources that should be fueling economic development are instead sources of corruption and conflict. This is especially the case with Sub-Saharan Africa's leading oil-producing nations. Just a few days ago, Transparency International released its corruption index, naming of Africa's top 3 oil producers--Chad, Equatorial Guinea, and Sudan--among the top 10 most corrupt countries. This corruption as well as the discrepancy between persisting poverty and skyrocketing revenues is a recipe for instability in these countries, breeding weak and failing states.

Nowhere are the consequences of the ``resource curse'' more acute or alarming than Nigeria's Delta region. For the last three decades, local communities there have been marginalized politically and economically as oil companies, with the government's backing, have seized some of the world's richest oil deposits. And, while the private sector is pervasive, the federal government is virtually absent--replaced by roving bands of criminals, working in many cases for local governors. The weak infrastructure, lack of opportunities for political participation by local communities, endemic poverty, influx of arms, and presence of lootable extractives have turned the delta into a powder keg over recent years.

In that swamp--and I say ``swamp'' both literally and metaphorically--have arisen several armed groups that seek to appeal to the legitimate grievances of communities for both political and criminal ends. These groups, many of which claim to be part of a loose coalition called the Movement for the Emancipation of the Niger Delta, or MEND, have targeted oil companies operating in the region, kidnapping employees for ransom and attacking pipelines and other installations. Simultaneously, they have become heavily involved in the lucrative trade in oil stolen from the delta's vast pipelines which is called ``bunkering.'' Some estimates suggest that as much as 10 percent of Nigeria's current production is siphoned off illegally, creating a shadow economy that undermines the security of the wider Gulf of Guinea region.

The Nigeria Government's response to the Delta crisis--sporadic military campaigns, empty promises of development and half-hearted attempts at political dialogue--has only made matters worse. In many cases there are definite but ambiguous links between the military and the militants--each out for personal gain as the political economy of war perpetuates the illicit nature of these activities. In addition, the military campaigns to date have only served to provoke the insurgency, leading to fighting that has left civilians killed and displaced. Furthermore, the lack of clear distinction between the security forces of the oil companies and the Nigerian military feeds communities' perception that the two are interchangeable. Meanwhile, despite promises made, there has still not been a serious initiative to address the underdevelopment of the region. The necessary revenues are clearly available with Nigeria's economic boom, but a lack of political will prevails. This is in part because there are officials at the federal, state, and local levels who continue to benefit from the instability in the delta, either by their involvement in the illegal oil trade or other corruption.

Without a commitment from the top leadership in Nigeria--as well as support from key members in the international community--a growing number of individuals at the top will continue to profit, while those at the bottom have almost no say in the development of their society. Genuine peacemaking in the delta region will require not only legitimate political negotiations but a convincing case for transforming the illicit war economy into one of peace. There will need to be viable institutions, not one hollowed out from corruption, which can address economic and political decisionmaking. And there will need to be opportunities for local communities to engage and hold their leaders accountable. Only then will we begin to see change in the delta.

Under this administration, the United States has made few efforts to address the instability in the Niger Delta, despite Nigeria being a key U.S. partner and the fifth largest source for U.S. oil imports. I recognize that the insecurity in the delta makes it very hard for our embassy officials--who are doing great work in an already tough posting--to travel there, but without consistent diplomatic outreach and presence in the region, our ability to engage is severely handicapped. How can we be sure the information we are getting is valid if we don't have our own eyes and ears to help inform our strategic thinking? The information gap in the Niger Delta is a very real deficit even though it may not seem pressing compared to some of the other national security threats we face. Getting our diplomatic corps into one of the world's most neglected regions will help us identify the full scope of the area's problems and come up with a sound plan for addressing them.

In June, I wrote to Secretary Rice, expressing my concern and inquiring about the potential for more frequent diplomatic travel to the region. I understand that along with the security concerns, financial costs also play a role here. But the costs to U.S. long-term security of not directly engaging this problem now are much greater.

The work of our diplomats on the ground though must be backed by high-level support from Washington. On the Niger Delta--or Nigerian affairs in general, for that matter--we have not seen adequate leadership from the Secretary of State or the President. Looking to the next administration, we must reengage at all levels. This must be a top priority for whoever becomes the next Assistant Secretary for African Affairs, and I will work in my capacity in Congress to ensure we give greater attention to the crisis in the delta. We must think creatively about how we can rally our international partners and muster the many resources at our disposal to push for a comprehensive solution. In the months and years ahead, I believe there are few more pressing issues in terms of U.S. security and interests in Africa.

Now is the moment to engage. Just over a week ago, insurgents in the delta declared an ``oil war,'' after accusing the Nigerian military of new and unprovoked attacks. The 6 days of conflict that ensued between the militants and Nigerian soldiers were the most intense violence the region had seen in years. Reports suggest that oil output was cut by at least 150,000 barrels, but more importantly the violence left hundreds of people killed and many more displaced. I fear that we may only see this situation get worse as all sides, regardless of their rhetoric, cling to military strategies that only further entrench this conflict.

Nevertheless, there is an opportunity here to use this escalation to refocus international attention on this crisis and jumpstart a comprehensive political process to address its underlying causes. In the last month, there have been some positive developments that can be built upon.

First, President Yar'Adua recently announced the creation of 40- person technical committee and an entire ministry for the Niger Delta. If managed well and held accountable, these entities hold the potential to finally deliver on promises for economic development in the delta, especially infrastructure construction and job creation.

Second, the Government has called for the development of a certification scheme to track the theft and lucrative sale of so-called ``blood oil.'' It is unclear how such a scheme would work or whether the will really exists in Abuja to support it, but this provides an entry point to discuss ways to improve maritime security. A 2005 report by the Center for Strategic and International Studies suggested that better surveillance of two river systems alone could make a huge dent in the illicit oil trade in the delta.

Third and finally, it should be noted that Nigeria's ranking improved in this week's Transparency International's corruption index, suggesting some progress has been made. Of course, these rankings are not precise and far more progress is needed.

Mr. President, I realize that this situation is very complex and that many talented and thoughtful people have met over the last decade in various conferences, workshops, and summits to devise plans for peace in the delta. I am not under the illusion that stabilizing this region will be easy or straightforward, but I do know that the United States does not currently have the institutional leadership, resources, or coordination that we need to effectively engage in that undertaking and wield meaningful leverage. As we look ahead to the next administration and Congress, this must change not only the sake of African communities caught in the midst of violence and poverty but also for our own security.

Mr. President, I will vote against H.R. 2638, the continuing resolution for fiscal year 2009. Congress needs to provide funding to keep the Federal Government operating, and this bill includes funding for a number of programs I support. I am particularly pleased that this resolution includes money to help Wisconsinites recover from the serious flooding the Midwest experienced earlier this year. I joined a number of my colleagues in asking appropriators to include this disaster relief, which will help Wisconsin families and communities still dealing with the aftermath.

But wrapping three separate appropriations bills into one package, with no opportunity for amendments, is irresponsible and unacceptable. Moreover, this bill provides funding to continue the war in Iraq, when we should be bringing that war to a close. And it allows Members of Congress to receive a hefty $4700 pay raise, despite the massive deficits we are running and the economic pain so many of our constituents are feeling.

Mr. President, it has been more than 7 years since al- Qaida attacked us at home. There are many lessons those attacks should have taught us, many things we should have been doing as a nation since that date which we have yet to do. These post-9/11 gaps in our efforts and strategies need as much if not more attention today as they did on September 12, 2001. The largest gap we face is a strategic gap between what we should have done and what this administration elected to do in response to the tragic events of 9/11. The administration chose to attack Iraq rather than complete the mission in Afghanistan--where the 9/11 attacks were hatched--and address al-Qaida's expanding influence in northern Africa, Southeast Asia, and beyond. Those threats are real and have the continuing potential to manifest themselves again in disastrous ways here at home and around the world.

There are other gaps--failures by this administration to address the real challenges of our post-9/11 world. We have created a gap in the readiness of our military. Our National Guard, an integral part of any large disaster response, has been severely strained. We continue to have insufficient intelligence and information resources posted abroad. We have insufficient diplomatic personnel, with insufficient language and other cultural experience, to cover the many places in the world where our national security interests require that we know more--and interact with those who know us least. And while I applaud the efforts of this administration to encourage more of our citizens to engage in international volunteer programs, there is room for much more to be done to strengthen our image and our impact abroad through citizen outreach and private diplomacy. In a post-9/11 world, these continuing gaps pose real threats to our security at home, and we cannot ignore them at the expense of a strategically misguided and perilously expensive ongoing military presence in Iraq.

Closer to home, we are now beginning to suffer serious challenges to our economic stability and longer term economic outlook. We are squandering our wealth and failing to invest in our economic future and our domestic security. Osama bin Laden's stated goal was to bankrupt America. Well, the cost of our presence in Iraq may ultimately exceed the massive cost proposed to bail out our failed financial systems. And what do we have to show for the hundreds of billions spent in Iraq? What do Americans have as a return on their investment? A more perilous world in which al-Qaida has a safe haven in Pakistan, our power and influence are diminished and our military might is badly overextended.

So where do we go from here? We go where Americans have always gone in times of challenge. We will take up the challenge we face head-on and work to close the gaps we face in the fabric of our domestic security.

Here at home, we continue to have critical gaps in our domestic security, in our infrastructure, in our first responder systems. We still have not deployed an effective system to prevent the smuggling of radiological materials through our ports. We have not done everything we can to secure chemical facilities that could be the source of materials for domestic car bombs like the ones we have seen cause so much damage in Baghdad. We have not fully implemented the command system needed to ensure that first responders know how to work together across federal, state and local government.

We have also failed to establish the military forces needed to conduct medical triage, search and rescue, and decontamination in the wake of a WMD incident at home. I tried to offer an amendment to the 2009 Defense authorization bill that would have mandated that these forces be established by the end of 2009 and that they be maintained at the highest levels of readiness. This

amendment would have addressed what the Commission on the National Guard and Reserves characterized as an ``appalling gap'' in our domestic defenses. I was unsuccessful, but I will continue to press for enactment of this legislation. It is time that we get our priorities straight and put the defense of the American people first.

State and local authorities will always be the first to defend the American people in any disaster, whether manmade or natural. We need to ensure that we give them the resources they need to fulfill their responsibilities. That is why I have long supported adequate funding for homeland security and emergency management grants. I opposed the administration's proposal to reduce funding for these grants this year and am pleased that 2009 Homeland Security appropriations bill, which we should vote on shortly, includes increased funding for these and other important State and local grant programs.

The security of our borders is another critical priority. While I had serious concerns about some provisions of the Comprehensive Immigration Reform Act of 2007, the bill took some steps toward tightening border security that I strongly supported, such as requiring the Department of Homeland Security, DHS, to develop a national border security strategy and border surveillance plan. The bill also required DHS to develop a schedule for implementing the US-VISIT exit-entry program, created new criminal penalties for constructing border tunnels, provided grants to law enforcement agencies to address criminal activity along the border, and required the Government to work with countries south of the border to combat human smuggling and drug trafficking.

While that bill ultimately failed, I have supported other measures to enhance border security which have been signed into law, including funding to hire 23,000 new Border Patrol agents, put in place vehicle barriers along the border, install 105 radar and camera towers, remove and detain undocumented aliens, construct barriers, and purchase ground and aerial surveillance devices. Congress must take a practical approach to securing the borders and provide the resources necessary for our Government to carry out that important responsibility.

From our borders to the first responders in our communities, we face tremendous challenges. As we work to close those security gaps, we must also draw on America's boundless capacity for innovation and creativity. We need those talents more than ever as we face unprecedented challenges in our energy sector and elsewhere. We remain hostage to foreign oil sources, yet we have not invested adequately in the necessary alternatives. We face huge challenges in our transportation systems, which consume the largest proportion of our petroleum resources. We are beginning to understand that fresh water may be the next oil and that we have to use, conserve, and manage it as the scarce resource that it is. And where do these alternatives necessary to rebuild and sustain the economy of our future come from? Our history tells us they come from what President Eisenhower, in his farewell address to the Nation, called the ``solitary inventor, tinkering in his shop''--the entrepreneurial small businessperson.

So we must invest in our skilled workers and our infrastructure. We must find ways to invigorate our creative and entrepreneurial small businesses so that we can not only drive innovation and employment but strengthen our own security in the process.

Two programs--the Small Business Innovation Research and Small Business Technology Transfer Programs--are prime examples of how we can encourage innovation to improve our security. These highly successful programs not only need to be reauthorized, they need to be substantially increased and targeted at the key challenges of our time. Our domestic security, our innovative and entrepreneurial opportunities, our country's longer term employment prospects, and our economic future are all directly benefited by these programs, which provide Federal money for small business innovation. And the National Research Council, after an exhaustive study of the SBIR Program, tells us that Congress could effectively increase funding of this effort. This is the kind of investment we need to be making in our national security and in our economic future.

As we make that investment, we should make security-related innovation a stated priority of SBIR, not simply a byproduct of some SBIR-supported research. There are few, if any, Government programs better positioned to develop technologies to protect the American people than SBIR. I have introduced legislation to make domestic security, water security and quality, transportation, and energy top SBIR priorities. By focusing SBIR innovation and research in all of these areas, but especially domestic security and water security and quality, we can do a great deal to address the security challenges we face.

Today there are many technologies addressing areas such as first responder emergency responses, detection of radioactive materials, cargo scanning and cybersecurity, that demand more research and innovation to meet our security needs in a post-9/11 world. Recent reports from the Government Accountability Office and the National Academy of Sciences, for instance, identify troubling gaps in first responders' ability to deal with hazardous releases in urban areas or our ability to better track and detect radioactive materials. SBIR can fund the research that can close these security gaps, and that program--and most importantly the small business innovators themselves--deserve our full support in Congress.

Mr. President, as this administration comes to a close, we have an opportunity to revisit how best to address the gaps that have arisen in our national security both before and since 9/11. Our need to act is no less urgent now than it was 7 years ago, except that we have squandered time and great resources in the intervening period. I urge those of us who will return in the next Congress to work with the next administration to address these gaps with a renewed perspective on the sense of urgency they deserve.

Today, I am joined by the junior Senator from Washington, Senator Cantwell, in introducing the Travelers' Privacy Protection Act of 2008. This bill restores privacy for law-abiding Americans who, under current administration policy, may be required to give customs agents unfettered access to the contents of their laptop computers and other electronic devices when they return from overseas travel.

There is a compelling and immediate need for this legislation. Over the last two years, reports have surfaced that customs agents have been requiring American citizens and others lawfully residing in the U.S. to turn over their cell phones or give them the passwords to their laptops. The travelers have been forced to wait for hours while customs agents reviewed and sometimes copied the contents of the electronic devices. In some cases, the laptops or cell phones were confiscated, and returned weeks or even months later, with no explanation.

When the practice was challenged in court, the administration argued that it can search the contents of American travelers' laptops without any suspicion of wrongdoing whatsoever, because a laptop is no different than any other ``closed container.'' In other words, according to this administration, there is no difference between rifling through the contents of your suitcase, and logging on to your laptop, opening your files, and reviewing your photographs, medical records, financial records, e-mails, letters, journals, work product, or an electronic record of all the Web sites you have visited.

I am willing to bet that most Americans would disagree. Americans understand the importance of security at the borders, and the vast majority of them accept that the government is entitled to look through their suitcases when they are returning from an overseas trip. But I say to my colleagues: try asking your constituents whether the government has a right to open their laptops, read their documents and e-mails, look at their photographs, and examine the Web sites they have visited--all without any suspicion of wrongdoing--and see what they say. I think you'll hear the same thing that I have heard: ``Not in the United States of America.''

In June of this year, I held a hearing of the Constitution Subcommittee of the Judiciary Committee to examine this issue. At this hearing, we learned about the effect of suspicionless electronic border searches on American businesses. The Executive Director for the Association of Corporate Travel Executives testified that, in a survey of ACTE members, 7 out of 100 respondents had experienced seizures of their laptops or other electronic equipment. Many companies are now taking expensive and burdensome measures to protect their electronic information from forced disclosure at the border. The administration's intrusive border practices thus come with a hefty price tag for the American business sector, at a time when the economy can ill afford it.

We also heard disturbing evidence suggesting that Muslim Americans and Americans of Arab or South Asian descent are being targeted for these invasive searches. Many travelers from these backgrounds who have been subject to electronic searches have also been asked about their religious and political views, including why they chose to convert to Islam, what they think about Jews, and their views of the candidates in the upcoming election. This questioning is deeply disturbing in its own right. It also strongly suggests that some border searches are being based, at least in part, on impermissible factors.

At the same time it was claiming the right to look at all of the information Americans carry with them across the border, the administration was refusing to provide Americans or Congress with information about its policies for border searches. Requests by the public and members of Congress were steadfastly ignored. DHS declined my invitation to send a witness to the hearing, claiming that its preferred witness was unavailable on that day. But after the hearing sparked a flurry of press coverage and major newspapers criticized DHS for its secrecy, the agency made public a written policy for border searches dated July 16, 2008.

The DHS policy is truly alarming in the sweeping authority it claims. According to the policy, customs agents may ``analyze and review'' the information in Americans' laptops and other electronic devices ``absent individualized suspicion.'' As part of this search authority, customs agents may ``detain'' the electronic device for an unspecified period of time, take it off-site, make copies of its contents, and send the equipment or the copies to other agencies or even private individuals in some cases. Although the policy purports to require probable cause to ``seize'' a laptop, as opposed to merely searching it, this safeguard is almost meaningless given that DHS's definition of ``search'' includes the right to ``detain'' the laptop indefinitely. Moreover the policy exempts officers' written notes from any constraints, allowing customs agents to transcribe an electronic document verbatim and keep it forever without any level of suspicion.

Defenders of this policy outside the administration are hard to find. Major newspapers across the country, including the New York Times, the Washington Post, and a host of other national and local outlets, have published editorials condemning the policy and urging Congress to act. As USA Today put it: ``[T]he notion that the government can arbitrarily have a free crack at your e-mail, Web searches and other personal electronic data is chilling. Given the government's abysmal record of safeguarding private data, it's no wonder that business and civil liberties groups are protesting.'' In my home state of Wisconsin, the Green Bay Press-Gazette put it this way: ``[T]he fact that this policy exists . . . is an affront to the core values of the United States of America.''

In the fact of this public outcry, DHS has reacted like a traffic officer standing by a 20-car pile-up and telling onlookers ``Nothing to see here--move along.'' The agency claims that its July 16 policy spells out the practice followed by customs agents for years and across administration. But that just isn't true. The Customs Directive that governed border searches of documents through the end of the Clinton Administration stated that Customs agents could glance at documents-- but not read them--``to see if they appear to be merchandise.'' At that point, ``reasonable suspicion [was] required for read and continued detention'' of the documents. The reading of personal correspondence other than merchandise was expressly prohibited. This administration's policy authorizing ``review and analysis'' of any and all electronic documents without a shred of suspicion thus represents a 180 degree turnaround from previous policy.

DHS alternatively defends its policy by arguing that the authority to conduct suspicionless searches of Americans' laptops is necessary to capture terrorists and criminals. Yet the few specific examples DHS has seen fit to give have all been cases in which the search was anything but suspicionless. For example, in one instance DHS has cited, the laptop search took place after customs agents received a tip that the traveler was a smuggler and discovered $79,000 in unlawful U.S. currency in his belongings. Despite many opportunities to do so, DHS has yet to identify a single example in which a search that was conducted ``absent individualized suspicion'' resulted in the apprehension of a dangerous criminal or terrorist.

This brings me to my next point. Both Secretary Chertoff and the Deputy Commissioner for Customs and Border Protection have tried to downplay the extent of privacy violations by pointing out that DHS has limited resources for conducting electronic searches at the border. That may be true, but it hardly justifies suspicionless searches. To the contrary, the limited nature of these resources makes it all the more important to direct them toward people who actually do present some objective basis for suspicion. As the DHS examples confirm, these are the cases in which electronic searches are most likely to yield results. Using our limited resources to search the laptops of law- abiding Americans who present no basis for suspicion is frankly irresponsible.

This is not simply a matter of what the Constitution protects or allows. In fact, a few lower courts have agreed with the administration that the Fourth Amendment does not protect Americans against suspicionless searches of their laptops at the border. I happen to believe that these decisions incorrectly applied Supreme Court precedent, but ultimately, that is beside the point. Not everything that comports with the Constitution is sound policy. A government practice can satisfy minimum constitutional requirements and still violate Americans' expectations for what they want and deserve from their government. In those cases, it is up to Congress to act.

The bill I am introducing today would require DHS agents to have reasonable suspicion before searching the contents of laptops or other electronic equipment carried by U.S. citizens or other lawful residents of the U.S. ``Reasonable suspicion'' is a lower standard than ``probable cause''; it simply requires DHS to have an objective basis for suspecting that a particular person is engaged in illegal behavior. No less should be required when the government seeks to encroach on such a significant privacy interest.

Like the current DHS policy, the bill I am introducing requires probable cause in order for DHS agents to seize electronic equipment lent. Unlike the current policy, however, the bill defines ``seize'' in a manner than is consistent with both legal precedent and common sense. If DHS keeps your laptop or any of its contents for longer than 24 hours, there has clearly been a seizure, and the bill recognizes this. The bill also reinforces the probable cause requirement by requiring DHS to obtain a warrant, while allowing DHS to hold on to the equipment pending a ruling on the warrant application.

Most of the information DHS will review, even under a reasonable suspicion standard, will prove innocuous. Recognizing this, the bill contains provisions to protect law-abiding Americans' privacy by strictly limiting disclosure of information that DHS acquires through electronic border searches. The only disclosures that are permitted in the absence of warrant or court order are limited disclosures to other federal, state, or local government agencies. Those agencies in turn may apply for a warrant--or, if the laptop appears to contain foreign intelligence information, a Foreign Intelligence Surveillance Court Order--to seize the equipment.

If DHS damages the electronic equipment in the course of a search, the

agency must compensate the owner for any resulting economic loss. The bill requires DHS to establish an administrative claims process to that end. Awards will be paid from agency funds, ensuring that the bill is deficit-neutral.

The bill prohibits profiling based on race, ethnic, religion, or national origin. Profiling based on these characteristics has no place in our society. It is repugnant to our values as a pluralistic nation, and it is counterproductive as a matter of law enforcement. At the hearing I held on this issue, all of the witnesses, those invited by myself and those invited by Senator Brownback, agreed at that point.

Finally, the bill contains provisions to ensure that DHS provides the information about its policies and practices that Congress needs and that the public is entitled to have. The agency must provide Congress and the public with any past, existing, or future policies relating to electronic border searches, as well as information about the implementation of those policies. Our ability to know what DHS claims the right to do at the border should never depend on whether DHS chooses to send a witness to a congressional hearing.

Taken together, these provisions reverse this administration's departure from previous policy and, more importantly, bring the government's practices at the border back in line with the reasonable expectations of law-abiding Americans. Furthermore, they enhance the security of our borders by focusing the government's resources where they can do the most good. And they will enable all of us in this body to look our constituents in the eyes and say, ``You're right--that doesn't happen in the United States of America.''

Mr. President, I hope that my colleagues give this bill the enthusiastic support it deserves. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, in a democracy, no right is more important than the right to vote; in our democracy, no right has been so dearly won. This country was founded on the idea that a just government derives its power from the consent of the governed, a principle codified in the very first words of our Constitution: ``We the People of the United States.'' From the Civil War through the women's suffrage movement through the Voting Rights Act of 1965 through the 26th Amendment, the continuing expansion of the franchise, a broadening of who ``we the people'' are, is one of our great American stories.

So today I will introduce the Democracy Restoration Act of 2008. This bill will guarantee that citizens who are not incarcerated have the right to vote in Federal elections. I am pleased that the Senator from Rhode Island, Sen. Whitehouse, and the Senator from Maryland, Sen. Cardin, have agreed to be a cosponsor.

Once, only wealthy White men could vote in this country. Once, African Americans, ethnic minorities, women, young people, the poor, and the uneducated were all excluded. Today, we look back at those times and wonder how our country could have denied its citizens such a fundamental right for so long. And yet today, we continue to disenfranchise an estimated 4 million of our fellow citizens who were convicted of felonies but are no longer in prison. Two million of these people have fully served their sentences, and the other two million are on probation, parole, or supervised release. These people are living and working in the community, paying taxes, and contributing to society. But they cannot vote.

At this time, 10 states still strip people who have completed their sentence--who have paid their debt to society--of their right to vote. Some 35 States deny the vote to people on parole, and 30 of those States also deny the vote to people on probation. I believe that the practice of stripping our fellow citizens of their voting rights is un- American. It weakens our democracy. It is an anachronism, one of the last vestiges of a medieval jurisprudence that declared convicted criminals to be outlaws, irrevocably expelled from society.

This principle was called ``civil death'' and in medieval Europe, it was reserved for the worst crimes. Yet today, here, in the greatest democracy in the world, we continue to sentence 4 million people-- people who have served their time, people who are contributing members of society--to civil death.

One might ask how something as undemocratic as civil death could have survived to the present day. Unfortunately, Mr. President, the practice of disenfranchising people with felony convictions has an explicitly racist history. Like the grandfather clause, the literacy test, and the poll tax, civil death became a tool of Jim Crow.

Across the country, 13 percent of African-American men are disenfranchised because of a felony conviction. As of 2004, in 14 states, felony disenfranchisement provisions had stripped more than 10 percent of the entire African-American voting-age population of the right to vote. In 4 states, they had disenfranchise more than 20 percent of eligible African-American voters.

The architects of Jim Crow would be proud of their handiwork, and how it has lasted long after the rest of their evil system was dismantled. The rest of us should be ashamed, and yes, outraged. If we believe in redemption, we should be outraged. Because civil death has denied 4 million Americans a chance at redemption. If we believe in progress, we should be outraged. Because civil death keeps this country chained to the worst moments of our past. If we believe in democracy, we should be outraged. Because civil death strikes at the heart of our democracy.

There is a growing movement across the country to expand the franchise and restore voting rights to people coming out of prison and reentering the community. In the last decade, 16 States have reformed their laws to expand the franchise or ease voting rights restoration procedures. This bill continues that movement. It provides that the right to vote for candidates for Federal office shall not be denied or abridged because a person has been convicted of a crime unless that person is actually in prison serving a felony sentence. It gives the Attorney General of the United States the power to obtain declaratory or injunctive relief to enforce that right. And it gives a person whose rights are being violated a right to go to court to get relief.

The bill also requires Federal and State officials to notify individuals of their right to vote once their sentences have been served. This is an important part of the bill, given the long history of these civil death provisions. Even after this bill passes, many ex- offenders may not know their rights, and we should take affirmative steps to make sure that they do. No one should be disenfranchised because of lack of information.

Upon signing the Voting Rights Act of 1965, President Johnson said:

The vote is the powerful instrument ever devised by man for

breaking down injustice and destroying the terrible walls

which imprison men because they are different from other men.

When prisoners return to their communities after serving their sentences, we expect and hope that they will reintegrate themselves into society as productive citizens. Yet, without the right to vote, rehabilitated felons are already a step behind in regaining a sense of civic responsibility and commitment to their communities. If our country wants ex-offenders to succeed at becoming better citizens, who both abide by the law and act as responsible individuals, then we need to restore this most fundamental right. I urge my colleagues to support this important legislation.

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

Today, I am joined by the junior Senator from Washington, Senator Cantwell, in introducing the Travelers' Privacy Protection Act of 2008. This bill restores privacy for law-abiding Americans who, under current administration policy, may be required to give customs agents unfettered access to the contents of their laptop computers and other electronic devices when they return from overseas travel.

There is a compelling and immediate need for this legislation. Over the last two years, reports have surfaced that customs agents have been requiring American citizens and others lawfully residing in the U.S. to turn over their cell phones or give them the passwords to their laptops. The travelers have been forced to wait for hours while customs agents reviewed and sometimes copied the contents of the electronic devices. In some cases, the laptops or cell phones were confiscated, and returned weeks or even months later, with no explanation.

When the practice was challenged in court, the administration argued that it can search the contents of American travelers' laptops without any suspicion of wrongdoing whatsoever, because a laptop is no different than any other ``closed container.'' In other words, according to this administration, there is no difference between rifling through the contents of your suitcase, and logging on to your laptop, opening your files, and reviewing your photographs, medical records, financial records, e-mails, letters, journals, work product, or an electronic record of all the Web sites you have visited.

I am willing to bet that most Americans would disagree. Americans understand the importance of security at the borders, and the vast majority of them accept that the government is entitled to look through their suitcases when they are returning from an overseas trip. But I say to my colleagues: try asking your constituents whether the government has a right to open their laptops, read their documents and e-mails, look at their photographs, and examine the Web sites they have visited--all without any suspicion of wrongdoing--and see what they say. I think you'll hear the same thing that I have heard: ``Not in the United States of America.''

In June of this year, I held a hearing of the Constitution Subcommittee of the Judiciary Committee to examine this issue. At this hearing, we learned about the effect of suspicionless electronic border searches on American businesses. The Executive Director for the Association of Corporate Travel Executives testified that, in a survey of ACTE members, 7 out of 100 respondents had experienced seizures of their laptops or other electronic equipment. Many companies are now taking expensive and burdensome measures to protect their electronic information from forced disclosure at the border. The administration's intrusive border practices thus come with a hefty price tag for the American business sector, at a time when the economy can ill afford it.

We also heard disturbing evidence suggesting that Muslim Americans and Americans of Arab or South Asian descent are being targeted for these invasive searches. Many travelers from these backgrounds who have been subject to electronic searches have also been asked about their religious and political views, including why they chose to convert to Islam, what they think about Jews, and their views of the candidates in the upcoming election. This questioning is deeply disturbing in its own right. It also strongly suggests that some border searches are being based, at least in part, on impermissible factors.

At the same time it was claiming the right to look at all of the information Americans carry with them across the border, the administration was refusing to provide Americans or Congress with information about its policies for border searches. Requests by the public and members of Congress were steadfastly ignored. DHS declined my invitation to send a witness to the hearing, claiming that its preferred witness was unavailable on that day. But after the hearing sparked a flurry of press coverage and major newspapers criticized DHS for its secrecy, the agency made public a written policy for border searches dated July 16, 2008.

The DHS policy is truly alarming in the sweeping authority it claims. According to the policy, customs agents may ``analyze and review'' the information in Americans' laptops and other electronic devices ``absent individualized suspicion.'' As part of this search authority, customs agents may ``detain'' the electronic device for an unspecified period of time, take it off-site, make copies of its contents, and send the equipment or the copies to other agencies or even private individuals in some cases. Although the policy purports to require probable cause to ``seize'' a laptop, as opposed to merely searching it, this safeguard is almost meaningless given that DHS's definition of ``search'' includes the right to ``detain'' the laptop indefinitely. Moreover the policy exempts officers' written notes from any constraints, allowing customs agents to transcribe an electronic document verbatim and keep it forever without any level of suspicion.

Defenders of this policy outside the administration are hard to find. Major newspapers across the country, including the New York Times, the Washington Post, and a host of other national and local outlets, have published editorials condemning the policy and urging Congress to act. As USA Today put it: ``[T]he notion that the government can arbitrarily have a free crack at your e-mail, Web searches and other personal electronic data is chilling. Given the government's abysmal record of safeguarding private data, it's no wonder that business and civil liberties groups are protesting.'' In my home state of Wisconsin, the Green Bay Press-Gazette put it this way: ``[T]he fact that this policy exists . . . is an affront to the core values of the United States of America.''

In the fact of this public outcry, DHS has reacted like a traffic officer standing by a 20-car pile-up and telling onlookers ``Nothing to see here--move along.'' The agency claims that its July 16 policy spells out the practice followed by customs agents for years and across administration. But that just isn't true. The Customs Directive that governed border searches of documents through the end of the Clinton Administration stated that Customs agents could glance at documents-- but not read them--``to see if they appear to be merchandise.'' At that point, ``reasonable suspicion [was] required for read and continued detention'' of the documents. The reading of personal correspondence other than merchandise was expressly prohibited. This administration's policy authorizing ``review and analysis'' of any and all electronic documents without a shred of suspicion thus represents a 180 degree turnaround from previous policy.

DHS alternatively defends its policy by arguing that the authority to conduct suspicionless searches of Americans' laptops is necessary to capture terrorists and criminals. Yet the few specific examples DHS has seen fit to give have all been cases in which the search was anything but suspicionless. For example, in one instance DHS has cited, the laptop search took place after customs agents received a tip that the traveler was a smuggler and discovered $79,000 in unlawful U.S. currency in his belongings. Despite many opportunities to do so, DHS has yet to identify a single example in which a search that was conducted ``absent individualized suspicion'' resulted in the apprehension of a dangerous criminal or terrorist.

This brings me to my next point. Both Secretary Chertoff and the Deputy Commissioner for Customs and Border Protection have tried to downplay the extent of privacy violations by pointing out that DHS has limited resources for conducting electronic searches at the border. That may be true, but it hardly justifies suspicionless searches. To the contrary, the limited nature of these resources makes it all the more important to direct them toward people who actually do present some objective basis for suspicion. As the DHS examples confirm, these are the cases in which electronic searches are most likely to yield results. Using our limited resources to search the laptops of law- abiding Americans who present no basis for suspicion is frankly irresponsible.

This is not simply a matter of what the Constitution protects or allows. In fact, a few lower courts have agreed with the administration that the Fourth Amendment does not protect Americans against suspicionless searches of their laptops at the border. I happen to believe that these decisions incorrectly applied Supreme Court precedent, but ultimately, that is beside the point. Not everything that comports with the Constitution is sound policy. A government practice can satisfy minimum constitutional requirements and still violate Americans' expectations for what they want and deserve from their government. In those cases, it is up to Congress to act.

The bill I am introducing today would require DHS agents to have reasonable suspicion before searching the contents of laptops or other electronic equipment carried by U.S. citizens or other lawful residents of the U.S. ``Reasonable suspicion'' is a lower standard than ``probable cause''; it simply requires DHS to have an objective basis for suspecting that a particular person is engaged in illegal behavior. No less should be required when the government seeks to encroach on such a significant privacy interest.

Like the current DHS policy, the bill I am introducing requires probable cause in order for DHS agents to seize electronic equipment lent. Unlike the current policy, however, the bill defines ``seize'' in a manner than is consistent with both legal precedent and common sense. If DHS keeps your laptop or any of its contents for longer than 24 hours, there has clearly been a seizure, and the bill recognizes this. The bill also reinforces the probable cause requirement by requiring DHS to obtain a warrant, while allowing DHS to hold on to the equipment pending a ruling on the warrant application.

Most of the information DHS will review, even under a reasonable suspicion standard, will prove innocuous. Recognizing this, the bill contains provisions to protect law-abiding Americans' privacy by strictly limiting disclosure of information that DHS acquires through electronic border searches. The only disclosures that are permitted in the absence of warrant or court order are limited disclosures to other federal, state, or local government agencies. Those agencies in turn may apply for a warrant--or, if the laptop appears to contain foreign intelligence information, a Foreign Intelligence Surveillance Court Order--to seize the equipment.

If DHS damages the electronic equipment in the course of a search, the

agency must compensate the owner for any resulting economic loss. The bill requires DHS to establish an administrative claims process to that end. Awards will be paid from agency funds, ensuring that the bill is deficit-neutral.

The bill prohibits profiling based on race, ethnic, religion, or national origin. Profiling based on these characteristics has no place in our society. It is repugnant to our values as a pluralistic nation, and it is counterproductive as a matter of law enforcement. At the hearing I held on this issue, all of the witnesses, those invited by myself and those invited by Senator Brownback, agreed at that point.

Finally, the bill contains provisions to ensure that DHS provides the information about its policies and practices that Congress needs and that the public is entitled to have. The agency must provide Congress and the public with any past, existing, or future policies relating to electronic border searches, as well as information about the implementation of those policies. Our ability to know what DHS claims the right to do at the border should never depend on whether DHS chooses to send a witness to a congressional hearing.

Taken together, these provisions reverse this administration's departure from previous policy and, more importantly, bring the government's practices at the border back in line with the reasonable expectations of law-abiding Americans. Furthermore, they enhance the security of our borders by focusing the government's resources where they can do the most good. And they will enable all of us in this body to look our constituents in the eyes and say, ``You're right--that doesn't happen in the United States of America.''

Mr. President, I hope that my colleagues give this bill the enthusiastic support it deserves. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, in a democracy, no right is more important than the right to vote; in our democracy, no right has been so dearly won. This country was founded on the idea that a just government derives its power from the consent of the governed, a principle codified in the very first words of our Constitution: ``We the People of the United States.'' From the Civil War through the women's suffrage movement through the Voting Rights Act of 1965 through the 26th Amendment, the continuing expansion of the franchise, a broadening of who ``we the people'' are, is one of our great American stories.

So today I will introduce the Democracy Restoration Act of 2008. This bill will guarantee that citizens who are not incarcerated have the right to vote in Federal elections. I am pleased that the Senator from Rhode Island, Sen. Whitehouse, and the Senator from Maryland, Sen. Cardin, have agreed to be a cosponsor.

Once, only wealthy White men could vote in this country. Once, African Americans, ethnic minorities, women, young people, the poor, and the uneducated were all excluded. Today, we look back at those times and wonder how our country could have denied its citizens such a fundamental right for so long. And yet today, we continue to disenfranchise an estimated 4 million of our fellow citizens who were convicted of felonies but are no longer in prison. Two million of these people have fully served their sentences, and the other two million are on probation, parole, or supervised release. These people are living and working in the community, paying taxes, and contributing to society. But they cannot vote.

At this time, 10 states still strip people who have completed their sentence--who have paid their debt to society--of their right to vote. Some 35 States deny the vote to people on parole, and 30 of those States also deny the vote to people on probation. I believe that the practice of stripping our fellow citizens of their voting rights is un- American. It weakens our democracy. It is an anachronism, one of the last vestiges of a medieval jurisprudence that declared convicted criminals to be outlaws, irrevocably expelled from society.

This principle was called ``civil death'' and in medieval Europe, it was reserved for the worst crimes. Yet today, here, in the greatest democracy in the world, we continue to sentence 4 million people-- people who have served their time, people who are contributing members of society--to civil death.

One might ask how something as undemocratic as civil death could have survived to the present day. Unfortunately, Mr. President, the practice of disenfranchising people with felony convictions has an explicitly racist history. Like the grandfather clause, the literacy test, and the poll tax, civil death became a tool of Jim Crow.

Across the country, 13 percent of African-American men are disenfranchised because of a felony conviction. As of 2004, in 14 states, felony disenfranchisement provisions had stripped more than 10 percent of the entire African-American voting-age population of the right to vote. In 4 states, they had disenfranchise more than 20 percent of eligible African-American voters.

The architects of Jim Crow would be proud of their handiwork, and how it has lasted long after the rest of their evil system was dismantled. The rest of us should be ashamed, and yes, outraged. If we believe in redemption, we should be outraged. Because civil death has denied 4 million Americans a chance at redemption. If we believe in progress, we should be outraged. Because civil death keeps this country chained to the worst moments of our past. If we believe in democracy, we should be outraged. Because civil death strikes at the heart of our democracy.

There is a growing movement across the country to expand the franchise and restore voting rights to people coming out of prison and reentering the community. In the last decade, 16 States have reformed their laws to expand the franchise or ease voting rights restoration procedures. This bill continues that movement. It provides that the right to vote for candidates for Federal office shall not be denied or abridged because a person has been convicted of a crime unless that person is actually in prison serving a felony sentence. It gives the Attorney General of the United States the power to obtain declaratory or injunctive relief to enforce that right. And it gives a person whose rights are being violated a right to go to court to get relief.

The bill also requires Federal and State officials to notify individuals of their right to vote once their sentences have been served. This is an important part of the bill, given the long history of these civil death provisions. Even after this bill passes, many ex- offenders may not know their rights, and we should take affirmative steps to make sure that they do. No one should be disenfranchised because of lack of information.

Upon signing the Voting Rights Act of 1965, President Johnson said:

The vote is the powerful instrument ever devised by man for

breaking down injustice and destroying the terrible walls

which imprison men because they are different from other men.

When prisoners return to their communities after serving their sentences, we expect and hope that they will reintegrate themselves into society as productive citizens. Yet, without the right to vote, rehabilitated felons are already a step behind in regaining a sense of civic responsibility and commitment to their communities. If our country wants ex-offenders to succeed at becoming better citizens, who both abide by the law and act as responsible individuals, then we need to restore this most fundamental right. I urge my colleagues to support this important legislation.

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

I ask unanimous consent that after the remarks of Senator Allard and Senator Bond, I be recognized for 30 minutes.

I said after Senator Allard and Senator Bond.

Mr. President, I thank the Senator from Missouri.

Mr. President, last week we celebrated the 221st anniversary of the day in 1787 when 39 members of the Constitutional Convention signed the Constitution in Philadelphia. It is a sad fact, as we consider that anniversary, that for the past 7\1/2\ years, and especially since 9/11, the Bush administration has treated the Constitution and the rule of law with a disrespect never before seen in the history of this country.

By now, the public can be excused for being almost numb to new revelations of Government wrongdoing and overreaching. The catalog is really breathtaking, even when immensely complicated and far-reaching programs and events are reduced to simple catch phrases: torture, Guantanamo, ignoring the Geneva Conventions, warrantless wiretapping, data mining, destruction of e-mails, U.S. attorney firings, stonewalling of congressional oversight, abuse of the state secrets doctrine and executive privilege, secret abrogation of Executive orders, signing statements.

This is a shameful legacy that will haunt our country for years to come. That is why I believe so strongly that the next President of the United States--whoever that may be--must pledge his commitment to restoring the rule of law in this country and then take the necessary steps to demonstrate that commitment. That is why, also, I held a hearing last week in the Constitution Subcommittee of the Senate Judiciary Committee asking a range of legal and historical experts exactly what the new President and the new Congress must do to repair the damage done by the current administration to the rule of law.

There can be no dispute that the rule of law is central to our democracy and our system of government. But what does ``the rule of law'' really mean? Well, as Thomas Paine said, in 1776:

In America, the law is king.

That, of course, was a truly revolutionary concept at a time when, in many places, the kings were the law. But more then 200 years later, we still must struggle to fulfill Paine's simply stated vision. It is not always easy, nor is it something that, once done, need not be carefully maintained.

Justice Frankfurter wrote that law:

. . . .is an enveloping and permeating habituation of

behavior, reflecting the counsels of reason on the part of

those entrusted with power in reconciling the pressures of

conflicting interests. Once we conceive ``the rule of law''

as embracing the whole range of presuppositions on which

government is conducted . . . , the relevant question is not,

has it been achieved, but, is it conscientiously and

systematically pursued.

The post-September 11 period is not, of course, the first time that the checks and balances of our system of government have been placed under great strain. As Berkeley law professors Daniel Farber and Anne Joseph O'Connell wrote in testimony submitted for the hearing on this topic:

The greatest constitutional crisis in our history came with

the Civil War, which tested the nature of the Union, the

scope of presidential power, and the extent of liberty that

can survive in war time.

But as legal scholar Louis Fisher of the Library of Congress described in his testimony, President Lincoln pursued a much different approach than our current President when he believed he needed to act in an extra-constitutional manner to save the Union. He acted openly, and sought Congress's participation and ultimately approval of his actions.

According to Dr. Fisher, Lincoln took actions we are all familiar with, including withdrawing funds from the Treasury without an appropriation, calling up the troops, placing a blockade on the South, and suspending the writ of habeas corpus. In ordering those actions, Lincoln never claimed to be acting legally or constitutionally and never argued that Article II somehow allowed him to do what he did. Instead, Lincoln admitted to exceeding the constitutional boundaries of his office and therefore needed the sanction of Congress. . . . He recognized that the superior lawmaking body was Congress, not the President.

Now, of course, each era brings its own challenges to the conscientious and systematic pursuit of the rule of law. How the leaders of our government respond to those challenges at the time they occur is, of course, critical. But recognizing that leaders do not always perform perfectly, that not every President is an Abraham Lincoln, the years that follow a crisis are perhaps even more important. As Yale Law School Dean Harold Koh testified at the hearing:

As difficult as the last 7 years have been, they loom far

less important in the grand scheme of things than the next 8,

which will determine whether the pendulum of U.S. policy

swings back from the extreme place to which it has been

pushed, or stays stuck in a `new normal' position under which

our policies toward national security, law, and human rights

remain wholly subsumed by the `War on Terror.'

I could not agree more.

So the obvious question is: Where do we go from here? One of the most important things that the next President must do, whoever he may be, is take concrete steps to restore the rule of

law in this country. He must make sure that the excesses of this administration don't become so ingrained in our system that they change the very notion of what the law is. And he must recognize that we can protect our national security--in fact, we can do it more effectively-- without trampling on the rights of the American people or the rule of law.

That, of course, is much easier said than done. But there is one immediate step that, while it may be viewed as symbolic, is critically important for the next President to take: stating clearly and unequivocally in the inaugural address that he renounces the current administration's abuses of executive power and that his administration will uphold the rule of law. To be sure, this isn't the only subject the new president should address, but it is among the most urgent. Where he stands on executive power goes beyond policy and politics and speaks to his respect for the Constitution itself. And a willingness to raise this issue in the inaugural address will send a message, loud and clear, to the American public, to Congress and to every level of government that the days of lawlessness and excess are over.

Thomas Jefferson said this in his first inaugural address:

The essential principles of our Government form the bright

constellation which has gone before us and guided our steps

through an age of revolution and reformation . . . [S]hould

we wander from them in moments of error or of alarm, let us

hasten to retrace our steps and to regain the road which

alone leads to peace, liberty and safety.

I hope our next President will echo that sentiment in his inaugural address. Indeed, demonstrating that commitment on day one will go a long way toward reinstating what Ohio State University Law Professor Peter Shane called a ``rule of law culture'' in government. As he explained in his hearing testimony:

The written documents of law have to be buttressed by a set

of norms, conventional expectations, and routine behaviors

that lead officials to behave as if they are accountable to

the public interest and to legitimate sources of legal and

political authority at all times, even when the written rules

are ambiguous and even when they could probably get away with

merely self-serving behavior.

This cuts to the core of the problem that the next President will face: After 8 years of disregard for the rule of law at the highest level of government, how can we instill new norms and expectations throughout the Federal Government? Stating that commitment in the inaugural address will go a long way in that direction.

But it is not only a matter of a new President saying: Ok, I won't do that anymore. This President's transgressions are so deep and the damage to our system of government so extensive that a concerted effort from the executive and legislative branches will be needed. And that means the new President will, in some respects, have to go against his institutional interests--a challenge that we cannot underestimate.

That is why I called the hearing last week on this topic--to hear from legal and historical experts on how the next President should go about tackling the wreckage that this President will leave behind. I asked witnesses to be forward-looking--not to simply review what has gone wrong in the past 7 or 8 years, but to address very specifically what needs to be set right starting next year and how to go about doing it. In addition to the testimony of the witnesses at the hearing, I solicited written testimony from advocates, law professors, historians and other experts. I was pleased that we received nearly 30 written submissions from a host of national groups and distinguished individuals.

At the hearing, we heard testimony from one of the foremost legal scholars in the country about just how far outside mainstream legal thought the current administration went. We heard comparisons to the events leading up to the Church Committee's investigation in the 1970s, from the man who served as chief counsel to that committee. We heard from a former Republican Member of Congress about Congress's failure to assert itself as a coequal branch of government. We heard from the former head of the Justice Department's office of legal counsel about the perversion of the law that was allowed to occur in that important office. We heard from a former White House chief of staff about the dangers of the excessive executive secrecy that permeated the government under this administration. We heard from a leading national security lawyer about the harm that post-9/11 domestic surveillance policies have done to our national security. And we heard from the head of one of the leading human rights organizations about the damage our interrogation and detention policies have done to our reputation abroad.

But most importantly, we heard from every one of these individuals their specific prescriptions for moving beyond these mistakes--for taking the steps that are necessary to restore our core American principles.

Indeed, between the hearing witnesses and the written testimony that was submitted, the subcommittee received an enormous number of recommendations, including many provocative and important ideas. They range from the general to the very specific, and they cover a variety of subject matters, from government secrecy to detention and interrogation policy to surveillance to separation of powers. I am very pleased that so many experts took the time to offer these proposals.

Let me take a few minutes today to share some examples of the kinds of recommendations that the witnesses provided, both those who testified at the hearing and those who submitted written testimony. Several suggestions reinforce my belief that the new administration must set a clear tone of adherence to the rule of law from the start. Mark Agrast of the Center for American Progress Action Fund suggests that the President should convene a White House conference on the rule of law, and pledge to work with Congress to give priority to measures to restore public confidence in the rule of law. Former Solicitor General Walter Dellinger argues that:

[T]he next President should . . . affirmatively adopt a

view of presidential power that recognizes the roles and

authorities of all three co-equal branches and that takes

account of settled judicial precedent.

Many of our witnesses are concerned about the impact of the last 8 years on the separation of powers, and specifically about Congress's failure to stand up to the president as he asserted more and more unconstrained power. Several strongly suggest oversight and investigative hearings to determine what exactly happened. Frederick Schwarz of the Brennan Center suggests an independent, bipartisan, investigatory commission to assess what has gone wrong and what has gone right with the Nation's policies concerning terrorism. Such a commission would allow the public to get the full story of the abuses of the Bush administration, providing accountability and a mechanism for developing protections against future abuse that can be implemented by the executive and legislative branches. The ACLU suggests more narrowly focused oversight hearings in Congress to reveal illegal or improper executive branch activity, and argues that Congress must deny funding for programs it believes are abusive or illegal.

Former Congressman Mickey Edwards, a Republican from Oklahoma, also argues that Congress must use the power of the purse to assert its will in interbranch disagreements. He believes that Congress should aggressively utilize its subpoena power to get the information it needs. Being able to enforce congressional subpoenas, of course, is an important component of oversight, and several witnesses had suggestions on that topic. Common Cause believes that the next president should issue an Executive order mandating Federal agencies' complete cooperation with congressional investigations. University of Pennsylvania Law Professor Seth Kreimer argues that officials who ignored legitimate congressional subpoenas should be prosecuted. The Center for Responsibility and Ethics in Washington suggests that Congress enact legislation granting jurisdiction to the Federal courts over cases seeking enforcement of congressional subpoenas. And Bruce Fein, a former Reagan administration official, believes a special three-judge court should be created that could appoint an independent counsel to enforce contempt findings against the executive branch since the Department of Justice refused to enforce congressional subpoenas during this administration.

Many of the suggestions from our witnesses focus on the decisionmaking of our national security agencies. Stephen Aftergood of the Federation of American Scientists suggests enhancing oversight of intelligence agencies by using cleared auditors from the GAO. And Mark Agrast advocates establishing a national security law committee within the National Security Council to make decisions on legal issues related to national security.

A crucial part of restoring the rule of law in the next administration will be rebuilding the reputation of the office of legal counsel. Walter Dellinger, joined by a prestigious group of former OLC attorneys, provided detailed testimony on how that can be done. The incoming attorney general should pay very close heed to this advice.

Another issue that almost every person or group mentioned in their submissions is the problem of excessive government secrecy. This problem permeates all of the other rule of law issues discussed at the hearing. When the executive branch invokes the state secrets privilege to shut down lawsuits, hides its programs behind secret OLC opinions, overclassifies information to avoid public disclosure, and interprets the Freedom of Information Act as an information withholding statute, it shuts down all of the means to detect and respond to its abuses of the rule of law--whether those abuses involve torture, domestic spying, or the firing of U.S. attorneys for partisan gain.

With regard to this administration's overuse of the state secrets privilege, University of Chicago law professor Geoffrey Stone and many others recommend that Congress pass S. 2533, the State Secrets Protection Act, which was reported out of the Judiciary Committee in April. The bill takes the simple and obvious step of requiring courts to review allegedly privileged documents to determine whether they really are privileged.

To address the rampant problem of overclassification, several submissions, including that of John Podesta from the Center for American Progress Action Fund, urge the next President to rewrite the executive order on classification to reverse some of the changes made by President Bush to that order. In particular, President Bush eliminated provisions that established a presumption against classification in cases of significant doubt, that permitted senior agency officials to declassify information in exceptional cases where the public interest in disclosure outweighs the need to protect the information, and that prohibited reclassification of materials that have been released to the public. Contributors argue that these provisions be restored.

On the issue of secret OLC opinions and other manifestations of secret law, there is general agreement that legislation is needed to require greater disclosure of the law under which the executive branch operates. A number of submissions recommend the passage of 2 bills I introduced this year: the Executive Order Integrity Act, which requires the president to publish notice in the Federal Register when revoking or modifying a published Executive order, and the OLC Reporting Act, which requires the Attorney General to report to Congress when the Department of Justice concludes that the executive branch is not bound by a statute.

Finally, the National Security Archive and others address the proper standard for disclosure of information under the Freedom of Information Act. Attorney General Reno issued a memorandum in 1993 that contained a ``presumption of disclosure'': even if a document was technically exempt from disclosure under FOIA, the Department of Justice would defend the withholding only if disclosure would actually harm an interest protected by the exemption. Attorney General Ashcroft reversed that presumption in 2001. Contributors uniformly recommend that the new administration immediately restore the presumption of disclosure.

The subcommittee also received numerous recommendations for reforming our detention and interrogation policy. Detailed plans for accomplishing the difficult task of closing the detention facility at Guantanamo Bay were presented by Elisa Massimino of Human Rights First, by the Center for Strategic and International Studies, by Harold Koh, and by a group of 20 leading scholars. There is near- universal agreement that Guantanamo should be closed. These thoughtful proposals deserve careful consideration. A number of groups also recommend dismantling the current system of military commissions, and instead trying terrorist suspects in U.S. courts or military courts-martial.

With respect to interrogation practices, Princeton's Deborah Pearlstein and others argue that the U.S. Government should have a single, government-wide standard of humane detainee treatment. Massimino suggests that the President and the Congress should invest in efforts to pursue the most effective and humane means of intelligence gathering. And Harold Koh emphasizes the importance of fully complying with obligations under the Geneva Conventions and the Convention Against Torture.

And finally, a number of recommendations were made on government surveillance and privacy issues. National security lawyer Suzanne Spaulding argues that the next administration should undertake a comprehensive review of domestic intelligence activities and authorities, to assess their effectiveness and to ensure that they support, rather than undermine, the rule of law. She points to a number of key issues for review, many of which were also mentioned in other submissions as issues where changes need to be made.

These include the Foreign Intelligence Surveillance Act and the related amendments made this summer; national security letters and other Patriot Act authorities; the first amendment implications of domestic spying activities; data mining and other data collection and analysis activities; profiling in the name of counterterrorism; the appropriate role of the many Federal, State and local entities that are now involved in domestic intelligence gathering; and the need to enhance transparency and oversight in all of these areas. This is a long list, but Spaulding argues that too many of these powers were created piecemeal, without consideration of how they fit together and without adequate consideration for the need to respect civil liberties.

This is just a sampling of the careful and interesting proposals that the subcommittee received. Taken together, these recommendations should serve as an excellent source for both branches of government. While I am not at this ge time going to propose a specific plan of action to the next President or the next Congress, I am reviewing the legislative proposals that have been submitted, and I hope my colleagues will take advantage of them as well. I thank each and every person who made the effort to submit these recommendations. They have done this country a real service.

In January, I intend to present the full hearing record to the new President, and urge him to take specific actions to restore the rule of law. These recommendations should serve as a blueprint for the new President so that he can get started right away on this immense and extremely important job of restoring the rule of law.

It will not be easy. Even those steps that are almost universally agreed upon, such as the necessity of closing the facility at Guantanamo Bay, pose tricky legal and practical questions. And, of course, there may be institutional resistance within the executive branch to actions that are viewed as ceding power to the other branches of government, no matter how unprecedented the executive power theories that need to be undone. But as Suzanne Spaulding explained at the hearing:

We have to demonstrate that we still believe what our

founders understood; that this system of checks and balances

and respect for civil liberties is not a luxury of peace and

tranquility but was created in a time of great peril as the

best hope for keeping this nation strong and resilient.

This is an important point, because the polices pursued by this administration have not kept this Nation ``strong and resilient.'' They have undermined national unity, diminished our international standing and alliances, and hurt our efforts to counter the serious threat we face from al-Qaida and its affiliates. By putting policies in place that accord with basic American principles, we can strengthen our national security as well.

As I said at the outset, it is the years that follow a crisis that may matter

most, that are the true test of the strength of our democracy. So I hope that the next President will carefully review the many recommendations that have been presented, because the future of our democracy depends on it.

Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. President, today I wish Senator Allard well as he leaves the Senate, after 12 years here and 6 years in the other body. That is a long record of honorable service to the wonderful State of Colorado. During our time together in the Senate, I was very pleased to work with Senator Allard on a critical issue facing both our States: chronic wasting disease. I appreciated his commitment to fighting the spread of CWD, which was characteristic of his commitment to the people of Colorado throughout his time here. I wish him all the best as he leaves the Senate, and I thank him for his years of dedicated service to our country.

Larry Craig

Mr. President, as Senator Craig retires from the Senate, I want to take a few moments to recognize him and thank him for his work on behalf of the people of Idaho. He devoted 18 years to serving the people of Idaho in the Senate, following 10 years of service in the House of Representatives. Senator Craig and I worked together in two very different, very important areas: protecting civil liberties and supporting America's dairy farmers. In both cases, he was dedicated to the best interests of the people of Idaho, and I am grateful for his efforts.

Senator Craig was a key member of the group of six Senators--three Republicans and three Democrats, including myself--who worked together to try to strengthen the protections for Americans' privacy rights in the Patriot Act reauthorization that we considered in the Senate during the 109th Congress. His willingness to work across party lines on that issue was commendable, and it was a critical boost to our efforts. Senator Craig understands the importance of protecting Americans' freedoms, and I applaud his commitment to these issues.

I also thank him for his consistent support of dairy farmers, another area where we frequently worked together. Senator Craig and I shared concerns about the impact of the Australia free trade agreement on dairy farmers, on the threat of unsafe importation of milk protein concentrates, and on nonfat milk price reporting errors.

Once again on these issues, Senator Craig put the needs of the people of Idaho first, and reached across the aisle to protect hardworking dairy farmers. After 28 years of service in Congress, Senator Craig is retiring from the Senate, and I wish him all the best. His hard work and dedication have made a valuable contribution to the Senate and to the American people.

Pete Domenici

Mr. President, today I thank Senator Domenici for his 36 years of service here in the Senate, longer than any New Mexican in the State's history. I have had the pleasure of serving with Senator Domenici on the Budget Committee, where his leadership has been a cornerstone of the committee's work for decades. I have always appreciated his willingness to listen to and accommodate different points of view through the years. I also thank him for his work on biennial budgeting, something I also strongly support and was proud to work on with him.

Senator Domenici's commitment to mental health parity is well known and deserves special recognition. It is fitting that, on the eve of Senator Domenici's retirement, the Mental Health Parity Act of 2008, which he worked on with Senators Dodd, Kennedy and Enzi, should pass the Senate. I was pleased to cosponsor this bill and look forward to it being enacted.

Finally, I thank Senator Domenici for his vote in support of the McCain-Feingold legislation when it passed the Senate in 2002. It was his support, along with 59 other Senators, that gave us that victory after a long fight to ban soft money. I will always remember and appreciate his support, and I wish him all the best as he retires from the Senate.

Chuck Hagel

Mr. President, today I recognize the work of an outstanding colleague, Senator Chuck Hagel. As he leaves the Senate, there are many things he will be remembered for, and I will add a few to that long list. I have had the pleasure of serving with Senator Hagel on both the Foreign Relations and Intelligence committees, where I have seen what a thoughtful and dedicated public servant he truly is. He has been an outspoken and independent voice on foreign policy, and against the current Administration's reckless foreign policies, including the disastrous war in Iraq.

In our time serving together in the Senate, we have worked on a number of bills relevant to our work on the Foreign Relations and Intelligence committees. Senator Hagel and I authored a bill to address the serious threat posed to our national security by gaps in our intelligence gathering. Building

on the work of the 9/11 Commission, our legislation would establish an independent commission to improve how the U.S. Government collects and analyzes information, so that we can head off emerging threats. Senator Hagel has brought critical attention to this issue, and I have no doubt he will continue to do so in the years ahead. I also appreciate Senator Hagel's commitment to strengthening our citizen diplomacy, which is so important to improving the image of the U.S. abroad. His support for my Global Services Fellowship Program Act, and past efforts on this issue, has been just one more example of Senator Hagel's willingness to reach across the aisle to work on issues important to our country.

As chairman of the Senate Foreign Relations Subcommittee on African Affairs, I particularly appreciate Senator Hagel's support for a more peaceful, secure, and prosperous Africa. He has supported efforts to help protect civilians and provide them with access to basic services. His voice has been one for political solutions to conflict, and for initiatives that would bring long-term stability to the continent.

Senator Hagel has served the people of Nebraska, and America, with great dedication and skill. I will miss having him as a colleague, but I value his service and his friendship, and I wish him all the best as he leaves the Senate.

John Warner

Mr. President, today I thank Senator John Warner for his service to our country. Through his five terms in the Senate, and before that as Secretary of the Navy, Senator Warner has been an outstanding public servant. In the Senate he has worked hard for our country, and for the people of Virginia. As chairman and now ranking member of the Senate Armed Services Committee, Senator Warner has been a leader on a wide range of issues affecting our national security, and he has always approached those issues with the utmost determination to do what is best for the Nation and the American people.

Finally, I thank Senator Warner for his vote in support of the McCain-Feingold legislation when it passed the Senate in 2002. It was his support, along with 59 other Senators, that gave us that victory after a long fight to ban soft money. I appreciate his effort on this and so many issues, and I thank him for his dedicated public service over so many years.

Mr. President, I ask unanimous consent that two legal interns in my office, Corinne Beth and Arezo Yazd, be granted floor privileges for the remainder of this session.