Floor Statements

Mr. President, I wish to speak about S. 852, the so- called Fairness in Asbestos Injury Resolution Act of 2005. Because this legislation does not provide fairness for asbestos victims or small businesses, I oppose it. We need to take more time to address the problems with this bill and work to produce a result that is fair to all parties involved.

At the outset, I commend my colleagues on both sides of the aisle who have been working for years to develop a bill that addresses this issue appropriately. There is no doubt that this is one of the most difficult and complicated issues that the Judiciary Committee and the Senate have dealt with in recent years. Both last year, and in 2003, the Judiciary Committee spent weeks and weeks marking up legislation. In both cases, the end result was not satisfactory. But this was not because of lack of effort on the part of the Senators who want to find a solution.

Unfortunately, the solution this bill provides is badly flawed. This bill simply is not ready for floor consideration. That, if nothing else, is evident from the managers' package or substitute that will include over 40 significant changes to the bill. When the managers of a bill are still working on a managers' package with that many changes, before many amendments have even been offered, the only conclusion to be drawn is that the bill is not ready for the floor.

Asbestos victims around the nation deserve just and fair compensation for the exposure and resulting injuries they have suffered. My own State of Wisconsin ranks 16th in the Nation in asbestos-related deaths, and I know many Wisconsinites are following this debate closely because the outcome could have a substantial effect on their pending legal claims and their right to fair and just compensation.

Many Wisconsinites who were employed at mills and factories around my state were exposed to asbestos. Some of these workers even unknowingly brought asbestos material home on their clothes. A number of these asbestos victims, or their survivors, have pending claims in court. Under this legislation, their claims would be extinguished and they would have to start over to seek compensation from the trust fund. These are real people who have endured horrible disease and loss. Some had a loved one cut down in the prime of life, just months after getting a diagnosis. We need to find a solution that compensates these victims in both a fair and timely way and ensures they are protected after we force them to give up their rights to pursue their claims in court.

I support the concept of a national trust fund to compensate victims of asbestos-related diseases and address the strain that these asbestos cases have placed on our legal system and our economy. But I will only support a bill that in my judgment is fair to all parties involved, including, most especially, the victims of asbestos disease. That means, not only do the medical criteria and claims values have to be fair, but the design and funding of the system has to be adequate to pay the victims properly and completely.

There are, in my mind, enough conflicting reports regarding the adequacy of the fund that this bill creates to warrant opposition to the legislation. During this debate, many of my colleagues have referenced the CBO study that was completed last fall. Supporters of this bill cite the CBO report and its estimate that valid claims submitted to the asbestos fund over the next 50 years could be between $120 billion and $150 billion as justification for the $140 billion asbestos fund pricetag.

But as CBO itself points out, the pricetag could run higher than $150 billion for a variety of reasons. As the Senate Budget Committee minority staff pointed out in its analysis, CBO said the legislation is designed to produce incoming revenue of $140 billion. It did not conclude that the fund will in fact be able to collect $140 billion. According to CBO, it is possible that defendant companies could go bankrupt and therefore would not be able to pay into the asbestos fund, thereby raising the possibility that the fund could not raise $140 billion.

In addition, the pricetag could run significantly higher than $140 billion because according to CBO, it is very likely the administrator is going to have to borrow money from the Treasury Department at the outset of this process. Numerous studies and experts have predicted that there will be more claims filed than revenue collected in the initial years of the fund. That borrowed money will have to be repaid with interest, adding considerably to the cost of the fund. More important, having a large portion of the trust fund dedicated to interest payments means less money for asbestos victims. There is more than a little doubt that $140 billion is an adequate amount to keep the fund solvent and functioning. Until Congress can be virtually certain that the amounts to be raised by the fund will cover all victims' claims, I do not believe we can fairly ask asbestos victims in Wisconsin and around the nation to give up their legal rights and take a gamble with this fund.

And so a budget point of order was raised against this measure. Supporters of the bill have asserted that the point of order and other budget points of order that also potentially lie against the legislation are purely technical in nature. Their arguments suggest that it is only through some unintended fluke of the Budget Act that supporters must find 60 votes to waive the budget points of order so they can proceed with the proposal.

In fact, while some may view the points of order as technical in nature, the budget issues raised by this bill are significant. Indeed, the risk to taxpayers created by this bill would be

considerable even were the nation not already in the most dire of fiscal straits. The budget policies of the White House and Congress for the past 5 years have been nothing short of reckless, and the last thing we should be doing is to add to our budget problems by roping taxpayers with a massive new underfunded commitment.

The analysis presented by the Senator from North Dakota, Mr. Conrad, the ranking member of the Budget Committee, a few days ago is telling. Based on conservative estimates, a review by professional staff of the Senate Budget Committee projects that over time the trust fund established by this legislation to compensate people made sick by asbestos will fall $150 billion short of the funds it needs. Moreover, the analysis shows that the shortfall may amount to $300 billion under even reasonable assumptions.

Lest some argue that these figures aren't meaningful, $300 billion is more than we spent last year on the Departments of Agriculture, Commerce, Education, Energy, Housing and Urban Development, Interior, Justice, Labor, State, Transportation, Treasury, and Veterans Affairs, and the Environmental Protection Agency, combined.

This bill presents a potentially massive new burden for taxpayers on top of the record government debt with which they have been saddled. And because they face that burden, taxpayers are entitled to the full protection of the Budget Act, no matter how technical such protection may be in the eyes of the bill's supporters. Taxpayers deserve the safeguard of a 60-vote budget point of order. I will not vote to waive the Budget Act.

There is no doubt that this bill will require a significant number of asbestos victims to give up their legal rights and, in many cases, pending claims in court. Under the language of this bill, unless a claimant is already presenting evidence before a judge or jury or the final verdict has been issued, the claimant's case is stayed and the claimant is redirected to the asbestos trust fund. We are all aware that there will be victims who have invested a significant amount of their time and resources into pursuing legal claims, but for whatever reason, their cases have not yet reached the evidentiary stage. As any legal observer knows, cases can take years to reach the evidentiary stage. Is it fair to ask asbestos victims who have invested years of their lives and extensive resources to give up their legal rights and instead file claims with a fund that may not have enough money to pay out all the claims? I do not think it is fair or reasonable and I had hoped we would take more time to ensure the fund will remain solvent before moving forward with this legislation.

I am also concerned about the ability of victims to reenter the legal system in the event the asbestos fund is declared insolvent. This issue involves fundamental questions of fairness for victims, but also for the businesses and insurers that are paying into this fund. Again, I want to reiterate that I support the concept of a trust fund to compensate victims of asbestos disease and I understand that if correctly created and administered, the fund could guarantee certainty to both victims and defendant companies. This legislation, however, does not give that certainty to either party. If the fund's ability to pay claims declines, asbestos victims could find themselves at the mercy of Congress. Last week, Senator Specter voiced a willingness to make modifications to medical standards or criteria if it looks like the fund might exceed $140 billion. This is anything but fair to asbestos victims. To change the medical standards or criteria midstream introduces great uncertainty for these victims, which I find unacceptable. If we are going to ask victims to forgo their legal rights and enter this system, the least we can do is assure them that they will receive just compensation.

There are two things we absolutely have to do in any asbestos legislation. First, we have to be sure that there is adequate money right away to pay the large number of claims that we know will be filed almost immediately. I think this debate has shown that there is not enough money to pay out the initial claims and substantial disagreement as to whether there is even enough total money in the fund to pay out claims over the life of the fund.

The other thing we must do is make sure there is a strong sunset provision that will allow victims to file suit in the future if this trust fund isn't able to pay their claims. Under this bill's language, asbestos victims have to wait until the administrator has declared that the fund can no longer pay claims and has followed procedures before they can file their cases in court again. Moreover, the bill states that the termination of the fund takes effect 180 days after the date that the administrator determines that the fund will not have sufficient resources to pay all of its obligations. So, even though the administrator has declared that the fund does not have enough revenue to meets its obligations, asbestos victims would have to wait until the fund formally terminates 180 days later to file their claims in court. For some victims, 180 days of waiting seems a lot to ask, after they were forced to give up their legal rights to enter this fund in the first place. I would hope that we can legislate a more prompt and certain sunset provision before asking asbestos victims to give up their legal rights.

I have also heard concerns from small business owners that this bill will unfairly impact their businesses, in some cases even driving them out of business. There are a number of small and medium-sized businesses around the nation that have purchased insurance in the past to cover their asbestos liability. Under this legislation, that coverage would not be taken into account. Small businesses will have to pay into the trust fund at levels comparable to their past asbestos liability, even if that liability had been covered by insurance. In effect, small businesses will be punished for responsibly ensuring their liability. A number of these smaller businesses have said these mandatory payments would drive them into bankruptcy. Meanwhile, larger businesses that also have asbestos liability would benefit from paying into this trust fund because of the way the mandatory payments are structured. Under the bill, many of these larger businesses would pay far less than they currently pay to resolve these claims. I cannot support legislation that unnecessarily hurts smaller businesses while allowing more culpable and larger businesses the chance to evade their full responsibility to asbestos victims.

In addition, like many of my colleagues, I have concerns about the impact that this legislation will have on the Federal budget. Supporters of the bill assert that no taxpayer money will ever be used to keep this trust fund solvent. But what happens if the fund does become insolvent? I agree with my colleagues who say that if we pass this bill, Congress will find it very difficult to let the trust fund expire. Senator Specter is on record as saying medical standards and criteria could be altered, which I already noted is incredibly unfair to victims. Others in this chamber have voiced concerns that the obligation for the fund could be shifted to taxpayers and I share those concerns also. I know Senator Specter and Senator Leahy, two colleagues whom I deeply respect and who have worked tirelessly on this issue, say that taxpayer money will not be used for this fund. But there is no way to say that with absolute certainty. If the fund runs out, one possibility is that taxpayer money will have to be used to continue to pay claims. This option is no more desirable than changing the medical standards under the bill or forcing claimants and companies back into the legal system. The potential budgetary impact is one more reason that this legislation should be studied further so that we can ensure the trust fund will provide fair compensation to asbestos victims.

We can do better by both the victims and business interests looking to us for a solution to this problem. I believe that if we take more time to ensure the solvency of the fund, to ensure that victims' legal rights are adequately protected, and to ensure that taxpayer money will not have to finance the fund, we can reach a solution that truly can be called fair.

I suggest the absence of a quorum.

Mr. President, this year, as we celebrate Black History Month, we also mourn the loss of two great civil rights leaders: Rosa Parks and Coretta Scott King.

These women were both pivotal figures in the civil rights movement, leaders who inspired all of us with their commitment, their dignity, and their incredible courage.

Both dedicated their lives to the cause of freedom--to ridding the South of the cruelty of segregation and ridding our society of the scourge of racism.

Both lived to see tremendous progress in America and both lived to see how much is still left undone.

As we mourn the passing of these heroic figures of the civil rights movement, we must ensure that the cause of justice for which they worked so hard, and sacrificed so much--marches on.

As we mourn these great leaders, and celebrate their lives, we must also ask ourselves what we can do to honor the contributions they made, and the way they worked to transform our Nation. I am reminded of something Rosa Parks once said about Dr. King. She was concerned that, while the birthday of Dr. King had become a national holiday, he was being depicted as merely, ``a dreamer.'' As I remember him,'' she said, ``he was more than a dreamer. He was an activist who believed in acting as well as speaking out against oppression.''

Once again, Rosa Parks was right: It is not only Dr. King's dream that endures, although it does endure, and has given strength to so many. It is the actions of Dr. King, and Coretta Scott King, and Rosa Parks, and the actions of so many millions of others, that have brought us forward in an inexorable march to freedom.

Dr. King said it himself, in a different way, when he spoke about the Montgomery Bus Boycott: ``We came to see that, in the long run, it is more honorable to walk in dignity than ride in humiliation. So, in a quite dignified manner, we decided to substitute tired feet for tired souls, and walk the streets of Montgomery.''

They met injustice with action. They walked in dignity, for 381 days, until they met with victory. And today we, too, must move forward on the civil rights issues that press us to action--on racial profiling, on voting rights, on the death penalty; and also on access to good education and good health care, on addressing the HIV/AIDS crisis, and all the issues where inequality still plagues our Nation.

Dr. King, Coretta Scott King, Rosa Parks--they, and so many others, would rather have tired feet than tired souls, and so must we.

During Black History Month, as we pay tribute to their accomplishments, and as we rededicate ourselves to the goals we have yet to achieve, we know that those great Americans would never be complacent, would never tire, would never be satisfied with anything less than justice. And neither must anyone in this body, or in this country.

We must commit to walk on together in that march for equality in this country, and justice in this world, resolving that we, too, may have tired feet but never a tired soul.

Mr. President, I understand that some of my friends and colleagues in this body have come to an agreement with the White House on reauthorizing the PATRIOT Act.

While I respect these Senators greatly, I am gravely disappointed in this so-called deal. The White House agreed to only a few minor changes to the PATRIOT Act conference report that could not get through the Senate back in December. These changes do not address the major problems with the PATRIOT Act that a bipartisan coalition has been trying to fix for the past several years. We have come too far and fought too hard to agree to reauthorize the PATRIOT Act without fixing those problems. A few insignificant changes just doesn't cut it. I cannot support this deal, and I will do everything I can to stop it.

I understand the pressure that my colleagues have been under on this issue, and I appreciate all the hard work that they have done on the PATRIOT Act. It has been very gratifying to work on a bipartisan basis on this issue. It is unfortunate that the White House is so obviously trying to make this into a partisan issue, because it sees some political advantage to doing so. Whether the White House likes it or not, this will continue to be an issue where both Democrats and Republicans have concerns, and we will continue to work together for changes to the law. I am sure of that.

But I will also continue to strongly oppose any reauthorization of the PATRIOT Act that does not protect the rights and freedoms of law- abiding Americans with no connection to terrorism. This deal does not meet that standard; it doesn't even come close.

The PATRIOT Act conference report, combined with the few changes announced today, does not address the core issues that our bipartisan group of Senators have been concerned about for the last several years. The modest but critical changes we have been pushing are not included. I am not talking about new issues. We are talking about the same issues that concerned us when we first introduced the SAFE Act more than 2 years ago to fix the PATRIOT Act. And we have laid them out in detail in several different letters over the past few months.

First, and most importantly, the deal does not ensure that the government can only obtain the library, medical and other sensitive business records of people who have some link to suspected terrorists. This is the section 215 issue, which has been at the center of this debate over the PATRIOT Act. Section 215 of the PATRIOT Act allows the government to obtain secret court orders in domestic intelligence investigations to get all kinds of business records about people, including not just library records but also medical records and various other types of business records. The Senate bill that this body passed by unanimous consent back in July would have ensured that the government cannot use this power to go after someone who has no connection whatsoever to a terrorist or spy or their activities. The conference report replaces the Senate test with a simple relevance standard, which is not adequate protection against a fishing expedition. And the deal struck today leaves that provision of the conference report unchanged.

Second, the deal does not provide meaningful judicial review of the gag orders placed on recipients of section 215 business records orders and National Security Letters. Under the deal, such review can only take place after a year has passed and can only be successful if the recipient proves that that government has acted in bad faith. The deal ignores the serious first amendment problem with the gag rule under current law. In fact, it arguably makes the law worse in this area.

And third, the deal does not ensure that when government agents secretly break into the homes of Americans to do a so-called sneak and peek search, they tell the owners of those homes in most circumstances within 7 days, as courts have said they should, and as the Senate bill did.

As I understand it, this deal only makes a few small changes. It would permit judicial review of a section 215 gag order, but under conditions that would make it very difficult for anyone to obtain meaningful judicial review. It would state specifically that the government can serve National Security Letters on libraries if the library comes within the current requirements of the NSL statute, a provision that as I read it, just restates current law. And it would clarify that people who receive a National Security Letter would not have to tell the FBI if they consult with an attorney. This last change is a positive step, but it is only one relatively minor change.

So this deal comes nowhere near the significant, but very reasonable, changes in the law that I believe are a necessary part of any reauthorization package. We weren't asking for much. We weren't even asking for changes that would get us close to the bill that this body passed without objection last July. But the White House would not be reasonable and has forced a deal that is not satisfactory in an effort to serve their partisan purposes. I will oppose it, and I will fight it.

Mr. President, I associate myself with the eloquent remarks of the Senator from Alabama with respect to Coretta Scott King. I appreciate the opportunity to listen.

Warrantless Wiretaps

Last week the President of the United States gave his State of the Union Address, where he spoke of America's leadership in the world and called on all of us to ``lead this world toward freedom.'' Again and again, he invoked the principle of freedom and how it can transform nations and empower people around the world.

Almost in the same breath, the President openly acknowledged that he has ordered the Government to spy on Americans on American soil without the warrants required by law. The President issued a call to spread freedom throughout the world, and then he admitted he has deprived Americans of one of their most basic freedoms under the fourth amendment--to be free from unjustified Government intrusion.

The President was blunt. He said he had authorized the NSA's domestic spying program, and he made a number of misleading arguments to defend himself. His words got rousing applause from Republicans and I think even from some Democrats.

The President was blunt so I will be blunt. This program is breaking the law, and this President is breaking the law. Not only that, he is misleading the American people in his efforts to justify this program.

How is that worthy of applause? Since when do we celebrate our Commander in Chief violating our most basic freedoms and misleading the American people in the process? When did we start to stand up and cheer for breaking the law? In that moment at the State of the Union, I felt ashamed.

Congress has lost its way if we don't hold this President accountable for his actions. The President, of course, suggested that anyone who criticizes his illegal wiretapping program doesn't understand the threat we face. But we do. Every single one of us is committed to stopping the terrorists who threaten us and threaten our families. Defeating the terrorists is our top national priority. And we all agree that we need to wiretap them to do it. We all agree on that. In fact, it would be irresponsible not to wiretap terrorists. But we have yet to see any reason at all why we have to trample the laws of the United States to do it.

The President's decision that he can break the law says far more about his attitude toward the rule of law than it does about the laws themselves. This goes way beyond party and way beyond politics. What the President has done is to break faith with the American people.

In the State of the Union, he also said that we must always be clear in our principles ``to get support from our friends and allies that we need to fight terrorism.''

So let's be clear about a basic American principle: When someone breaks the law, when someone misleads the public in an attempt to justify their actions, they need to be held accountable. The President of the United States has broken the law. The President of the United States is trying to mislead the American people, and he needs to be held accountable.

Unfortunately, the President refuses to provide any real details about this domestic spying program. Not even the full Intelligence Committees know the details, and they were specifically set up to review classified information and oversee the intelligence activities of our Government. Instead, the President says, basically: Trust me.

Unfortunately, this is not the first time we have heard this. In the lead up to the Iraq war, the administration went on the offensive to get the American public, the Congress, and the international community to believe its theory that Saddam Hussein was developing weapons of mass destruction and even that he had close ties to al-Qaida and was somehow involved in 9/11. The President painted a dire and inaccurate picture of Saddam Hussein's capability and intent, and we invaded Iraq on that basis. To make matters worse, the administration misled the country about what it would take to stabilize and reconstruct Iraq after the conflict. We were led to believe that this was going to be a short endeavor and that our troops would be home soon.

We all recall the President's ``mission accomplished'' banner on the aircraft carrier on May 1, 2003. In fact, the mission was not even close to being complete. More than 2,100 total deaths have occurred after the President declared an end to major combat operations in May of 2003, and over 16,600 American troops have been wounded in Iraq. The President misled the American people and grossly miscalculated the true challenge of stabilizing and rebuilding Iraq.

In December, we found out that the President has authorized wiretaps of Americans without court orders required by law. He says he is only wiretapping people with links to terrorists. But how do we know? How do we know? We don't. The President is unwilling to let a neutral judge make sure that that is the case. He will not submit this program to an independent branch of Government to make sure he is not violating the rights of law-abiding Americans.

I don't want to hear again that this administration has somehow shown that it can be trusted. It hasn't. That is exactly why the law requires a judge to review these wiretaps. It is up to the Congress to hold the President to account. We held a hearing on the domestic spying program in the Judiciary Committee yesterday, where Attorney General Gonzalez was a witness. We expect there will be other hearings. That is a start. But it will take more than hearings to get the job done. We know that, in part, because the President's Attorney General has already shown a willingness to mislead Congress.

At the hearing yesterday, I reminded the Attorney General about his testimony during his confirmation hearings in January 2005, when I asked him whether the President had the power to authorize warrantless wiretaps in violation of criminal law. We didn't know it then, but the President had authorized the NSA program 3 years before, when the Attorney General was the White House counsel. At his confirmation hearing, the Attorney General first tried to dismiss my question as ``hypothetical.'' He then testified that ``it is not the policy or the agenda of the President to authorize actions that would be in contravention of our criminal statutes.''

Wiretapping American citizens on American soil without the required warrant is in direct contravention of our criminal statutes. The Attorney General knew that, and he knew about the NSA program when he sought the Senate's approval for his nomination to be Attorney General. He wanted the Senate and the American people to think that the President had not acted on the extreme legal theory that the President has the power, as Commander in Chief, to disobey the criminal laws of this country. But he had.

The Attorney General had some explaining to do, and he didn't do it yesterday. Instead, he parsed words, argued that what he said was truthful because he didn't believe that the President's actions violated the law.

The Attorney General knew what I was asking. He knew he was misleading the committee in his response. If he had been straightforward, he would have told the committee that in his opinion, the President has the authority to authorize warrantless wiretaps. My question wasn't about whether such illegal wiretapping was going on. Similar to almost everybody else in Congress, I didn't know about the program then. It was a question about how the nominee to be the Attorney General of the United States viewed the law. This nominee wanted to be confirmed. So he let a misleading statement about one of the central issues of his confirmation, his view of Executive power, stay on the record until the New York Times revealed the program.

The rest of the Attorney General's performance at yesterday's hearing certainly did not give me any comfort either. He continued to push the administration's weak legal arguments, continued to insinuate that anyone who questions this program doesn't want to fight terrorism, and he refused to answer basic questions about what powers this administration is claiming.

We still need a lot of answers from this administration. Let's put aside the Attorney General for now. The burden is not just on him to come clean. The President himself has some explaining to do. The President's defense of his actions is deeply cynical, deeply misleading, and deeply troubling. To find out that the President of the United States has violated the basic rights of the American people is chilling. And then to see him publicly embrace his actions and to see so many Members of Congress cheer him on is appalling.

The President has broken the law. He has made it clear that he will continue to do so. But the President is not a king, and the Congress is not a king's court. Our job is not to stand up and cheer when the President breaks the law. Our job is to stand up and demand accountability, stand up and check the power of an out-of-control executive branch.

That is one of the reasons the Framers put us here--to ensure balance between the branches of Government, not to act as a professional cheering section. We need answers, because no one--not the President, not the Attorney General, and not any of their defenders in this body have been able to explain why it is necessary to break the law to defend against terrorism. I think that is because they cannot explain it.

Instead, this administration reacts to anybody who questions this illegal program by saying that those of us who demand the truth and stand up for our rights and freedoms have a pre-9/11 view of the world. In fact, the President has a pre-1776 view of the world. That is the problem. Our Founders lived in dangerous times, and they risked everything for freedom. Patrick Henry said, ``Give me liberty or give me death.'' The President's pre-1776 mentality is hurting America. It is fracturing the foundation on which our country has stood for 230 years.

The President cannot just bypass two branches of Government and obey only those laws he wants to obey, deciding unilaterally which freedoms still apply in the war against terrorism. That is unacceptable and needs to be stopped immediately.

Let's examine some of the President's attempts to defend his actions. His arguments have changed over time because none of them hold up even under casual scrutiny. So he cannot rely on one single explanation. As each argument crumbles beneath him, he moves on to a new one, until that is, too, debunked, and on and on he goes.

In the State of the Union, the President referred to Presidents in American history who cited executive authority to order warrantless surveillance. But of course those past Presidents, as Wilson and Roosevelt, were acting before the Supreme Court decided in 1967 that our communications are protected by the fourth amendment, and before Congress decided in 1978 that the executive branch can no longer unilaterally decide which Americans to wiretap. The Attorney General yesterday was unable to give me one example of a President who, since 1978 when FISA was passed, has authorized warrantless wiretaps outside of FISA.

So that argument is baseless, and it's deeply troubling that the President of the United States would so obviously mislead the Congress and American public. That hardly honors the Founders' idea that the President should address the Congress on the state of our union.

The Foreign Intelligence Surveillance Act was passed in 1978 to create a secret court, made up of judges who develop national security expertise, to issue warrants for surveillance of terrorists and spies. These are the judges from whom the Bush administration has obtained thousands of warrants since 9/11. The administration has almost never had a warrant request rejected by those judges. They have used the FISA Court thousands of times, but at the same time they assert that FISA is an ``old law'' or ``out of date'' and they can't comply with it. Clearly, they can and do comply with it except when they don't. Then they just arbitrarily decide to go around these judges, around the law.

The administration has said that it ignored FISA because it takes too long to get a warrant under that law. But we know that in an emergency, where the Attorney General believes that surveillance must begin before a court order can be obtained, FISA permits the wiretap to be executed immediately as long as the Government goes to the court within 72 hours. The Attorney General has complained that the emergency provision does not give him enough flexibility, he has complained that getting a FISA application together or getting the necessary approvals takes too long. But the problems he has cited are bureaucratic barriers that the executive branch put in place and could easily remove if it wanted.

FISA also permits the Attorney General to authorize unlimited warrantless electronic surveillance in the United States during the 15 days following a declaration of war, to allow time to consider any amendments to FISA required by a wartime emergency. That

is the time period that Congress specified. Yet the President thinks that he can do this indefinitely.

In the state of the union, the President also argued that Federal courts had approved the use of Presidential authority that he was invoking. But that turned out to be misleading as well. When I asked the Attorney General about this, he could point me to no court--not the Supreme Court or any other court--that has considered whether, after FISA was enacted, the President nonetheless had the authority to bypass it and authorize warrantless wiretaps. Not one court. The administration's effort to find support for what it has done in snippets of other court decisions would be laughable if this issue were not so serious.

The President knows that FISA makes it a crime to wiretap Americans in the United States without a warrant or a court order. Why else would he have assured the public, over and over again, that he was getting warrants before engaging in domestic surveillance?

Here's what the President said on April 20, 2004:

Now, by the way, any time you hear the United States

Government talking about wiretap, it requires--a wiretap

requires a court order. Nothing has changed, by the way. When

we're talking about chasing down terrorists, we're talking

about getting a court order before we do so.

And again, on July 14, 2004: ``The Government can't move on wiretaps or roving wiretaps without getting a court order.''

The President was understandably eager in these speeches to make it clear that under his administration, law enforcement was using the FISA Court to obtain warrants before wiretapping. That is understandable, since wiretapping Americans on American soil without a warrant is against the law.

And listen to what the President said on June 9, 2005:

Law enforcement officers need a Federal judge's permission

to wiretap a foreign terrorist's phone, a Federal judge's

permission to track his calls, or a Federal judge's

permission to search his property. Officers must meet strict

standards to use any of these tools. And these standards are

fully consistent with the Constitution of the U.S.

Now that the public knows about the domestic spying program, he has had to change course. He has looked around for arguments to cloak his actions. And all of them are completely threadbare.

The President has argued that Congress gave him authority to wiretap Americans on U.S. soil without a warrant when it passed the authorization for use of military force after September 11, 2001. Mr. President, that is ridiculous. Members of Congress did not think this resolution gave the President blanket authority to order these warrantless wiretaps. We all know that. Anyone in this body who would tell you otherwise either wasn't here at the time or isn't telling the truth. We authorized the President to use military force in Afghanistan, a necessary and justified response to September 11. We did not authorize him to wiretap American citizens on American soil without going through the process that was set up nearly three decades ago precisely to facilitate the domestic surveillance of terrorists--with the approval of a judge. That is why both Republicans and Democrats have questioned this theory that somehow the Afghanistan resolution permitted this sort of thing.

This particular claim is further undermined by congressional approval of the PATRIOT Act just a few weeks after we passed the authorization for the use of military force. The PATRIOT Act made it easier for law enforcement to conduct surveillance on suspected terrorists and spies, while maintaining FISA's baseline requirement of judicial approval for wiretaps of Americans in the U.S. It is ridiculous to think that Congress would have negotiated and enacted all the changes to FISA in the PATRIOT Act if it thought it had just authorized the President to ignore FISA in the AUMF.

In addition, in the intelligence authorization bill passed in December 2001, we extended the emergency authority in FISA, at the administration's request, from 24 to 72 hours. Why do that if the President has the power to ignore FISA? That makes no sense at all.

The President has also said that his inherent executive power gives him the power to approve this program. But here the President is acting in direct violation of a criminal statute. That means his power is, as Justice Jackson said in the steel seizure cases half a century ago, ``at its lowest ebb.'' A recent letter from a group of law professors and former executive branch officials points out that ``every time the Supreme Court has confronted a statute limiting the Commander-in- Chief's authority, it has upheld the statute.'' The Senate reports issued when FISA was enacted confirm the understanding that FISA overrode any pre-existing inherent authority of the President. As the 1978 Senate Judiciary Committee report stated, FISA ``recognizes no inherent power of the president in this area.'' And ``Congress has declared that this statute, not any claimed presidential power, controls.'' Contrary to what the President told the country in the State of the Union, no court has ever approved warrantless surveillance in violation of FISA.

The President's claims of inherent executive authority, and his assertions that the courts have approved this type of activity, are baseless.

The President has argued that periodic internal executive branch review provides an adequate check on the program. He has even characterized this periodic review as a safeguard for civil liberties. But we don't know what this check involves. And we do know that Congress explicitly rejected this idea of unilateral executive decisionmaking in this area when it passed FISA.

Finally, the President has tried to claim that informing a handful of congressional leaders, the so-called Gang of Eight, somehow excuses breaking the law. Of course, several of these Members said they weren't given the full story. And all of them were prohibited from discussing what they were told. So the fact that they were informed under these extraordinary circumstances does not constitute congressional oversight, and it most certainly does not constitute congressional approval of the program. Indeed, it doesn't even comply with the National Security Act, which requires the entire memberships of the House and Senate Intelligence Committee to be ``fully and currently informed of the intelligence activities of the United States.''

In addition, we now know that some of these Members expressed concern about the program. The administration ignored their protests. Just last week, one of the eight Members of Congress who has been briefed about the program, Congresswoman Jane Harman, ranking member of the House Intelligence Committee, said she sees no reason why the administration cannot accomplish its goals within the law as currently written.

None of the President's arguments explains or excuses his conduct or the NSA's domestic spying program. Not one. It is hard to believe that the President has the audacity to claim that they do. It is a strategy that really hinges on the credibility of the office of the Presidency itself. If you just insist that you didn't break the law, you haven't broken the law. It reminds me of what Richard Nixon said after he had left office: ``Well, when the President does it that means that it is not illegal.'' But that is not how our constitutional democracy works. Making those kinds of arguments is damaging the credibility of the Presidency.

And what's particularly disturbing is how many Members of Congress have responded. They stood up and cheered. They stood up and cheered.

Justice Louis Brandeis once wrote:

Experience should teach us to be most on our guard to

protect liberty when the Government's purposes are

beneficent. Men born to freedom are naturally alert to repel

invasion of their liberty by evil-minded rulers. The greatest

dangers to liberty lurk in insidious encroachment by men of

zeal, well-meaning but without understanding.

The President's actions are indefensible. Freedom is an enduring principle. It is not something to celebrate in one breath, and ignore the next. Freedom is at the heart of who we are as a Nation, and as a people. We cannot be a beacon of freedom for the world unless we protect our own freedoms here at home.

The President was right about one thing. In his address, he said ``We love our freedom, and we will fight to keep it.''

Yes, Mr. President. We do love our freedom, and we will fight to keep it.

We will fight to defeat the terrorists who threaten the safety and security of our families and loved ones. And we will fight to protect the rights of law-abiding Americans against intrusive Government power.

As the President said, we must always be clear in our principles. So let us be clear. We cherish the great and noble principle of freedom. We will fight to keep it, and we will hold this President and anyone who violates those freedoms accountable for their actions.

In a nation built on freedom, the President is not a king, and no one is above the law.

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

Mr. President, as a known sponsor of international terrorism, and in light of the president of Iran's recent apocalyptic statements calling for the destruction of Israel, Iran must not be allowed to develop nuclear weapons. The international community must respond quickly and decisively to Iran's gross disregard of international treaties and obligations and to its concerted and malicious efforts to develop the capability to create nuclear weapons.

The international community must take concerted and decisive action to prevent Iran from furthering its nuclear research and technology development. In its forthcoming meeting on February 2, 2006, the International Atomic Energy Agency (IAEA) Board of Governors should heed the calls by Russia, China, the European Union, and the United States to reaffirm its findings that Iran has blatantly violated its international obligations, recognize the grave nature of Iran's recent actions, and refer Iran to the United Nations Security Council. The Security Council should then speak with one voice to condemn Iran's actions and send a clear signal that continued defiance of the international community will not be tolerated.

It is essential that the Security Council approve specific actions to prevent the furthering of Iran's nuclear capabilities. The Security Council specifically, and the international community generally, must recognize the potentially devastating link between the violent and defiant rhetoric of Iran's president and his regime's determined effort to undermine approved and transparent methods of developing civilian nuclear technology for energy use.

Congress can also take steps to help stop or slow Iran's acquisition of nuclear and other WMD-related technology, including adding teeth to export control legislation such as the Iran and Syria Nonproliferation Act. The Iran Nonproliferation Enhancement Act, S.1976, that Senator Kyl and I introduced late last year would do just that. It would toughen the ISNA by requiring rather than merely authorizing sanctions on proliferators, extending sanctions to the parent companies, and increasing the types of sanctions that apply to proliferators. By adopting this legislation, we would be sending a crystal clear message to would-be proliferators: if you choose to assist Iran in developing nuclear or other WMD-related capabilities, you are also choosing to forgo doing business with the United States.

History teaches us that we cannot ignore the stated intent of those who seek to destroy nations. A nuclear-armed Iran would pose a grave threat to the region, to Israel, and to the entire international community. A concerted international effort is needed to prevent Iran from procuring the technology and materiel needed to develop a nuclear weapon. This effort must begin now, and it must be comprehensive.

Mr. President, while we are still awaiting final certification of the election results, it is apparent that the Islamic Resistance Movement, or Hamas, has obtained a significant number of seats in the new Palestinian legislative council. Despite its electoral success, Hamas remains a terrorist organization that has refused to renounce its fundamental commitment to the destruction of Israel and to the use of violence to achieve its goals.

Electoral results do not change the fact that a lasting, viable peace can only be obtained through a two-state solution. Hamas must use its electoral success as an opportunity to renounce its violent platform and to join in a coalition dedicated to achieving peace in the region. Renouncing terrorism and violence and accepting the right of Israel to exist are essential steps toward fulfilling the desire of the Palestinian people for a peaceful representative democracy.

Mr. President, making a decision on a Supreme Court nomination is truly among the most important responsibilities of the Senate. I have given the nominations the President has sent to us in the past 6 months serious and careful consideration.

The scrutiny to be applied to a President's nominee to the Supreme Court is the highest of any nomination. I have voted for executive branch appointees, and even for court of appeals nominees, whom I would not necessarily vote to put on the Supreme Court.

The Supreme Court, alone among our courts, has the power to revisit and reverse its precedents, and so I believe that anyone who sits on that Court must not have a preset agenda to reverse precedents with which he or she disagrees and must recognize and appreciate the awesome power and responsibility of the Court to do justice when other branches of Government infringe on or ignore the freedoms and rights of all citizens.

This is not a new standard. It is the same standard I applied to the nomination of Chief Justice Roberts. In that case, after careful consideration, I decided to vote in favor of the nomination. In the case of Judge Samuel Alito, after the same careful consideration, I must vote no.

Judge Alito has an impressive background and a very capable legal mind, but I have grave concerns about how he would rule on cases involving the application of the Bill of Rights in a time of war. Some of the most important cases that the Supreme Court will consider in the coming years will involve the Government's conduct of the fight against terrorism. It is critical that we have a strong and independent Supreme Court to evaluate these issues and to safeguard the rights and freedoms of Americans in the face of enormous pressures.

Confronted with an executive branch that has jealously claimed every possible authority that it can, and then some, the Supreme Court must continue to assert its constitutional role as a critical check on Executive power. Just how ``critical'' that check is has been made clear over the past few weeks, as Americans have learned that the President thinks his Executive power permits him to violate explicit criminal statutes by spying on Americans without a court order.

With the executive and the legislature at loggerheads, we may well need the Supreme Court to have the final word in this matter. In times of constitutional crisis, the Supreme Court can tell the executive it has gone too far, and require it to obey the law. Yet Judge Alito's record and testimony strongly suggest that he would do what he has done for much of his 15 years on the bench: defer to the executive branch in case after case at the expense of individual rights.

Although he has not decided cases dealing with the Bill of Rights in wartime, he has a very long record on the bench of ruling in favor of the government and against individuals in a variety of contexts. Indeed, this is an important distinction between Judge Alito and Chief Justice Roberts. Our new Chief Justice had a very limited judicial record before his nomination. Judge Alito has an extensive record. There is no better evidence of what kind of Justice he will be on the Supreme Court than his record as a court of appeals judge. He told us that himself.

A whole series of analyses by law professors and news organizations has shown that Judge Alito is very deferential toward the government, and one detailed analysis by the Washington Post concluded that he is more deferential than his Third Circuit colleagues and even than Republican-appointed appeals judges nationwide. This vividly demonstrates the concern I have about this nomination. Judge Alito is not simply a conservative judge appointed by a conservative President. His record is that of a jurist with a clear inclination to rule in favor of the government and against individual rights.

In particular, Judge Alito's record in fourth amendment cases shows a recurring pattern. In almost every fourth amendment case in which Judge Alito wrote an opinion, he either found no constitutional violation or argued that the violation should not prevent the illegally obtained evidence from being used. In more than a dozen dissents in criminal or fourth amendment cases, not once did Judge Alito argue for greater protection of individual rights than the majority.

In one case that he was asked about on several occasions at his hearing, Judge Alito, in dissent, argued that the strip search of a 10- year-old girl and her mother passed constitutional muster, even though they were not suspected of any crime or specifically mentioned in the search warrant. Judge Alito's answers to questions at the hearing about this case only reinforced concerns identified by outside scholars that he seems to ignore the serious interests of privacy and personal dignity protected by the fourth amendment and instead relies on technical readings of warrants so that he can authorize the government action.

Cases challenging government power comprise nearly half of the current Supreme Court's docket. A Supreme Court Justice should protect individual freedoms against government intrusion where justified, and, specifically, should appreciate that the fourth amendment serves to limit government power. As Yale Law School Professor Ronald Sullivan testified:

In the United States, perhaps no right is more sacred--more

worthy of vigilant protection--than the right of each and

every individual to be free from government interference

without the ``unquestionable'' authority of the law. Judge

Alito . . . shows an inadequate consideration for the

important values that underwrite these norms of individual

liberty--the very norms upon which this constitutional

democracy relies for its sustenance. . . . [T]his Senate's

decision on whether to consent to Judge Alito's nomination

will profoundly impact how liberty is realized in the United

States.

At the hearing, I and many other Senators repeatedly asked Judge Alito whether the President can violate a clear statutory prohibition, such as the Foreign Intelligence Surveillance Act and the ban on torture. He never answered the question. He returned again and again to a formulaic response that told us nothing at all: he said that the President must follow the Constitution and must follow the laws that are consistent with the Constitution. Any first-year law student could tell you that. That kind of stock phrase, which Judge Alito repeated over and over, tells us absolutely nothing about his view of whether the President can, consistent with the Constitution, violate a criminal law.

Judge Alito did point to Justice Jackson's three-part analysis in Youngstown. That is an appropriate framework, but merely citing Youngstown doesn't tell you anything about how he would apply that framework. Even when presented with the alarming hypothetical of whether a President can authorize a murder in the United States, Judge Alito would say no more.

These practiced and opaque responses gave me no reassurance about Judge Alito's views on these issues. What troubled me even more was that he repeatedly, and in some cases gratuitously, raised issues of justiciability

and the political question doctrine--that is, he seemed to question whether the courts can even weigh in on these serious legal battles between the legislature and the executive. Although he said he thought the courts could address questions involving individual rights, Judge Alito's instinct in discussing these historic issues was to focus on whether the courts even had a role to play. It wasn't to talk about the gravity of the issues at stake for our system of government, but to question whether he as a judge could even participate in the resolution of such critical constitutional conflicts.

I found that very disturbing, and it has played a significant role in my decision to vote against him. Judge Alito's record and his testimony have led me to conclude that his impulse to defer to the executive branch would make him a dangerous addition to the Supreme Court at a time when cases involving executive overreaching in the name of fighting terrorism are likely to be such an important part of the Court's work.

I am also concerned about Judge Alito's record and testimony on cases involving the death penalty. The Supreme Court plays a crucial role in death penalty cases. Judge Alito participated in five death penalty cases that resulted in split panels, and in every single one of those he voted against the death row inmate. A Washington Post analysis found that he ruled against defendants and for the government in death penalty cases significantly more often than other judges. And his testimony gave me no reason to believe that he will approach these cases any differently as a Supreme Court Justice.

To be blunt, I found Judge Alito's answers to questions about the death penalty to be chilling. He focused almost entirely on procedures and deference to state courts, and didn't appear to recognize the extremely weighty constitutional and legal rights involved in any case where a person's life is at stake.

I was particularly troubled by his refusal to say that an individual who went through a procedurally perfect trial, but was later proven innocent, had a constitutional right not to be executed. The Constitution states that no one in this country will be deprived of life without due process of law. It is hard to even imagine how any process that would allow the execution of someone who is known to be innocent could satisfy that requirement of our Bill of Rights. I pressed Judge Alito on this topic but rather than answering the question directly or acknowledging how horrific the idea of executing an innocent person is, or even pointing to the House v. Bell case currently pending in the Supreme Court on a related issue, Judge Alito mechanically laid out the procedures a person would have to follow in State and Federal court to raise an innocence claim, and the procedural barriers the person would have to surmount.

Judge Alito's record and response suggest that he analyzes death penalty appeals as a series of procedural hurdles that inmates must overcome, rather than as a critical backstop to prevent grave miscarriages of justice. The Supreme Court plays a very unique role in death penalty cases, and Judge Alito left me with no assurance that he would be able to review these cases without a weight on the scale in favor of the government.

One important question that I had about Judge Alito was his view on the role of precedent and stare decisis in our legal system. At his hearing, while restating the doctrine of stare decisis, Judge Alito repeatedly qualified his answers with the comment that stare decisis is not an ``inexorable command.'' While this is most certainly true, his insistence on qualifying his answers with this formulation was troubling. Combined with a judicial record in which fellow judges have criticized his application of precedent in several cases, Judge Alito's record and testimony do not give me the same comfort I had with Chief Justice Roberts that he has the respect for and deference to precedent that I would like to see in a Supreme Court Justice.

With respect to reproductive rights, Judge Alito said that he would look at any case with an ``open mind.'' That promise, however, is not reassuring given his prior denunciations of Roe, his legal work to undermine Roe, and his failure to disavow the strong legal views he had expressed in the 1980s when given the opportunity at his hearing. In his 1985 Justice Department job application, Judge Alito wrote that he believed that the Constitution does not protect a right to abortion, and, as an Assistant to the Solicitor General, he wrote a memo advocating a strategy for the Reagan administration to chip away at Roe v. Wade, with the ultimate goal of overturning that decision. Since he refused to say that he changed his mind, despite numerous chances, one can only think that he still believes what he said in 1985. And his opinions as a Third Circuit judge raise a legitimate concern that he will, if given the opportunity, be inclined to narrow reproductive rights.

I want also to say a brief word about ethics. The Vanguard case could have been disposed of fairly easily if Judge Alito had only admitted his mistake up front. Under questioning, Judge Alito finally admitted that there is no evidence that he followed through on his 1990 promise to the Judiciary Committee to recuse himself from any cases involving Vanguard. He also said that some of the explanations that he and his supporters gave for his failure to recuse from the Vanguard case in 2002--such as a ``computer glitch'' or the fact that his promise to the committee was somehow time-limited--were not in fact the true reasons that he failed to recuse himself from the 2002 case.

While I am not basing my vote on this matter, it continues to trouble me. First, it is not clear to me that Judge Alito took his 1990 promise to the Judiciary Committee seriously. Second, Judge Alito failed to clear up the inconsistent explanations before or at the outset of his hearing, even after documents revealed that those explanations were implausible and even though he knew that they were not the real reasons that he failed to recuse himself in 2002.

The concept of recusal, which recognizes that from time to time the public might reasonably believe that judges' biases or interests may cast doubt on the integrity of a judicial decision, is part of ensuring due process and protecting the public's confidence in the integrity of our system of justice. Despite numerous other reports of Judge Alito's honesty and integrity, I am not satisfied that he appreciates the importance of recusal.

His written answer to my question about how he would analyze recusal motions related to the Third Circuit judges who testified on his behalf raises concerns about his approach to conflicts of interest. Judge Alito wrote that he thinks Supreme Court Justices have ``less latitude to err on the side of recusal'' than other judges, because recusal could lead to evenly divided decisions. But when Congress amended the Federal recusal law in 1974, it specifically removed any so-called ``duty to sit'' in favor of a general standard requiring recusal if there is a reasonable basis for doubting the judge's impartiality. The purpose of that change was to enhance public confidence in the impartiality and fairness of the judicial system. In my view, Supreme Court Justices should have no more latitude in interpreting ethics rules than other judges; indeed, the recusal statute specifically applies to Supreme Court Justices.

I would argue that treating recusal issues seriously is even more important for Supreme Court Justices since they are solely responsible for their recusal decisions. There is no judicial review of their decisions, no formal procedure for the full Court review of such decisions, and, when a Justice improperly participates, a tainted constitutional decision cannot be undone. That is why it is so important to have Justices who adhere to the highest ethical standards. Judge Alito repeatedly told us that he seeks to carry out his duties in accordance with both the letter and spirit of all applicable rules of ethics and canons of conduct. He wrote in a letter to the chairman of the Judiciary Committee: ``[M]y personal practice is to recuse myself when any possible question might arise.'' Unfortunately, his description of how he would handle recusal motions as a Supreme Court Justice does not seem consistent with those statements.

It gives me no pleasure or satisfaction to vote against a nominee to the Supreme Court. If confirmed, he may well serve for over 20 years. I would very much like to have confidence that

this new Justice, who plainly has a keen legal mind, would be the kind of impartial, objective, and wise Justice that our Nation needs. But I do not, so I will vote no.

Mr. President, on January 1, 2006, the administration launched the Medicare prescription drug benefit, a program long touted by President Bush as the vehicle that would provide affordable, easily accessed prescription drugs for seniors. The program has fallen far short of that goal so far. The outcries that I have heard from pharmacists, beneficiaries, and health care providers over the past few weeks make clear that the implementation of the program has been a disaster. This program has not provided either affordable or easily accessed drugs to many Medicare beneficiaries. Instead, it has presented many seniors and the disabled with frustration, confusion, expensive medications, and sometimes no medications at all. It is unacceptable for individuals to go without lifesaving medications, yet this is what has been happening across the country since this program commenced. This situation is an emergency, and Congress needs to address it right away.

Since the beginning of January, I have received panicked phone calls from people in my State saying that they were unable to receive drugs that they have been routinely getting at their pharmacy every other month. Many calls were from people who could not receive essential drugs such as insulin, antipsychotics, or immunosuppressants for transplant patients. At the same time as I was hearing from people suffering from pain because they did not receive their pain medications, I received press releases from the Centers for Medicare and Medicaid that expressed satisfaction with the launch of the program and boasted of the millions of participants in the program. There may be millions participating in the program, but too many of them cannot receive their drugs, and too many pharmacists are unable to comply with the complicated regulations in the program. CMS should be focusing its efforts on addressing this emergency rather than disseminating public relations messages.

All anyone needs to do is visit their local pharmacy in order to see the problems with the benefit firsthand. There, they are likely to see harried pharmacists on the phone with Medicare or private drug plans. Chances are high that they are on hold. There are often long waiting lines of people in need of medications, sometimes in desperate need, and there are customers being charged incorrectly for their prescriptions. Sometimes they are charged so much that they cannot afford it because the costs exceed what they have in the bank or what their credit limits will allow. Tragically, many of the most vulnerable beneficiaries have been forced to walk out of the pharmacies without their drugs.

It is clear that, in many respects, the plan and the contingency plans for implementation have failed. For instance, the drug plan automatically enrolled millions of individuals eligible for both Medicare and Medicaid into drug plans, and although these individuals were supposed to be notified of this, many were not. Imagine the surprise when

these people visited the pharmacy this month thinking that they would receive their medications for the same price they paid in December. Some of these dually eligible individuals were victims of data glitches that resulted in the pharmacists being unable to verify enrollment in any insurance, and they were told to pay for the full costs of their drugs. Some were charged the wrong amount even though their insurance was verified. These bills reached into the thousands of dollars at times. I was disheartened to learn that some of the beneficiaries paid for the drugs on their credit cards, their only other option being to go without their medications. Those with little income will be paying for these drugs for months, with interest, and this is a sad burden for the Federal Government to place on the neediest in society.

While my office did its utmost to help those who called, I wonder how many Wisconsinites did not call my office, did not have relatives to help them, or were unable to get through to the help lines that had waiting times of up to 5 days. How many people are being forced into emergency rooms in order to get their medications? How many people are being injured because of lack of medications? Have any deaths occurred as a result of the extraordinary bureaucratic hurdles in this program? The Centers for Medicare and Medicaid Services needs to find answers to these questions and address this crisis immediately.

Fortunately, many State governments, including Wisconsin's, came to the aid of the public when the Federal Government would not by enacting emergency provisions. Now, these States are depending on the Federal Government to return the favor and reimburse them for funds that were spent out of tight State budgets. To date, the administration has refused to compensate States. I will work to try to make sure that Congress quickly addresses this problem, passes legislation, and reimburses the States.

The health of our Nation's citizens is not a partisan issue, and we all must join together to assist the most needy. I voted against this program in 2003 and have since made numerous attempts to try to improve the program. Since mid-December, I have sent three letters to the administration, urging that the most pressing problems with the Medicare drug benefit be addressed. While these efforts were not supported by Republicans, I want to make new efforts that I hope the other side of the aisle will support. We cannot sustain a great nation if we do not care for the elderly, the sick, the disabled, and the homebound. These are the populations that this drug plan is supposed to be serving, and I fear that they have been dismally let down the past few weeks. Let us not wait any longer. Congress is in session, we are in a position to come to their aid, and I hope that we will do the right thing and quickly bring relief to the suffering.

Mr. President, this budget reconciliation package that arrived from the House-Senate conference will leave our country's budget and the American people in a far worse state of affairs than they are today. I am disappointed that congressional leaders have chosen to use the budget reconciliation process to achieve controversial goals that will make life harder for those Americans in greatest need of help, and I will oppose this legislation.

As I stated when this bill passed the Senate, using reconciliation to push through legislation that will worsen our budget deficit and add billions more to the mountain of debt our children and grandchildren will have to pay is a perversion of a process designed to expedite measures to reduce the deficit.

Reconciliation was intended to help facilitate the enactment of measures to reduce the deficit and therefore secure the Nation's financial stability. It is ironic that it should be used to enact measures that not only aggravate our budget deficits and increase our massive debt, but also makes cuts to programs that help many Americans maintain their financial security.

There are substantial and unprecedented changes to the Medicaid program included in this bill. Rather than cut the wasteful, $10 billion Medicare Advantage slush fund that gives superfluous payments to insurance companies, conferees have chosen to cut benefits and shift costs onto the poorest in America. Usage of Medicaid is expected to drop significantly, forcing beneficiaries to become sicker and eventually utilize emergency room care. In fact, the Congressional Budget Office estimates that 17 million people will pay more for health services under Medicaid over 10 years, half of whom would be children. Is this how we want to take care of the needy in our society? This will be harmful not only to those in need of health care, but also to our hospitals, which will be burdened with more patients who are unable to pay. This shift of health care costs from the Government to Medicaid beneficiaries will only cost our hospitals and taxpayers more money in the long run--and this is being done under the guise of saving money and balancing our budget.

Perhaps the most worrying changes to our health care programs are the statutory changes to Medicaid and Medicare. This conference agreement institutes systemic limitations on services that will have effects for decades to come. Included in the bill are provisions that will force unlimited charges onto the poor for their health care where previously there were protections for those in near poverty. As if

loss of these protections were not enough, this will also allow health care providers to deny health care to people too poor to afford these charges.

This legislation also freezes Medicare payments to home health care providers. Home health is the most cost-efficient and comfortable way to provide long term care. By freezing home health care payments, access will drop, and many of the sickest in our country will be denied this option.

In addition to cutting into people's health care, this report cuts into welfare and child care funding on which many American families depend. Last week, the Senate passed a motion to instruct conferees that urged welfare reauthorization to be removed from the budget package. I voted for this motion, which passed overwhelmingly. Despite the success, the House chose to include welfare reauthorization anyway. This was done under the radar in a move that was largely unseen by people who will be affected by the changes. And the changes are significant. This reauthorization represents the largest change in welfare policy since 1996, and it will impose expensive new work requirements on states with no additional funding provided. So those on welfare will be working more hours, and what will they do with their children? Child care funds have been cut by $1 billion in this bill. This is $7.4 billion less than CBO estimates to be the cost to states of meeting the new work requirements, and more than $11 billion less than what states will need to ensure that their current child care programs can stay afloat through all the additional changes in the budget package. These are unconscionable cuts to programs that serve as safety nets for the most vulnerable.

I am also deeply troubled that almost one-third of the savings in the budget reconciliation bill come at the expense of the student loan program. I regret that a portion of the savings within the student loan program is achieved by increasing fees paid by student and parent borrowers. While I may support provisions in this agreement that eliminate unnecessary subsidies for lenders, the money saved through this elimination should go toward making college more affordable and increase grant aid such as Pell Grants. I regret that this money is not funneled back towards increased aid for America's students.

This agreement also increases the maximum subsidized loan amounts that first and second year students can borrow and increases the maximum amount of unsubsidized loans that graduate students can borrow. While increasing loan limits will help students cover the costs of their education, I find it disheartening that we as a Congress are pushing more of a financial burden on these students as tuition rates around the country increase. Rather than cutting money from the student loan program and requiring students to borrow more and pay more in fees, we should instead be working to find ways to make a college education affordable to all students.

While I welcome the addition of some new grant aid for Pell-eligible students, I have heard concerns from my constituents in Wisconsin that the requirements accompanying the increased aid will make the program difficult to administer and could exclude many of the Pell-eligible students from receiving this aid. One requirement for freshman and sophomore Pell-eligible students to receive this aid is the condition that the student must have completed a ``rigorous secondary school program''. Under the agreement, the Secretary of Education determines whether or not the student has fulfilled that requirement. What is not clear, however, is how the Secretary will actually measure which programs are deemed rigorous and therefore which students will receive the aid. I am concerned that students who attend disadvantaged schools will not be eligible for the aid under the wording in this agreement.

Another troubling aspect of the new grant aid is the requirement that students attend school full-time during their first year of college. This provision would eliminate many Pell-eligible students who attend school part-time and work part-time. Again, I think this sends the wrong message to our youth who are considering attending college and attempting to finance their education.

We can do better for young Americans in Wisconsin and around the nation by working to increase aid in an inclusive manner and working to make a college education more affordable to all. These cuts to the student loan program are another reason that I will vote to oppose this conference agreement.

If there is a silver lining to this sham of a budget reconciliation package, it is the conference committee's decision to retain the Senate's extension of the Milk Income Loss Contract, MILC, program and reject cuts to Food Stamps. Even this support for these two vital programs is tempered by short-sighted cuts to other agriculture programs such as the limits placed on conservation programs that assist farmers in their stewardship of the land.

I will not support using reconciliation to enact harmful, controversial policies that will worsen budget deficits and increase the debt. No matter how many pieces you slice it into, the reconciliation instruction in the budget resolution will leave us with bigger deficits, not smaller ones.

This budget sends the message that those living in poverty are Congress' lowest priority: and this reveals a profound lack of empathy and kindness for the most defenseless in our society. When Congress and the White House become serious about cleaning up the fiscal mess they created, and when they are willing to spread the burden of that clean up across all programs--defense and non-defense discretionary programs, entitlements, and the spending done through the Tax Code--I am ready to help. But so long as we see reconciliation measures that cut aid to those most vulnerable, and cuts to Government spending is done on the backs of the poor, I must oppose them.

Mr. President, I hope today the Senate will side with rules, history, and future when it is time for this Senate to go on record as to whether it is okay to break the rules to do something you cannot otherwise get done.

My colleagues know I do not support drilling in the Arctic Refuge. But this is not simply a debate about oil, wildlife, and energy policy. The debate we are having and the vote we are about to have is about how this institution and this democracy operate. Some have said there is precedent for violating rule XXVIII. My response is simple: Abusing the process and breaking the rules in the past does not justify doing so now, especially knowing it was a mistake.

We worked in a bipartisan fashion to reinstate these very rules in 2000. We did this because these rules are designed to protect all of us against abuses of power. If Senators do not stand up to the current and very troubling tactics we are seeing, what hope is there of stopping future attempts to hijack other legislation to pass proposals that cannot stand on their own merits?

There are clearly Members who are determined to open the Arctic Refuge to drilling. I suspect every Member also has a couple of things we desperately want signed into law. However, we have a responsibility to respect the rules and traditions of the Senate. I urge my colleagues to vote against cloture and to vote to uphold the rules of this institution in which we are honored to serve.

I yield the floor.

Mr. President, the annual Defense Appropriations bill is rightly considered a priority most years, and Congress typically completes its work on this important bill early in the year. This year, however, progress on this bill was suspended largely because of Republican political maneuvering. I supported the Senate version of this bill, but a very different bill emerged from conference. That conference report was hijacked by the Republican leadership in a cynical effort to try to pass controversial provisions that have nothing to do with our defense. By jeopardizing funding for our brave men and women in uniform, and attempting to circumvent the rules that govern the Senate, those leaders placed their own narrow interests above those of the country and this institution.

The most blatant abuse was the insertion into the conference report of a

provision that appeared in neither bill to open the Arctic National Wildlife Refuge to drilling. I have already addressed the Senate twice this week on why that provision had no place in this conference report and I am pleased that my colleagues have joined me in sending a clear message that we will not tolerate attempts to hold vital funding hostage to unrelated special interest provisions.

While we were successful in removing the Arctic provisions, I remain very troubled about provisions included in the emergency funds slated for pandemic influenza preparedness. While I have long advocated for pandemic influenza preparedness funding, and while I am pleased that $3.8 billion is provided for this purpose, I am deeply concerned about the inclusion of far-reaching liability protections for health care providers and vaccine manufacturers in this conference report. It is an abuse of the appropriations process to incorporate such sweeping legal protections into a measure providing funds for the military.

The provisions inserted in the conference report would exempt vaccine producers from civil liability for injuries caused by vaccines, unless the health care provider or vaccine manufacturer acted with willful misconduct. This language is extremely far-reaching. Plaintiffs would need to prove that the health care providers or vaccine manufacturers acted intentionally, acted without justification, and disregarded known or obvious risks that the harm would outweigh the benefit. This will be extremely difficult for plaintiffs to establish. Furthermore, disregarding the advice of public health experts, the language fails to provide meaningful injury compensation provisions to help those injured by vaccines. These protections for health care providers and vaccine manufacturers are unparalleled, and it is painfully clear that our leadership in Congress and in the White House is not listening to the concerns of first responders, families, or public and global health experts. They are listening only to the businesses and industries that would use the threat of pandemic influenza as an opportunity to help their own profit margins.

Mr. President, I also object to the inclusion of certain provisions of the Hurricane Education Recovery Act in the Department of Defense Appropriations bill. More than 370,000 elementary and secondary students have been displaced as a result of Hurricane Katrina. Schools across the country, including some in Wisconsin, have opened their doors to these students. I strongly support efforts to assist the schools that are welcoming these students as they continue to work to make this transition and school year go as smoothly as possible.

But I am troubled by key provisions of the legislation. For example, Section 107 of the Act would allocate Federal funding to go directly through State agencies to local school districts where displaced students have enrolled in public or private schools. The local school districts, which are government agencies, would then be responsible for issuing direct payments to public and private schools educating displaced students. Earlier this year, the Senate soundly defeated a proposal to provide vouchers directly to parents with little in the way of civil rights protections. The Senate subsequently passed a measure that, like the measure now before this body, would have passed taxpayer money to private schools through local public school districts. I had grave concerns about that provision, and I am even more troubled that the provisions before us do not include even the modest attempts at civil rights and other protections that were included in the Senate passed language. While I believe the supporters of this act are well- intentioned, I am concerned that Senate passage of this measure would create a troubling precedent with regard to taxpayer-funded school vouchers.

I oppose school vouchers because such programs funnel taxpayer money away from the public schools that this funding is intended to support and instead direct this funding to private schools that do not have to adhere to the same Federal, State, and local accountability and civil rights laws and regulations that apply to public schools. I strongly support providing assistance to the students and schools that have been affected by Hurricane Katrina, but we should do so within existing Federal laws that allow local public school districts to provide specific educational services--rather than direct funding--to private schools.

Mr. President, I also object to the across-the-board cut to discretionary programs, including education programs, that was inserted in this conference report. The Labor-HHS-Education appropriations bill already cuts or allows for only nominal increases in funding for education. This across-the-board cut would magnify the damage done by that appropriations bill, which awaits final action. If both the across-the-board cut and the Labor-HHS-Ed appropriations bill are adopted, total Federal education funding would be cut for the first time in a decade, Funding would be cut for No Child Left Behind, at a time that we are still requiring States to comply with testing all students in reading and math in grades 3-8 for the first time this school year. Title I funding would be cut for the first time in 13 years, hurting children that are currently eligible to receive Title I services. The Federal share of special education costs would be cut for the first time in a decade forcing States and local school districts to pick up the slack. And I regret that the maximum Pell Grant award would be frozen for the fourth year in a row at $4,050.

Mr. President, reducing funding for our nation's schools is not the message we should be sending to our youth. We need to find ways to provide an excellent K-12 education for all of America's children and find ways to make college more affordable for young people now and in the future. Cutting funding for these various programs is not the answer and this across-the-board cut is particularly regrettable. I strongly support reducing our budget deficit and have long promoted measures, such as PAYGO, that would help us toward that goal. But cutting funding for those most in need is not the solution.

I am pleased that the conference report sends such a strong message to the administration about the treatment of detainees by adopting the amendment of the senior Senator from Arizona. The lack of a clear policy regarding the treatment of detainees has been confusing and counter-productive. It has left our men and women in uniform in the lurch with no clear direction about what is and is not permissible. This failure on the part of the administration has sullied our reputation as a Nation, and hurt our efforts to promote democracy and human rights in the Arab and Muslim worlds. I have been proud to support Senator McCain's amendment on interrogation policy because it should help to bring back some accountability to the process and restore our great Nation's reputation as the world's leading advocate for human rights.

I am disappointed with the mixed messages that the Senate continues to send to the administration and the country on issues related to the detainees held at Guantanamo Bay. In addition to the important McCain amendment on torture, the conference report also includes the Graham amendment, which remains deeply troubling because of the restrictions it places on judicial review of detainees held at Guantanamo. However, it is important to note that the provision is limited in critical ways. The provision on judicial review of military commissions covers only ``final decisions'' of military commissions, and only governs challenges brought under that provision. In addition, the language in Section 1405(e)(2) that prohibits ``any other action against the United States'' applies only to suits brought relating to an ``aspect of detention by the Department of Defense.'' Therefore, it is my understanding that this provision would not affect the ongoing litigation in Hamdan v. Rumsfeld before the Supreme Court because that case involves a challenge to trial by military commission, not to an aspect of a detention, and of course was not brought under this provision. Furthermore, it is important to make clear that this provision should not be read to endorse the current system of trial by military commission for those at Guantanamo Bay. This provision reflects, but certainly does not endorse, the existing status of those military commissions, which is that they are currently legal under a decision of the D.C. Circuit.

However, the Supreme Court has not yet addressed the legality of such military commissions, and this amendment should not be read as any indication that Congress is weighing in on that issue. While I would have strongly preferred that this amendment not be included in the conference report, I think it is important to note these limitations on its practical effect.

In closing, Mr. President, I am pleased that I was able to vote for a bill to provide our brave men and women in uniform with the funding they need. But I am disappointed with the long and winding road that it took to get to this point. I hope that Republican leaders are on notice that the Senate will not turn a blind eye when they break the rules and put their own narrow interests above those of the country and the troops.

Mr. President, I am pleased that the Senate was finally able to debate and pass the Defense Authorization Act. It is indefensible that this important legislation was put on the backburner for so long; held back until the eleventh hour by the majority for various special interests and political reasons. The American people and the troops deserve better than that.

I am pleased that this bill includes important provisions for our men and women in uniform and their families. I am very pleased that we were able to include a 3.1 percent pay raise for all of our men and women in uniform as well as a host of bonus and incentive pays to help the military in its recruiting and retention efforts. The conference report also contains an important provision that permanently increases the death gratuity for those killed on active duty. Although the Senate's strong bipartisan efforts to make TRICARE available for the Guard and Reserve were again watered down in the conference report, the final bill still includes significant improvements in TRICARE access for all of our citizen-soldiers. These are just a few examples of the important provisions contained in this bill.

I am proud that the Congress has finally, definitively, sent such a strong message to the administration about the treatment of detainees by enacting the amendment of the senior Senator from Arizona. The lack of a clear policy regarding the treatment of detainees has been confusing and counter-productive. It has left our men and women in uniform in the lurch with no clear direction about what is and is not permissible. This failure on the part of the administration has sullied our reputation as a Nation, and hurt our efforts to promote democracy and human rights in the Arab and Muslim worlds. I have been proud to support Senator McCain's amendment on interrogation policy because it should help to bring back some accountability to the process and restore our great Nation's reputation as the world's leading advocate for human rights.

Although I voted for the Department of Defense authorization bill, I am disappointed with the mixed messages that the Senate continues to send to the administration and the country on issues related to the detainees held at Guantanamo Bay. Even as we enact the important McCain amendment on torture, the conference report also includes the Graham amendment, which remains deeply troubling because of the restrictions it places on judicial review of detainees held at Guantanamo. However, it is important to note that the provision is limited in critical ways. The provision on judicial review of military commissions covers only ``final decisions'' of military commissions, and only governs challenges brought under that provision. In addition, the language in section 1405(e)(2) that prohibits ``any other action against the United States'' applies only to suits brought relating to an ``aspect of detention by the Department of Defense.'' Therefore, it is my understanding that this provision will not affect the ongoing litigation in Hamdan v. Rumsfeld before the Supreme Court because that case involves a challenge to trial by military commission, not to an aspect of a detention, and of course was not brought under this provision. Furthermore, it is important to make clear that this provision should not be read to endorse the current system of trial by military commission for those at Guantanamo Bay. This provision reflects, but certainly does not endorse, the existing status of those military commissions, which is that they are currently legal under a decision of the DC Circuit. However, the Supreme Court has not yet addressed the legality of such military commissions, and this amendment should not be read as any indication that Congress is weighing in on that issue. While I would have strongly preferred that this amendment not be included in the conference report, I think it is important to note these limitations on its practical effect.

I am pleased that the conference report contained a number of provisions I authored, including my amendment to enhance and strengthen the transition services that are provided to our military personnel by making a number of improvements to the existing transition and postdeployment/predischarge health assessment programs. The conference report also includes my amendment that corrects a flaw in the law that unintentionally restricted the number of families of injured servicemembers who qualify for travel assistance. The change in the law now ensures that families of injured servicemembers evacuated to a U.S. hospital get at least one trip paid for so that these families can quickly reunite and begin recovering from the trauma they have experienced.

The military's high operational tempo over the last 4 years led it to keep thousands of troops beyond their contractual separation dates through a policy often referred to as ``stop-loss.'' The Pentagon did a poor job of clearly disclosing to volunteers that they could be stop- lossed and so many who thought they had completed their military service found themselves deployed to a combat zone. It is not difficult to understand how this policy turned upside down the lives of the impacted troops and their families. The conference report includes an amendment I authored requiring the Department of Defense to report on the steps it is taking to clearly communicate the stop-loss policy to potential enlistees and re-enlistees. I hope that, by pushing the Department to report on the actions it is taken to ensure that potential recruits know the terms of their service, the Department will take quick action to address this problem.

Despite the unprecedented levels of defense spending, the Government Accountability Office recently found that the Department of Defense is not only doing a poor job in replacing equipment that is being rapidly worn out but is not even tracking its equipment needs. Military readiness has suffered as a result. I authored an amendment retained in the conference report requiring DOD to submit a comprehensive report in conjunction with the President's annual budget request that details DOD's program strategies and funding plans to ensure that DOD's budget decisions address these equipment deficiencies. Such a report will make DOD's equipment needs more transparent and will allow Congress to provide more effective oversight and hold the Department accountable.

I am disappointed that the conference report did not maintain the bipartisan amendment I authored establishing the Civilian Linguist Reserve Corps, CLRC, pilot project. Our Government is in desperate need of people with critical language skills and the CLRC model, which is strongly supported by the Defense Department, has

the potential of addressing this need in a fiscally responsible manner. It is unfortunate that the conferees chose to go another route.

In conclusion, I must note, as I have in all of the 13 years I have served in the Senate, my disappointment that we continue the wasteful trend of spending billions of dollars on Cold War-era weapons systems while not fully funding our current needs. This enormous bill could have been better. However, on balance this legislation contains many good provisions for our men and women in uniform and their families and that is why I support it.

Mr. President, we recently passed a disturbing milestone in this country. One morning just a few weeks ago in North Carolina, Kenneth Lee Boyd was put to death by lethal injection. Mr. Boyd's was the one thousandth execution since the death penalty was reinstated in 1976. While a jury decided that his guilt was not in doubt, confidence in the extraordinary punishment he received increasingly is.

Across the Nation, people are reconsidering capital punishment. Recent polls, jury verdicts, and actions taken by all three branches of government in States across the country reflect the changing attitudes about the death penalty in this country. Americans are increasingly concerned about the use of this very final punishment.

With advances in DNA technology, numerous exonerations of people on death row, and new revelations that innocent people have actually been put to death, more and more people are questioning the accuracy and fairness of the administration of the death penalty. In addition, more and more people have qualms about the very concept of state-sponsored executions. This trend is a hopeful sign, as I believe there continue to be numerous moral, ethical and legal problems with the death penalty.

According to a series of Gallup polls, opposition to the death penalty has grown from 13 percent of Americans in 1995 to 30 percent in October of this year. Think about that. In just 10 years, we went from a vast majority of Americans supporting the death penalty, to nearly one-third now opposing it. That is the highest level of opposition since its reinstatement almost 30 years ago. And a CBS News poll from April indicates that when people were asked whether they prefer the death penalty or life without parole for individuals convicted of murder, only 39 percent supported the death penalty.

Evidence of the changing attitudes about the death penalty can be seen across America. The U.S. Conference of Catholic Bishops recently launched a campaign to end the use of the death penalty. In New York earlier this year, the State's highest court struck down the State's capital punishment statute, which had passed only 10 years earlier in 1995. The legislature then declined to reinstate the law, making New York the first state to abandon capital punishment since 1976. That is a remarkable sign of progress.

Meanwhile, just over the river in Virginia, the death penalty was a key issue in the last gubernatorial election. Tim Kaine, the current Lieutenant Governor, has long been personally opposed to the death penalty, although he pledged to enforce the law in Virginia. In the final weeks before the election, his opponent Jerry Kilgore began an ad campaign that heavily criticized Kaine's opposition to the death penalty. Kilgore strongly supports capital punishment and during the campaign he said he would push to expand its use in Virginia. But when Kilgore went after Kaine on the death penalty, Virginians did not take the bait. Despite Kilgore's attack ads, the citizens of Virginia elected Kaine Governor, and he will become Virginia's Governor in January.

I think what happened in Virginia strongly demonstrates how far we have come. This issue can no longer be used as a political grenade. A majority of Americans may not yet oppose the death penalty, but the electorate understands what a serious issue this is, and it will not stand for capital punishment to be exploited for political purposes.

Yet another example of the seriousness with which citizens and politicians alike are treating this .issue is outgoing Virginia Governor Mark Warner's recent commutation of the sentence of Robin Lovitt to life in prison. Mr. Lovitt was convicted of robbery and murder and sentenced to death, but before he had exhausted all judicial remedies, a court employee destroyed the physical evidence in his case--the very evidence that Lovitt said would exonerate him if subjected to new advanced DNA analysis. Under Virginia law, the Commonwealth must keep all physical evidence until the defendant has exhausted all posttrial remedies. Although Governor Warner is a death penalty supporter, he decided that he simply could not put a man to death when the State itself had destroyed his ability to prove his innocence. As he put it, he believed that the case ``require[d] executive intervention to reaffirm public confidence in our justice system.'' In his almost 4 years as Governor, this was the first time Governor Warner granted a clemency petition.

On the other side of the country, we have seen a great deal of public debate as Governor Schwarzenegger considered a clemency petition for Stanley Tookie Williams. Williams was a founding member of the Crips gang and was convicted of four murders in 1981. During his years in prison, however, Williams, by all accounts, worked to turn his life around. He denounced gang violence, tried to keep kids out of gangs, and even helped broker peace deals between rival gangs. Governor Schwarzenegger denied clemency and refused to commute Mr. Williams' death sentence to life without parole. The State of California put Mr. Williams to death on December 13.

Much more is happening at the State level that has not received nearly as much attention. North Carolina and California recently created commissions to study the administration of the death penalty in their respective States, joining many other states that have already done so. Moratoriums on executions remain in place in Illinois and New Jersey, and are under consideration in other States. Many State legislatures have worked to address flaws in their systems or even rejected

efforts to reinstate the death penalty. State courts have limited or banned the death penalty, including the Kansas Supreme Court, which in 2001 ruled that State's death penalty law unconstitutional. That case, Kansas v. Marsh, was heard in the U.S. Supreme Court just last week. Even in Texas, the State that executes by far the most people every year, a life-without-parole sentence was recently enacted, giving juries a strong alternative to the death penalty. And Texas Governor Perry also established a Criminal Justice Advisory Council to review the State's capital punishment procedures.

These signs of progress have coincided with critical new restraints imposed by the Supreme Court, which in recent years has issued two key rulings that limited the application of the death penalty. In 2002, the Court held in Atkins v. Virginia that applying the death penalty to mentally retarded defendants was excessive and constituted cruel and unusual punishment in violation of the Eighth Amendment. And just this year, in Roper v. Simmons, the Court made the same decision with regard to individuals who commit crimes before their eighteenth birthday. Capital punishment for mentally retarded defendants and juveniles is now unconstitutional in the United States.

Mr. President, as I mentioned before, there are many reasons people are questioning the death penalty in ever-increasing numbers. A common concern is that innocent people end up on death row, and we cannot tolerate errors when the state is imposing such a final penalty. More than 120 people on death row have been exonerated and released. Think about that. Just over one thousand people have been executed in the era of the modem death penalty, while a number equaling 12 percent of those executed have been exonerated. Those are not good odds, Mr. President.

Even more horrific is the prospect that we have already executed individuals who were, in fact, innocent. It saddens me greatly to report that information has come to light strongly demonstrating that two men put to death in this country in the 1990s may well have been innocent. That sends chills down my spine, as I'm sure it must for my colleagues.

Earlier this year in Missouri, local prosecutors in St. Louis reopened the case of a 1980 murder because the evidence against the man convicted of the crime had fallen apart. That man, Larry Griffin, was sentenced to death, and he was executed by the State of Missouri more than 10 years ago. Yet now, 25 years after the crime and more than 10 years after his execution, very serious questions about his guilt are being raised. CNN recently reported that a University of Michigan law professor who researched the case found that the first police officer on the scene now claims the person who testified as an eyewitness gave false testimony. A victim of the shooting, who was never contacted before Mr. Griffin's original trial, stated that the person claiming to be an eyewitness at the original trial was not present at the scene of the crime. Samuel Gross, the Michigan law professor who supervised the new investigation of the case that led to the St. Louis Circuit Attorney's decision, was quoted as saying with regard to this man's innocence: ``There's no case that I know of where the evidence that's been produced in public is as strong as what we see here.''

The second case is from Texas, where a young man named Ruben Cantu was executed in 1993. He was just seventeen at the time of the murder for which he was executed. Again, in this case, the only eyewitness to the crime has recanted his statement, and told the Houston Chronicle that Cantu was innocent. The Houston Chronicle also reported that the judge, prosecutor, head juror, and defense attorney have since realized that, as the newspaper put it, ``his conviction seems to have been built on omission and lies.''

The loss of one innocent life through capital punishment should be enough to force all of us to stop and reconsider this penalty. These cases illustrate the grave danger in imposing the death penalty. Whatever the new evidence that might come to light, it doesn't matter. There's no going back.

Mr. President, I know that many people in this country say that it doesn't matter what other countries do or say, that we should not look abroad for ideas. But the fact is that attitudes are changing around the world about capital punishment, and the United States is in poor company internationally on this issue. We are the only Western democracy ranked in the top ten countries in executions in 2004. And increasingly, other countries are rejecting capital punishment. Over the past 10 years, according to Amnesty International, an average of three countries per year has abolished the death penalty.

In closing, I urge my colleagues to take a long, hard look at capital punishment. Years of study have shown that the death penalty does little to deter crime, and that defendants' likelihood of being sentenced to death depends heavily on whether they are rich or poor, and what race their victims were. We have experienced again and again the risks, and realities, of innocent people being sentenced to death. I believe that is it wrong for the State to put people to death, especially when we can achieve our public safety goals by sentencing them to life without parole. It is heartening to see so many people reconsidering the death penalty, and it is my hope that in time we will end it in the United States.

I yield the floor.

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

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

Madam President, I wish to bring to the attention of the body the extremely troubling tactics that some in this body have used over the past few days to try to push through a legislative proposal that, standing on its own, does not have the support of a majority of the U.S. Congress. And I think these tactics reflect poorly on this body and its leadership. Discarding the rules that govern all of us demonstrates contempt not only for the need to have and follow rules, but for the history, and future, of the United States Senate.

To be clear, I am talking about the inclusion of the Arctic National Wildlife Refuge drilling provision in the Department of Defense appropriations bill, a provision we all know is controversial and has not been able to pass Congress on a variety of occasions.

Drilling in the Arctic has absolutely nothing to do with funding the Defense Department. The distinguished minority leader has already submitted into the Record a letter from five retired U.S. generals who are arguing this very point: Funding for our brave men and women in uniform should not be jeopardized by including a highly controversial and unrelated provision to open up the Arctic National Wildlife Refuge for drilling.

I ask unanimous consent that this letter be again printed in the Record.

Thank you, Madam President.

For the benefit of my colleagues, I would like to read from the Senate's Web page and the Web page of the Senate Committee on Rules and Administration--the very places the American public would refer to when interested in learning how the Senate has said it will conduct business. I have printed copies of the relevant pieces of these U.S. Government Web sites, and I ask unanimous consent that these be printed in the Record.

Thank you, Madam President.

Let me start with reading from the Senate Web page's description of the legislative process--our description to

the public as to how we do business in our Nation's Capitol.

Under the heading ``Conference Committees; reports; open meetings,'' the first sentence reads:

2. Conferees shall not insert in their report matter not

committed to them by either House, nor shall they strike from

the bill matter agreed to by both Houses.

This section goes on in more detail, but let me turn to what our constituents, members of the public whom we expect to abide by the laws we pass, would find if they visited the Senate Committee on Rules and Administration Web site:

All legislative bodies need rules to follow if they are to

transact business in an orderly fashion. Legislatures must

have established rules if they are to operate fairly,

efficiently, and expeditiously.

The committee Web site goes on to quote from Thomas Jefferson's 1801 edition of the ``Manual of Parliamentary Practice,'' saying that:

. . . whether the rules ``be in all cases the most rational

or not, is really not of so great importance. It is much more

material that there should be a rule to go by than what the

rule is; that there may be a uniformity of proceeding in

business, not subject to the caprice of the Speaker or

captiousness of the members. It is very material that order,

decency, and regularity be preserved in a dignified public

body.''

A logical follow-up question is then: How is it that we find it acceptable to knowingly break our own rules? I am truly astonished at the contempt I see certain of my colleagues showing for this institution on this issue.

I could stand here and read at length from the history of the Senate rules, as written by the Senate Committee on Rules and Administration, to reflect on how our rules came to be. I will not do that. But I do encourage my colleagues to read up on this history, because if we go forward on the path that some have set, I worry what it means for the future of this body. It most definitely opens the door to future abuses. If you don't like the rules, you break them. In fact, those who want the drilling provision included in the defense spending bill, recognizing that it breaks Senate rules, have actually put language into the conference report that says once the bill is signed into law, Senate rule 28 would come back into effect.

In fact, let me read the exact language:

Section 13, Legislative Procedure: Effective immediately,

the Presiding Officer shall apply all of the precedents of

the Senate under rule 28 in effect at the beginning of the

109th Congress.

So apparently you can break the rules because you will immediately reinstate the rules. Is this the message the Senate is willing to send to the American public? I have more faith in this body than to believe we are willing to sink so low.

Let's imagine the consequences if, in fact, this conference report is accepted. You can't move an unpopular proposal through the legislative process? No need to worry. You just attach language to an important funding bill that says you want to reinstate the rules after you have broken them. Is this the precedent that we, Members of both parties, want to set, a precedent that says you can break the rules because you will put them back in place? I sincerely hope not.

Additionally, how will we respond when our constituents ask us, how is it that the very people who make the laws that govern public behavior simply ignore the rules governing their own behavior? What will we say?

Madam President, I hope when it comes time for the Senate to go on record as to whether it believes its rules are important enough to stand, that a majority of this body will take the honorable position that this institution's rules are worth defending.

I yield the floor.

Madam President, I wish to make a couple quick points regarding the remarks of the Senator from Alaska.

Let's be clear, the Senate has never passed the version of the Arctic drilling that is included in this Department of Defense bill. That is simply not the case.

The Senator indicated we passed this provision before, and we had not. And if the Senator is not breaking the rules, why does he need to create language that explicitly reinstates the rule? He can't have it both ways--have language that says the rule doesn't apply in this instance but will go right back into effect. It clearly is breaking the rule, and the Senator is trying to set a precedent for all this. The aviation bill from the midnineties--I remember that one--they didn't have the votes to put in this special interest provision for Federal Express business. It is something that never passed any committee in the whole Congress. Yes, they violated the rules and abused the rules to get that one done, too. I wouldn't use that as a precedent. It is merely a precedent of the abuse that is occurring here.