Jeff Bingaman

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, today I pay tribute to Wayne Sayer, who died suddenly on November 3 of this year. When I came to the Senate in 1983, Wayne was among the first people I met who was interested in and concerned about the loss of our semiconductor industry to Asia. He was one of the first to recognize the value of a close partnership between government policy and the U.S. high-tech industry. His advice and counsel to members and staff through these early debates until the day he died were invaluable. His contributions to American competitiveness cannot be overstated. An Air Force veteran, he first worked for Precision Scientific, an instrumentation company. When Precision Scientific was acquired by GCA Corporation, he stayed with the new company and eventually opened GCA's Washington, DC office. At the time of his death, he was the senior government affairs consultant to Applied Materials. He was a smart, hard-working man with a great sense of humor and style. Those of us who valued his counsel and enjoyed his company over the years will miss his voice of good sense, his skill with policy issues and mostly his friendship. This is a loss, Mr. President, not only to the industry but to the country.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

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

Mr. BINGAMAN. Mr. President, could I ask the floor manager? I would prefer if we had 2 minutes equally divided prior to the first vote as well since there has been some time since we debated it. I want the chance to explain it for 1 minute before we have a vote.

Mr. BINGAMAN. Mr. President, this amendment would establish a link between the export of nuclear fuel and equipment to India under the United States-India nuclear agreement and India's halting of the production of nuclear weapons material. More specifically, my amendment provides two separate tests, one for nuclear equipment and technology, and another for nuclear material. As to the nuclear equipment and technology, my amendment would require the President to certify that both India and the United States are taking specific steps to conclude a verifiable fissile material cutoff treaty before the United States exports any nuclear equipment or technology to India. As to nuclear fuel, my amendment would require the President to certify that India has stopped producing fissile material for weapons, either unilaterally or as part of a multilateral agreement, again, before the United States exports nuclear material to India. The purpose of the amendment is not to kill the bill or the agreement with India but, as I see it, to strengthen that agreement. It would allow nuclear trade with India to proceed but in a way that will be consistent with our nuclear nonproliferation goals and our security interests. It imposes no unreasonable or unrealistic conditions on nuclear trade with India. It simply requires the President to determine that India has followed through on its stated agreement to work toward a fissile material cutoff treaty. Let me explain why I believe this amendment is necessary. In 1974, India tested a nuclear weapon it built using technology that we had provided to it for peaceful purposes. The title of the pending bill is United States-India Peaceful Atomic Energy Cooperation Act. So in 1974, India tested a nuclear weapon built using technology that we had given it for peaceful purposes. We responded then by strengthening our nuclear export laws in 1978 to ensure that that could not happen again. In 1980, we cut off nuclear cooperation with India, after India failed to meet the terms of the new law. The bill before us would make it possible to resume nuclear cooperation with India by exempting India from certain requirements that we added to our nuclear export laws in 1978. Proponents of the bill offer some strong arguments for going ahead. They say that we need to resume nuclear cooperation in order to cultivate closer ties with India. They say it is in our best interest to help India expand its civilian nuclear power program so that India might meet its growing energy needs with clean, environmentally friendly sources of power. They say it will help to bring India within the ``nonproliferation mainstream.'' I don't quarrel with any of those arguments or with the goal of the legislation. I agree that our past policies to pressure India on nuclear nonproliferation have not worked. Compared to several of its neighbors, India has a relatively good nonproliferation record, and by improving cooperation with India, we may be able to make India a useful ally in our efforts to halt the spread of nuclear weapons in the Middle East and in Asia. My quarrel is not with the goal of reopening nuclear cooperation with India but in the details of the bill and in the terms on which we propose to resume that cooperation. Under current law, in order for the United States to resume nuclear trade with India, our two nations must enter into an agreement for cooperation under section 123 of the Atomic Energy Act. Section 123 of the Atomic Energy Act requires the agreement to meet eight specific conditions. One of those conditions is that India must sign an agreement with the International Atomic Energy Agency to safeguard all nuclear material under its jurisdiction. India has consistently and steadfastly refused to agree to these so-called full-scope safeguards. Even if we were able to enter into an agreement for cooperation with India, the Nuclear Regulatory Commission would then have to license the export of specific nuclear material and facilities to India under the provisions of section 126 of that same Atomic Energy Act. And in order to license an export under those provisions, the Nuclear Regulatory Commission would first have to find that the statutory export licensing criteria of section 127 and 128 of the Atomic Energy Act are met. Among other things, section 128 requires the Commission to find that the full-scope IAEA safeguards will be maintained on all of India's nuclear activities. Once again, though, of course, India has refused to agree to those full-scope safeguards. Even if India were to accept full-scope safeguards, there is the third problem. Section 129 of the Atomic Energy Act prohibits the export of nuclear materials or equipment or sensitive nuclear technology to any nonnuclear weapons state that has detonated a nuclear explosive device, violated or abrogated IAEA safeguards, or engaged in activities directed toward making a nuclear explosive device. Even section 129-- and since India tested a nuclear explosive device in 1974 and five times since then in 1998, it has clearly run afoul of this provision. The Atomic Energy Act provides a way around all of these obstacles. It says that the President can waive the full-scope safeguard requirement and can enter into an agreement for cooperation, as he is here proposing to do, without full-scope safeguards if he determines that insistence on full-scope safeguards: Would be seriously prejudicial to the achievement of the United States nonproliferation objectives or otherwise jeopardize the common defense and security. Similarly, the act allows the President to authorize exports without full-scope safeguards, and in spite of India's detonation of a nuclear explosive device, if the President: Determines that cessation of such exports would be seriously prejudicial to the achievement of the United States nonproliferation objectives or otherwise jeopardize the common defense and security. President Carter used this authority in 1980 to export nuclear fuel to India. But the current administration has apparently concluded that President Bush cannot say that withholding nuclear exports from India would seriously prejudice our nonproliferation objectives or jeopardize our security. So instead of relying on the existing waiver authority that is in the law, the administration has requested and the bill provides--the bill before us would provide a specific statutory waiver for India. This is a waiver from the full-scope safeguard requirements of sections 126, 128, and the nuclear weapons prohibition contained in section 129. So instead of applying full-scope safeguards to all peaceful nuclear activities in India, the bill only asks that India give the International Atomic Energy Agency and the United States a: Credible plan to separate its civil nuclear facilities, materials, and programs from its military facilities, materials, and programs, and that it only apply the IAEA safeguards to those civilian activities. Let me just put up a chart up here to make the point as to what I think the bill contains. This is an important distinction for all of us to understand. India has been called upon in this agreement to separate what they are going to open to safeguards from the portion of their nuclear program they are going to keep separate from any kind of a full-scope safeguard. So there are 14 power reactors and one fuel reprocessing plant they have identified as being subject to safeguards under this agreement. That is the so-called civilian side of what they are doing. Then there is the nonsafeguarded area, and that, according to the Indians--and, of course, they are the ones who make this judgment and have under this agreement we are now considering, they have determined that there are eight power reactors for which they are not going to provide safeguards: their Fast Breeder program, which they are not going to provide safeguards for, and of course their entire military program, which is made up of two plutonium reprocessing plants, two uranium enrichment plants, and two heavy water plutonium production reactors. So it is clear that there is a substantial amount of their nuclear program that they have determined they will not open to inspection by the IAEA and will not open to these requirements which are contained in our own law. There are major problems with this approach. First is that the partial safeguards are not full-scope safeguards. India produced its separation plan in March. It offers to place some of its civilian power reactors, some of its fuel cycle facilities, some of its research facilities under safeguards, but it leaves still others of its civilian power reactors, its fuel cycle facilities, its research reactors, and its military plants unsafeguarded. Many of the facilities that raise the greatest proliferation concerns, including the Fast Breeder Reactor program and its uranium enrichment plants and its spent fuel processing facilities, are placed beyond the reach of any international safeguards. India will be free to use these facilities to produce fissile material for nuclear weapons without any international inspection or control. To make matters worse, by allowing India to buy civilian nuclear fuel on the international market, India will no longer have to choose between using its own limited uranium resources to supply its civilian power program or its weapons program. It will be able to buy nuclear fuel for its civilian power program and devote all its own uranium resources to its weapons program. The other major problem with this approach is that it abandons the fundamental tenet of our nuclear nonproliferation policy; namely, that nations are required to renounce nuclear weapons in order to get our assistance. This simple bargain has been the cornerstone of our nonproliferation policy since President Eisenhower announced the Atoms For Peace program over a half a century ago. The bill before us abandons that policy. It offers U.S. assistance to India without any restraint or limitation on its existing weapons program. Making such an exception for India will, in my view, permanently weaken our nonproliferation policy and our credibility on this issue. Already there are other nations, including Pakistan, that have asked for similar treatment. We are signaling that there are no general rules that apply when it comes to nonproliferation; whether we will ship nuclear technology or nuclear fuel or materials to a country depends upon the circumstances of each case. That is what this agreement signals to the rest of the world. It is difficult to see how we can insist that China and Russia strictly enforce full-scope safeguards in their dealings with Iran and North Korea if we are not going to enforce full-scope safeguards in our dealings with other countries--India, in this case. That is not to say we should bar the door to further nuclear cooperation with India or vote down the bill. I think we should open up nuclear trade with India, but we should do it in a way that is in keeping with our broad nuclear nonproliferation policy. I believe the bill before us, while seriously flawed as it now stands, can be fixed, can be salvaged, and that is the purpose of my amendment. The central issue, as I see it, is how to allow nuclear trade with India to proceed without aiding and abetting India's nuclear weapons program. India has dozens of nuclear weapons today. China has hundreds of nuclear weapons today. We do not want to see a race begin in Asia to see who can achieve the greatest capability in nuclear weapons. I believe the answer is to establish a link between our cooperation with India's civilian nuclear program and India stopping its production of nuclear materials for its weapons program. What I am recommending is nothing more than what our former colleague, Senator Sam Nunn, suggested in the article which is on each Member's desk entitled ``A Nuclear Pig In A Poke.'' It was an article in the Wall Street Journal on May 24, and I commend it to all of my colleagues for their consideration. Specifically, Senator Nunn in that article recommended that: Congress require a two-stage process. First, before any export of nuclear reactors, components, or related technology are provided to India, the President should have to certify that both India and the United States are taking specific steps to lead a serious and expedited international effort to conclude a verifiable fissile material cutoff treatment. Continuing with his statement: Second, before any exports of nuclear reactor fuel or its components are provided to India, thereby freeing India to use its limited stocks to expand its nuclear weapons program, the President would be required to certify that India has stopped producing fissile materials for weapons, either as part of a voluntary moratorium or multilateral agreement. That is precisely what the amendment does. I have attached a letter to the opinion piece Senator Nunn wrote, a letter from Senator Nunn to me where he states that clearly the amendment I am offering today is trying to implement the recommendations he made in his earlier opinion piece. So this amendment is based squarely on Senator Nunn's proposal. It simply requires first that before nuclear equipment and technology can be exported, the President first should determine that both India and the United States are taking specific steps to conclude a fissile material cutoff treaty; second, that before any nuclear materials may be exported to India, the President must determine that India has stopped producing fissile materials for weapons. Both the United States and India have already agreed to work toward a fissile materials cutoff treaty. The bill before us, in section 1055, already requires the President to determine that India is working with us toward such a treaty before he can use the waivers. All my amendment does is to require the President to determine and to report to Congress that specific steps are being taken before we export nuclear equipment and technology, and that India has, in fact, stopped producing weapons material before we export nuclear material to India. The amendment would simply implement Senator Nunn's recommendations. As I indicated, there is a letter pointing out that this amendment would, in fact, accomplish that objective that is attached to the opinion piece. Mr. President, I ask unanimous consent that Senator Nunn's May 24 op- ed in the Wall Street Journal and his letter to me dated September 28 of this year be printed in the Record at the conclusion of my remarks.

Mr. BINGAMAN. Mr. President, the amendment I am proposing here is not a killer amendment. I know the traditional approach in the Senate is that any time an amendment is offered, it is characterized by its opponents as a killer amendment, so you could make the argument that anything we might change in the pending legislation would absolutely kill our prospects of getting anything done. But this amendment is not a killer amendment. As Senator Nunn has stated in his op-ed piece, it is not a killer amendment: Unless you believe that India will continue its weapons- usable nuclear material production, and that U.S. and Indian pledges to work for a fissile material cutoff treaty are insincere, meaningless gestures. If those pledges are sincere and meaningful, as I trust they are, then this amendment simply says they should be fulfilled before exports begin. Adoption of my amendment will significantly strengthen the agreement with India. As Senator Nunn has said: This two-stage approach would significantly strengthen the deal in a way that improves the protection of our core security interests, while ultimately allowing trade to proceed. By establishing a linkage between exports of nuclear material and the cessation of Indian production of nuclear weapons material, this amendment will maintain the integrity of an important U.S. security objective; that is, preventing the growth and spread of nuclear weapons-usable material around the globe. Without this amendment I am offering, I fear the enactment of the bill pending before us would result in making the world a more dangerous place rather than a less dangerous place. This amendment will give us the advantages of the agreement but without the increased danger which all of us would like to see avoided.

Mr. BINGAMAN. Mr. President, I will briefly describe the Bingaman amendment. It is an amendment that puts into effect the recommendations Senator Nunn made in his op-ed piece in the Wall Street Journal in May of this year. It says that as to nuclear equipment and technology, before we can export or reexport to India nuclear equipment or technology, the President must first determine that both India and the United States are taking specific steps to conclude a fissile material cutoff treaty. Second, the amendment says that before any nuclear materials fuel can be exported to India, the President must determine that India has stopped producing fissile materials for weapons. This is a reasonable amendment. This does not kill the deal, as I would see it. This is something which India has stated a willingness to generally abide by. I think this is the least we can insist upon. I hope very much my colleagues will support this amendment.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I ask unanimous consent that William Johnson and Lona Stoll, who are fellows in Senator Kennedy's office, be granted floor privileges during the consideration of S. 3709.

Mr. BINGAMAN

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

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, the Nuclear Regulatory Commission was established on January 19, 1975, to regulate the Nation's civilian nuclear power industry. Since then, 25 men and three women have served as members of that commission. Members are appointed by the President by and with the advice and consent of the Senate for 5-year terms. On November 3, Commissioner Ed McGaffigan, Jr. became the longest serving member of the NRC. Of the 28 men and women who have served as commissioners since 1975, only 6 have been reappointed to a second term. Only one, Ed McGaffigan, has been reappointed to a third term. First appointed by President Clinton in 1996, Ed was reappointed to a second term in 2000, and reappointed by President Bush to a third term in 2005. The Senate rarely confirms NRC nominations before the date set by law for the term to begin, so none of the six commissioners who have served 2-year terms have served a full 10 years. Until this month, the longest serving NRC commissioner was Kenneth Rogers, who served a week short of 9 years and 11 months. On November 3 of this year, Ed McGaffigan broke that record. Length of time in office, of course, is not an end in itself. How long a commissioner serves is not as important as how well he or she serves the public interest while on the commission. By this measure, too, Ed McGaffigan stands out. Congress created the Nuclear Regulatory Commission not to promote nuclear power but to regulate nuclear power. The commission's job, in the words of the Atomic Energy Act, is to ``promote the common defense and security and to protect the health and safety of the public.'' Ed has taken those words to heart. Throughout his time on the commission, Ed has worked to improve the efficiency and the effectiveness of the NRC's regulatory programs. He has been instrumental in improving the reactor oversight process, focusing it more directly on risks and on activities important to plant safety and, at the same time, making it more transparent and open to the public. Following 9/11, he helped revamp the NRC's security and emergency preparedness programs to strengthen the Nation's nuclear facilities against the possibility of a terrorist attack. He has helped lay the groundwork for licensing the next generation of nuclear powerplants, new uranium enrichment plants, and the nuclear waste depository. He has also taken an active role in managing the generation change confronting the NRC by helping to hire and train a new generation of nuclear regulators to replace the current generation which is now retiring. He is a firm but fair regulator and an effective nuclear safety watchdog. I take special interest in Ed's achievements on the commission because Ed was one of the first people I hired when I came to the Senate in 1983. He was a legislative assistant. Later he was my legislative director and, finally, my senior policy adviser. He was my right hand on defense and technology policy, on personnel and acquisition reform, on nuclear nonproliferation and export control policy, all of that until he joined the NRC in 1996. Ed had already established himself as a brilliant physicist and a dedicated public servant before I hired him. He had earned degrees in physics from both Harvard and Cal Tech and in public policy from Harvard's Kennedy School of Government. He had served in the Foreign Service. He had been a science attache at our embassy in Moscow. He held simultaneous senior posts on both the staff of the National Security Council and the Office of Science and Technology Policy. He was, in short, an established expert on science and technology and energy and defense issues when he joined my staff. As a newly elected Senator, I was indeed fortunate to have his counsel at the start of my work here in the Senate. He is an invaluable ally, a tenacious adversary, and a fine human being. I am honored to have his friendship. It comes as no surprise to me that Ed has served the commission as long or as ably as he has. He has devoted his career to public service. He has served us well with his scientific skill, his expert knowledge, and his sound judgment. At his third confirmation hearing before the Committee on Environment and Public Works last year, Ed spoke movingly of his Irish immigrant father. He had encouraged Ed to ``dream big dreams'' and taught him, by acting on those dreams, to make them possible. In a lifetime of public service, Ed has dreamed big dreams and the Nation is better for it. I yield the floor and suggest the absence of a quorum.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I would like to enter into a colloquy with Senators Domenici, Boxer, and Feinstein concerning a provision in H.R. 233, the Northern California Wild Heritage Wilderness Act. Although I strongly supported the Senate companion measure, S. 128, which passed the Senate last year, I am concerned with some of the changes made by bill as passed by the House of Representatives. Of particular concern is section 10, dealing with commercial fishing permits in Redwood National and State Parks in California. The section directs the Secretary of the Interior to issue permits for authorized vehicle access for commercial surf fishing at designated beaches within both the National and State Parks. The section provides that the number of permits shall be limited to the number of valid permits that are held on the date of enactment of this Act, and that the permits ``so issued shall be perpetual and subject to the same conditions as the permits held on the date of enactment of this Act.'' I understand from the National Park Service and the bill sponsors that presently 15 permits are issued for commercial surf fishing within the park. I was concerned that the language stating that the permits shall be perpetual might be construed as creating a right vesting in the permit holder, which would be contrary to the way permits are issued throughout the National Park System. However, I understand that the intent of this language is simply to ensure that the National Park Service not reduce the number of permits issued below the current level of valid permits, assuming there is sufficient demand for the remaining permits. Furthermore, I understand that there is no intent for the requirements of section 10 to be construed as an implied waiver of applicable laws, including the National Park Service Organic Act and the Endangered Species Act, but rather a directive to the Park Service to discontinue its plan to completely phase out these permits. I would like to ask Senator Domenici, the chairman of the Committee on Energy and Natural Resources, and Senators Boxer and Feinstein, the Senate sponsors, whether they agree with me that it is their intent that the language in section 10 does not create a property right and whether they also agree that the sole purpose of the language is to limit the number of permits to the number of valid permits in existence as of the date of enactment of H.R. 233.

Mr. BINGAMAN. The language in section 10 requires the Secretary of the Interior to issue permits allowing for authorized vehicle access to designated beaches, including Gold Bluff Beach, within Prairie Creek Redwoods State Park, which is located within the broader national park boundary. This provision is unusual in that, on its face, it appears to require the Secretary to authorize access to a beach that is within a State Park and managed by the California Department of Parks and Recreation. However, I understand that nothing in this section is intended to override the responsibilities of the State of California and its management of state park. Is that the understanding of the chairman and bill sponsors as well?

Mr. BINGAMAN. I thank my colleagues for helping to clarify this issue. I ask unanimous consent that a letter from Congressman Thompson, the sponsor of H.R. 233, be printed in the Record. His letter indicates his agreement with our colloquy. Based on the common understanding of the purpose and intent of section 10, I will support passage of the bill.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I ask unanimous consent I be allowed the first 5 minutes and Senator Salazar from Colorado take the second 5 minutes.

Mr. BINGAMAN. Mr. President, I rise today to speak about H.R. 6061, the Secure Fence Act, and to express my disappointment that the majority leader has decided to prevent Senators from offering relevant amendments. I have an amendment, which is germane postcloture, which simply provides the Department of Homeland Security with discretion regarding the use and placement of fencing along our border. As a Senator who represents a border State, I understand the frustration communities are facing due to the inability of the Federal Government to secure our Nation's borders. Illegal immigration is a serious problem and we do need to do a better job of addressing this issue. The Senate has passed a comprehensive immigration bill aimed at improving security along our borders and at reforming our immigration laws. Although this bill isn't perfect, it is a step in the right direction. I was very disappointed that the leadership in the House refused to appoint conferees, and instead decided to hold hearings around the country to stir up discontent rather than to seek solutions. The Senate has passed a bipartisan bill. The House has passed a bill. We should have convened a conference committee and tried to work out the differences between these bills. The failure to at least make a good-faith effort at coming to an agreement is unacceptable. With regard to the specifics of the Secure Fence Act, I do believe that there are locations along our border where fencing makes sense. For example, I support the $1.2 billion that is in the 2007 Homeland Security Appropriations bill for fencing, infrastructure, and technology, and I voted to provide $1.8 billion for the Army National Guard to build fencing and vehicle barriers along the southwest border as part of the Defense Appropriations bill. In addition, over the last several years I have secured millions of dollars of funding for fencing and vehicle barriers specifically for New Mexico. However, we need to be smart about security. Walls may make good sound bites in political ads, but the reality is that the individuals charged with securing our borders have consistently stated that they are only part of the solution and that there are better and more cost- effective ways to provide for border security. As Ralph Basham, the Commissioner of Customs and Border Protection, stated earlier this year in a response to a question about the proposal to build 700 miles of double-layered fencing: ``It doesn't make sense, it's not practical.'' He went on to say that what we need is an appropriate mix of technology, infrastructure, and personnel. Secretary Chertoff has voiced similar concerns, and has consistently maintained that securing our borders will require a much more comprehensive approach than simply building fences. Unfortunately, the bill, as currently drafted, does not provide the Department of Homeland Security with the discretion they need to determine the most appropriate means to secure the border. It ties their hands with regard to the use and placement of fencing. Under current law, the Department of Homeland Security already has the legal authority to build the fences that it needs, and I do not think we should be mandating over 700 miles of fencing in specific locations at a cost of millions of dollars per mile unless we know that this is something that DHS believes it is the best way to enhance security. This bill micromanages and mandates specifically where DHS must build fencing. For example, with regard to New Mexico, the bill states that a fence must be built ``extending from 5 miles west of the Columbus, NM, port of entry to 10 miles east of El Paso, TX.'' There hasn't been any local input regarding this specific location and I haven't received any indication from DHS that they believe that this is the best place to build a fence. To the contrary, in discussions during one of the southwest New Mexico Border Security Task Force meetings, the point was raised by local security officials that the location of the proposed double- layered fencing in the bill is in the wrong place. The bill also mandates fencing in some areas where we just spent millions of dollars per mile to build vehicle barriers. According to DHS, it costs approximately $4.4 million for a single layer of fencing per mile. The bill we are debating today mandates double-layer fencing, which adds up to about $6.6 billion for the 730 miles of fencing required under the bill. If we are going to spend billions of dollars to place a fence along over one-third of our southern border, we should at least ensure that it is in the right location and that DHS can make necessary adjustments in the interest of securing our borders. To this end, I hoped to offer an amendment that would ensure that the Secretary of Homeland Security has the ability to modify the placement and use of the fencing mandated under this bill, if the Secretary determines that such use or placement of the fencing is not the best way to achieve and maintain operational control over the border. I strongly believe that this is a reasonable amendment that ensures that DHS has the flexibility it needs to alter this proposal if it doesn't advance our overall security strategy. Let me be clear, I believe we should do what it takes to secure our borders. I have consistently worked to secure increased funding for vehicle barriers, surveillance equipment, and additional Border Patrol agents. But I also believe we should do it in the most effective way, both from a security standpoint and in terms of costs. I also intended to offer an amendment that would have provided border law enforcement agencies with much needed relief in addressing border- related criminal activities. Specifically, the amendment would have authorized $50 million a year in funding to help departments purchase new equipment and hire additional officers. This legislation has wide bipartisan support and has passed the Senate on two occasions. However, most recently, the majority party removed this bill from the 2007 Homeland Security appropriations bill. If the majority party wants to address security issues, I stand ready to do so. Unfortunately, it appears that they are more concerned with political grandstanding than crafting substantive border security policies. I strongly believe that Senators should have an opportunity to offer amendments and improve the bill. Regrettably, the majority leader has used technical procedural rules to prevent Senators from doing so. I cannot vote for this legislation without being afforded the opportunity to offer my amendments and fix this flawed bill. I ask unanimous consent that I be allowed to offer this amendment prior to final passage on this bill.

Mr. BINGAMAN. Mr. President, let me conclude by saying that I think it is unfortunate that we cannot make a commonsense change in this bill to make this a workable piece of legislation. It could pass this Senate with 100 votes if, in fact, this amendment were adopted--at least as far as I am concerned it likely would. The fear that the purpose of this bill is to get a bill to the President that has the word ``fence'' in the title so that the people can go out and campaign on it in the next 4 or 6 weeks, that is not good government. That is not a good result, policywise, for this country. I, unfortunately, will be compelled to vote against the bill. I yield the floor.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I am pleased to be co-sponsoring a bill which Senator Domenici and I are introducing today, that would authorize the Bureau of Reclamation to help communities in eastern New Mexico develop the Eastern New Mexico Rural Water System (ENMRWS). The water supply and long-term security to be made available by this project is absolutely critical to the region's future. I look forward to working with my colleagues here in the Senate to help make this project a reality. This bill is very similar to a bill I introduced in June 2004 which was the subject of a hearing before the Water & Power Subcommittee of the Energy & Natural Resources Committee. At that hearing, the Bureau of Reclamation raised a number of issues that needed to be addressed by the Project sponsors prior to securing Reclamation's support. I'm happy to say that the sponsors have worked diligently to address those issues, and it is time, once again, to move this project towards authorization. I realize that there is little time left in the 109th Congress. Nonetheless, introduction of this bill now is important to ensure an ongoing dialogue with the Bureau of Reclamation and maintain progress as we head towards the 110th Congress. The source of water for the ENMRWS is Ute Reservoir, a facility constructed by the State of New Mexico in the early 1960s. In 1966, Congress authorized Reclamation to study the feasibility of a project that would utilize Ute Reservoir to supply water to communities in eastern New Mexico (P.L. 89-561). Numerous studies were subsequently completed, but it was not until the late 1990s that several communities, concerned about their reliance on declining and degraded groundwater supplies in the area, began to plan seriously for the development of a regional water system that would make use of the renewable supply available from Ute Reservoir. As part of that process, the Eastern New Mexico Rural Water Authority was formed to carry out the development of the ENMRWS. The Authority consists of 6 communities and 2 counties in eastern New Mexico, and has been very effective in securing local funds and State funding to support the studies and planning necessary to move the project forward. To date, the State of New Mexico has provided over $4 million to help develop the ENMRWS. This is a very important bill to the citizens of New Mexico. It has the broad support of the communities in the region as well as financial support from the State of New Mexico. There is no question that completion of the ENMRWS will provide communities in Curry and Roosevelt counties with a long-term renewable source of water that is needed to sustain current economic activity and support future growth and development in the region. I hope my colleagues will support this legislation, thereby helping to address pressing water needs in the rural West.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I am pleased to be co-sponsoring a bill which Senator Domenici and I are introducing today, that would authorize the Bureau of Reclamation to help communities in eastern New Mexico develop the Eastern New Mexico Rural Water System (ENMRWS). The water supply and long-term security to be made available by this project is absolutely critical to the region's future. I look forward to working with my colleagues here in the Senate to help make this project a reality. This bill is very similar to a bill I introduced in June 2004 which was the subject of a hearing before the Water & Power Subcommittee of the Energy & Natural Resources Committee. At that hearing, the Bureau of Reclamation raised a number of issues that needed to be addressed by the Project sponsors prior to securing Reclamation's support. I'm happy to say that the sponsors have worked diligently to address those issues, and it is time, once again, to move this project towards authorization. I realize that there is little time left in the 109th Congress. Nonetheless, introduction of this bill now is important to ensure an ongoing dialogue with the Bureau of Reclamation and maintain progress as we head towards the 110th Congress. The source of water for the ENMRWS is Ute Reservoir, a facility constructed by the State of New Mexico in the early 1960s. In 1966, Congress authorized Reclamation to study the feasibility of a project that would utilize Ute Reservoir to supply water to communities in eastern New Mexico (P.L. 89-561). Numerous studies were subsequently completed, but it was not until the late 1990s that several communities, concerned about their reliance on declining and degraded groundwater supplies in the area, began to plan seriously for the development of a regional water system that would make use of the renewable supply available from Ute Reservoir. As part of that process, the Eastern New Mexico Rural Water Authority was formed to carry out the development of the ENMRWS. The Authority consists of 6 communities and 2 counties in eastern New Mexico, and has been very effective in securing local funds and State funding to support the studies and planning necessary to move the project forward. To date, the State of New Mexico has provided over $4 million to help develop the ENMRWS. This is a very important bill to the citizens of New Mexico. It has the broad support of the communities in the region as well as financial support from the State of New Mexico. There is no question that completion of the ENMRWS will provide communities in Curry and Roosevelt counties with a long-term renewable source of water that is needed to sustain current economic activity and support future growth and development in the region. I hope my colleagues will support this legislation, thereby helping to address pressing water needs in the rural West.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, the legislation I am introducing today, entitled the ``Community Health Workers Act of 2006,'' would improve access to health education and outreach services to women in medically underserved areas, including the U.S. border region along New Mexico. Lack of access to adequate health care and health education is a significant problem on the southern New Mexico border. While the access problem is in part due to a lack of insurance, it is also attributable to non-financial barriers to access. These barriers include a shortage of physicians and other health professionals, and hospitals; inadequate transportation; a shortage of bilingual health information and health providers; and culturally insensitive systems of care. This legislation would help to address the issue of access by providing $15 million per year for a three year period in grants to State, local, and tribal organizations, including community health centers and public health departments, for the purpose of hiring community health workers to provide health education, outreach, and referrals to women and families who otherwise would have little or no contact with health care services. Recognizing factors such as poverty and language and cultural differences that often serve as barriers to health care access in medically underserved populations, community health workers are in a unique position to improve health outcomes and quality of care for groups that have traditionally lacked access to adequate services. They often serve as ``community specialists'' and are members of the communities in which they work. As such they can effectively serve hard-to-reach populations. A shining example of how community health workers serve their communities, a group of so-called ``promotoras'' in Dona Ana County were quickly mobilized during a recent flood emergency in rural New Mexico. These community health workers assisted in the disaster recovery efforts by partnering with FEMA to find, inform and register flood victims for Federal disaster assistance. Their personal networks and knowledge of the local culture, language, needs, assets, and barriers greatly enhanced FEMA's community outreach efforts. The promotoras of Dona Ana County demonstrate the important role community health workers could play in communities across the nation, including increasing the effectiveness of new initiatives in homeland security and emergency preparedness, and in implementing risk communication strategies. The positive benefits of the community health worker model also have been documented in research studies. Research has shown that community health workers have been effective in increasing the utilization of health preventive services such as cancer screenings and medical follow up for elevated blood pressure and improving enrollment in publicly funded health insurance programs. In the case of uninsured children, a study by Dr. Glenn Flores, ``Community-Based Case Management in Insuring Uninsured Latino Children,'' published in the December 2005 issue of Pediatrics found that uninsured children who received community-based case management were eight times more likely to obtain health insurance coverage than other children involved in the study because case workers were employed to address typical barriers to access, including insufficient knowledge about application processes and eligibility criteria, language barriers and family mobility issues, among others. This study confirms that community health workers could be highly effective in reducing the numbers of uninsured children, especially those who are at greatest risk for being uninsured. Preliminary investigation of a community health workers project in New Mexico similarly suggests that community health workers could be useful in improving enrollment in Medicaid and the Children's Health Insurance Program, SCHIP. According to a 2003 Institute of Medicine, IOM, report entitled, ``Unequal Treatment: Confronting Racial and Ethnic Disparities in Healthcare,'' community health workers offer promise as a community- based resource to increase racial and ethnic minorities' access to health care and to serve as a liaison between healthcare providers and the communities they serve.'' Although the community health worker model is valued in the New Mexico border region as well as other parts of the country that encounter challenges of meeting the health care needs of medically underserved populations, these programs often have difficulty securing adequate financial resources to maintain and expand upon their services. As a result, many of these programs are significantly limited in their ability to meet the ongoing and emerging health demands of their communities. The IOM report also noted that ``programs to support the use of community health workers . . . especially among medically underserved and racial and ethnic minority populations, should be expanded, evaluated, and replicated.'' I am introducing this legislation to increase resources for a model that has shown significant promise for increasing access to quality health care and health education for families in medically underserved communities. I ask unanimous consent that the text of the bill and Dr. Flores' study on community-based case management be printed in the Record.

Mr. BINGAMAN

Mr. BINGAMAN. Most troubling of all, with this legislation Congress is giving its consent to the executive branch to continue to unilaterally designate individuals as enemy combatants and imprison them indefinitely. We are saying that the President can pick up whoever he wants, designate them an enemy combatant and hold them without substantive judicial review. I know that many of my colleagues have worked to ensure that the military commission procedures comply with our international legal obligations under the Geneva Conventions and that our Nation's soldiers are not put at risk by diminished standards. I support these efforts, and believe that the trial of these suspected terrorists is long overdue. However, passing this flawed bill is not the solution. Mr. President, this debate is about who we are as a people and whether we are going to continue to adhere to the rule of law and basic human rights. It is about our fundamental values as a people. The U.S. Constitution was crafted by men who were keenly aware of the potential abuse that could result from providing the executive branch with unrestrained powers with respect to individuals' liberties. The Constitution was crafted to be relevant in the good times, as well as in the times when our Nation faces domestic or foreign threats. It deeply concerns me that with this bill we are sanctioning the indefinite imprisonment of people without charges. This is wrong. Should this legislation pass as currently drafted, history will not look kindly on this mistaken endeavor. Frankly, the notion that Congress is willing to provide the President with the authority to indefinitely imprison people without ever having to charge them is quite astonishing. What is more amazing is that the Senate appears prepared to do so after one brief hearing in the Senate Judiciary Committee on the issue and with little substantive debate on the Senate floor. We must also remember that in establishing these military commissions we are not solving the Guantanamo problem. This legislation will result in a flurry of legal challenges. The administration's handling of detainee issues has brought us Guantanamo, Abu Griab, and a series of Supreme Court decisions rejecting the administration's legal positions. Let us not complicate the problem by enacting the provisions. Mr. President, I yield the floor. Exhibit 1 September 12, 2006. Senator John Warner, Chairman, U.S. Senate Committee on Armed Services, U.S. Senate, Washington, DC. Senator Carl Levin, Ranking Member, U.S. Senate Committee on Armed Services, U.S. Senate, Washington, DC. We find it necessary yet again to communicate with you about issues arising out of our policies concerning detainees held at Guantanamo Bay. It would appear that each time the U.S. Supreme Court speaks, efforts are taken to reverse by legislation the decision of the Court. We refer, of course, to the Supreme Court's Rasul and Hamdan decisions and to the provision in the Administration's proposed Military Commissions Act of 2006 that would strip the federal courts of jurisdiction over even the pending habeas cases that have been brought by the detainees at Guantanamo to challenge the basis for their detention. We urge you to reject any such habeas-stripping provision. As we have argued and agreed since 9/11, it is necessary for Congress to enact legislation to create military commissions that recognize both the basic notions of due process and the need for specialized rules and procedures to deal with the new paradigm we call the war on terror. This effort must cover those already charged with violating the laws of war and those newly transferred to Guantanamo Bay. But the military commissions we are now fashioning will have no application to the vast majority of the detainees who have never been charged, and most likely never will be charged. These detainees will not go before any commissions, but will continue to be held as ``enemy combatants.'' It is critical to these detainees, who have not been charged with any crime, that Congress not strip the courts of jurisdiction to hear their pending habeas cases. The habeas cases are the only avenue open for them to challenge the bases for their detention--potentially life imprisonment--as ``enemy combatants.'' We strongly agree with those who have argued that we must arrive at a position worthy of American values, i.e., that we will not allow military commissions to rely on secret evidence, hearsay, and evidence obtained by torture. But it would be utterly inconsistent, and unworthy of American values, to include language in the draft bill that would, at the same time, strip the courts of habeas jurisdiction and allow detainees to be held, potentially for life, based on CSRT determinations that relied on just such evidence. The effect would be to give greater protections to the likes of Khalid Sheikh Mohammed than to the vast majority of the Guantanamo detainees, who claim that they had nothing to do with al Qaeda or the Taliban. We are on a course that should have been plotted and navigated years ago, and we might be close to consensus. We ask that, in the closing moments of your consideration of this vital bill, you restore the faith of those who long have been a voice for simple commitment to our longstanding basic principles, to our integrity as a nation, and to the rule of law. We urge you to oppose any further erosion of the proper authority of our courts and to reject any provision that would strip the courts of habeas jurisdiction. As Alexander Hamilton and James Madison emphasized in the Federalist Papers, the writ of habeas corpus embodies principles fundamental to our nation. It is the essence of the rule of law, ensuring that neither king nor executive may deprive a person of liberty without some independent review to ensure that the detention has a reasonable basis in law and fact. That right must be preserved. Fair hearings do not jeopardize our security. They are what our country stands for. Sincerely, John D. Hutson, Rear Admiral, JAGC, USN (Ret.). Donald J. Guter, Rear Admiral, JAGC, USN (Ret.). David M. Brahms, Brigadier General, USMC (Ret.).

Mr. BINGAMAN. Mr. President, I thank my colleague from Michigan for yielding me time and I also thank him for bringing forth this amendment. I strongly support his proposal, essentially, to take the legislation, the agreement that was worked out in the Armed Services Committee by our colleagues, and to substitute that for what is now before us. This overall military commissions bill has three general areas of focus: first, the rules pertaining to the interrogation of prisoners; second, the procedures we should have in place for the trial of individuals who are brought before military commissions; and, third, the rights of those prisoners who under this bill will continue to be held without being charged at Guantanamo or elsewhere in the world, or even in this country. Let me take a moment to briefly comment on these first two issues before I discuss the third issue, which I believe has not received the attention that it deserves. With regard to interrogation techniques, I have been deeply troubled by the administration's insistence on weakening the prohibition on the use of torture and cruel and inhumane treatment. I strongly believe that we can give our military and intelligence officers the tools they need to protect the American public without abandoning our basic decency. The use of torture and other abusive techniques are not only morally repugnant, but they are ineffective and do great damage to our Nation's credibility with respect to our commitment to human rights. They also put our soldiers at risk of being subjected to similar treatment. Rather than redefining the Geneva Conventions to permit harsh interrogation techniques by the CIA, as the administration had proposed, the Republican compromise legislation retroactively revises the War Crimes Act so that criminal liability does not result from techniques that the United States may have employed, such as simulated drowning, exposure to hypothermia, and prolonged sleep deprivation. Under the Detainee Treatment Act, which we passed last year to reaffirm the prohibition on torture, the military is clearly prohibited from engaging in torture or cruel, degrading or inhumane treatment, as specified in the recently issued Army Field Manual. However, under the bill we are debating today, the CIA would be allowed to continue to subject detainees to harsh interrogation techniques without fear of criminal liability. As the President has stated, the ``program'' can continue. In essence, the legislation defines prisoner abuse and criminal liability in such a way that the administration is able to argue that it is complying with international and domestic legal restraints while at the same time continue to use techniques that amount to abuse under international treaty obligations. There is also a fundamental lack of clarity with respect to what conduct this legislation forbids. For example, when asked if water- boarding is permitted under this bill, Senator McCain has said that it would not be allowed. But if one asks the administration, it will only say CIA interrogation techniques are classified and that the bill allows the CIA to continue to use so-called alternative interrogation techniques--techniques which our military is prohibited from employing. I think there is little doubt that these disturbing practices continue. This type of legal ambiguity has not served us well with respect to the treatment of detainees, and we should be taking this opportunity to provide greater legal clarity, not further muddying the water. I am also concerned about the rules and procedures of the newly constituted military commissions. The bill permits statements allegedly derived through coercive means to be used if the statements are probative and were obtained prior to December 2005, which coincides with the enactment of the Detainee Treatment Act. Statements obtained after the enactment of the Detainee Treatment Act cannot be admitted as evidence if they have been derived through interrogation techniques that amount to cruel, unusual, or inhumane treatment as prohibited by the fifth, eighth, and fourteenth amendments to the U.S. Constitution. Essentially we are saying that you can't admit statements derived from coercive methods except for those statements derived when we were using coercive methods. Having these two different standards may be beneficial from the prosecution's perspective in terms of increasing the likelihood that statements will be found admissible, but it is not exactly the clarity we should have with regard to standards of justice. There are also a variety of problems regarding the rules on hearsay, the appeals process, the definition and retroactive application of crimes, and the admission of secret evidence, among others. Overall, the rules and procedures contained in the proposed legislation fall short of the basic fairness required in any criminal trial. I wish to talk about the provisions that relate to habeas corpus. One of the most disturbing provisions in the underlying legislation pertains to the disposition of those prisoners who will never be charged before a military commission or any court but who, instead, will be held indefinitely--or at least that option exists for our executive and our military to hold those individuals indefinitely in confinement. The current bill endorses the administration's practice of designating people, including U.S. citizens, I would point out, as ``enemy combatants.'' It eliminates the ability of aliens--non-U.S. citizens--to bring habeas claims or other claims related to their detention or their treatment or their conditions of confinement. Whereas the previous attempt to strip the Federal courts of jurisdiction over these individuals under the Detainee Treatment Act applied only to individuals held by the Department of Defense at Guantanamo, this current legislation applies to any alien who is detained by the United States anywhere in the world, including those who are held within the United States. The current language also makes it clear that the elimination of judicial review is retroactive. It applies to all cases involving the detention of individuals since September 11, 2001. Various of my colleagues have already talked about the right of habeas corpus and its importance in our system of justice. Simply stated, the ability to file a writ of habeas corpus is the right of a person to challenge the legal basis for their detention. Habeas, which is also known as the Great Writ, is one of the most fundamental protections against arbitrary governmental power. This right dates back to the Magna Carta of 1215, and is enshrined in Article I, section 9, clause 2 of the U.S. Constitution. Filing a habeas petition doesn't entitle a person to a full-blown trial, but it does provide a means to ask whether the person's confinement is in compliance with the law. It doesn't confer any additional constitutional rights; it simply allows a person to ask whether their depravition of liberty is consistent with the Constitution. One of the principal arguments proponents for removing this protection have put forward in the past was that maintaining habeas rights leads to unnecessary and frivolous litigation. The fact is that these arguments misconstrue the nature of habeas petitions. The reality is, in my view, that court-stripping provisions will not, in fact, lead to less litigation. For example, if this measure is passed, the courts will be forced to consider whether this provision amounts to a suspension of the writ of habeas corpus. If it is determined that it does suspend the writ of habeas corpus, the courts will determine whether the suspension clause of the Constitution has been satisfied. Our Constitution is very clear. It says Congress is afforded the authority to suspend habeas in cases of rebellion and invasion. At a time when our courts are open and functioning, I think a person would be hard-pressed to argue that public safety requires removing judicial review. One would be hard-pressed to argue that we are in a period of rebellion, or that we have suffered an invasion, as that phrase was intended by our Founding Fathers. The one other issue, of course, that I think is important is that the Constitution gives Congress the power to suspend the writ. Here we are not just suspending the writ; this proposal is to abolish the writ, to permanently eliminate this right, this protection for this group of individuals. In my view, it makes more sense to simply allow the courts to hear the cases that are pending in the courts and determine the legality of the detention that is occurring. It makes more sense to do that than it does to litigate over whether those individuals who are incarcerated, in fact, have a right to have their cases heard. If what the administration says is true and the indefinite imprisonment of individuals at Guantanamo or elsewhere is legal, then why does the administration continue to fight so hard to eliminate the ability of the courts to hear those cases? If these individuals are in fact ``the worst of the worst,'' which we have been assured, then why is it so difficult to provide some factual basis for continuing to detain them? The likelihood is that some, and maybe many, of these prisoners have very little to do with terrorism. According to a 2002 CIA report, most of the Guantanamo prisoners ``did not belong there.'' According to a Wall Street Journal article earlier this year, an estimated 70 percent of the individuals held at Guantanamo were wrongfully imprisoned. BG Jay Hood, the former commander at Guantanamo, was quoted as saying, ``Sometimes, we just didn't get the right folks.'' I don't believe that all of those being held at Guantanamo are innocent. Clearly, they are not. Those who are a threat need to be held accountable for their actions, need to be tried before properly constituted military commissions or criminal courts. Those who are not a threat need to be released and returned to their country of origin. The point is that judicial review allows us to sort the good from the bad and focus our efforts on those who in fact do pose a threat to our country. It is during times like these that our Founding Fathers envisioned habeas corpus rights needed to be preserved. If judicial review is not required as a matter of law, it makes sense from a policy standpoint to preserve these essential rights in the law. Having a court determine whether a person's detention by the executive branch is consistent with our Constitution and laws does not inhibit this Nation's ability to fight terrorism. To the contrary, ensuring that we are holding the right people not only allows us to focus on those who truly pose a threat, it also will help to reduce criticism in the world community that the United States is not complying with its own laws and Constitution. In a letter I received from over 30 former diplomats, they stated: To proclaim democratic government to the rest of the world as the supreme form of government at the very time that we eliminate the most important avenue of relief from arbitrary governmental detention will not serve our interest in the larger world. I agree with that statement. It is also important to note that should the current habeas language be removed from the bill, Guantanamo prisoners would still be prohibited from bringing habeas claims in the future under current law. In the Rasul decision, the Supreme Court held that U.S. courts have jurisdiction to hear habeas claims of Guantanamo prisoners. Congress subsequently passed the Detainee Treatment Act, which contained the Graham-Levin compromise language regarding the elimination of habeas. Graham argued that the language was retroactive and barred all pending cases, and Levin argued that the language only eliminated cases initiated after the enactment of the act. In assessing whether the Supreme Court had jurisdiction to hear the Hamdan case, the Court found that because congressional intent was unclear it would be inappropriate to view the statute as retroactive. As such, if the status quo is maintained, we would still have language on the books that prohibits any future habeas claims from being filed on behalf of Guantanamo prisoners. Although I disagree with the law as it currently stands, Senators should know that if the language in the existing bill is removed, this Congress has already drastically limited judicial review. It is important to look at the big picture. As general matter, this bill puts in place procedures to try suspected terrorist by military commissions whereby the only ones who will have an opportunity to prove their innocence will be the high-level prisoners. The suspected low- level prisoners will continue to linger in indefinite imprisonment without charges. Before the previous military commissions were found unconstitutional, the administration charged approximately 10 detainees with crimes. None were ever tried. The President has indicated that he now intends to charge the 14 CIA prisoners, or at least some of them, under the newly constituted military commissions. Therefore, the reality is that of the approximately 450 prisoners now at Guantanamo only about 25 will likely receive trials. Under the compromise legislation, the remaining prisoners, many of whom have been imprisoned for more than 4 years, will not be held accountable nor will they be able to prove their innocence--instead, they will be denied the right to challenge the legality of their continued confinement. As Rear Admiral John Hutson, Rear Admiral Guter, and Brigadier General Brahms, pointed out in a letter to the Senate Armed Services Committee, the effect of this legislation would be to give greater protections to the likes of Khalid Sheikh Mohammed than to the vast majority of the Guantanamo detainees, who claim that they have nothing to do with al-Qaida or the Taliban. Mr. President I ask unanimous consent that this letter be printed in the Record following my remarks.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I rise today with my colleagues, Senator Smith and Senator Kerry, to introduce this important legislation that will ensure that more working Americans have a retirement account. This legislation is the result of the collaborative work done by David John of the Heritage Foundation and Mark Iwry of the Retirement Security Project to provide a simple, cost-effective way to increase retirement security for our Nation's workers who currently do not have a retirement plan. The Automatic IRA Act of 2006 will require employers who do not currently sponsor a retirement plan to offer their workers the opportunity to have part of their paycheck to be sent directly to an IRA. This will not only help millions of Americans begin saving for their retirement but will also provide subtle encouragement to employers to sponsor a qualified retirement account such as a SIMPLE or a 401(k). In 2004, it was estimated that as many as 71 million Americans work for an employer who does not offer them any kind of retirement plan-- almost half of all of our country's workers. Without an employer- sponsored retirement plan, many of these workers will not be saving adequately for their retirement. The first steps to addressing this growing inequity are to ensure that all workers have easy access to a retirement account and the ability to have part of their wages go directly from their paycheck into this account. Both of these features have been proven to encourage retirement savings and are imperative if we are going to address our national retirement savings rate. Under this legislation, all employers with more than 10 employees who do not sponsor a qualified retirement or pension plan must offer its employees the ability to have wages remitted directly to an automatic IRA through payroll deduction. These employers will not be required to make any contributions to these accounts and will receive a tax credit to offset the administrative costs of remitting part of the employee's wages to the IRA. It is entirely up to the employer as to what IRA options the employees would have. For instance, the employer could decide to remit the funds to the IRA of the employee's choice or the employer could decide to remit the money to the financial institution of his or her choice. The employer will also have a new option--the ability to remit the money to a new, simplified type of IRA, the automatic IRA. A board, similar to the Federal Government's existing Thrift Savings Plan Board, would create standards for these new accounts that must be followed by participating financial service companies. This board will also be responsible for educating the public about the importance of having a qualified retirement account as part of their duties. Mr. President, it is going to take a bipartisan approach to address our Nation's retirement savings problems. I again want to applaud the efforts made by Mr. John of the Heritage Foundation and Mr. Iwry from the Retirement Security Project in advancing this proposal. It is now up to all of us in this Chamber to follow their example and pass this legislation. I ask unanimous consent that the material be printed in the Record.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I rise today with my colleagues, Senator Smith and Senator Kerry, to introduce this important legislation that will ensure that more working Americans have a retirement account. This legislation is the result of the collaborative work done by David John of the Heritage Foundation and Mark Iwry of the Retirement Security Project to provide a simple, cost-effective way to increase retirement security for our Nation's workers who currently do not have a retirement plan. The Automatic IRA Act of 2006 will require employers who do not currently sponsor a retirement plan to offer their workers the opportunity to have part of their paycheck to be sent directly to an IRA. This will not only help millions of Americans begin saving for their retirement but will also provide subtle encouragement to employers to sponsor a qualified retirement account such as a SIMPLE or a 401(k). In 2004, it was estimated that as many as 71 million Americans work for an employer who does not offer them any kind of retirement plan-- almost half of all of our country's workers. Without an employer- sponsored retirement plan, many of these workers will not be saving adequately for their retirement. The first steps to addressing this growing inequity are to ensure that all workers have easy access to a retirement account and the ability to have part of their wages go directly from their paycheck into this account. Both of these features have been proven to encourage retirement savings and are imperative if we are going to address our national retirement savings rate. Under this legislation, all employers with more than 10 employees who do not sponsor a qualified retirement or pension plan must offer its employees the ability to have wages remitted directly to an automatic IRA through payroll deduction. These employers will not be required to make any contributions to these accounts and will receive a tax credit to offset the administrative costs of remitting part of the employee's wages to the IRA. It is entirely up to the employer as to what IRA options the employees would have. For instance, the employer could decide to remit the funds to the IRA of the employee's choice or the employer could decide to remit the money to the financial institution of his or her choice. The employer will also have a new option--the ability to remit the money to a new, simplified type of IRA, the automatic IRA. A board, similar to the Federal Government's existing Thrift Savings Plan Board, would create standards for these new accounts that must be followed by participating financial service companies. This board will also be responsible for educating the public about the importance of having a qualified retirement account as part of their duties. Mr. President, it is going to take a bipartisan approach to address our Nation's retirement savings problems. I again want to applaud the efforts made by Mr. John of the Heritage Foundation and Mr. Iwry from the Retirement Security Project in advancing this proposal. It is now up to all of us in this Chamber to follow their example and pass this legislation. I ask unanimous consent that the material be printed in the Record.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I want to speak on three issues this morning. First, I will talk about two amendments I have filed to the Secure Fence Act which is the legislation the Senate is debating once we get through morning business. I will talk about the merits of those amendments and the reasons I believe Senators should support those amendments, that we should be allowed an opportunity to offer those amendments. There is some question as to whether we will be allowed that opportunity. After that, I will say a few words about health care and health care issues in this 109th Congress. First, as to the Secure Fence Act, H.R. 6061, I represent, as all of my colleagues know, a border State. I understand the frustration communities are facing due to the inability of the Federal Government to secure our Nation's borders. Illegal immigration is a serious problem, and we do need to do a much better job in addressing this problem. The Senate has passed a comprehensive immigration bill. It is not a perfect bill by any means, but it is aimed at improving security along our borders and at also reforming our immigration laws. I believe that the bill passed through the Senate was a step in the right direction. I was disappointed that the leadership of the House of Representatives refused to appoint conferees to meet with Senate conferees and instead decided to hold hearings around the country to concentrate on differences of opinion and to stir up discontent rather than to seek some common solutions to our substantial immigration problems. The Senate has passed a bipartisan bill. The House passed what I would characterize as a different bill. We should have convened a conference committee. We should have tried to work out differences between those bills. The failure to at least have made a good faith effort in that regard I think is very unfortunate. Mr. President, with regard to the specifics of this Secure Fence Act--and the Secure Fence Act is a piece of the House-passed immigration bill from about a year ago--I do believe there are locations along our border where fencing makes sense and additional fencing is required. However, we need to be smart about our security. Walls may make good sound bites in political ads, but the reality is that individuals charged with securing our borders have consistently stated that walls and fences are only part of the solution and that there are better and more cost-effective ways to provide for greater border security. Ralph Basham, who is the Commissioner of Customs and Border Protection, stated earlier this year in response to a question about the proposal to build 700 miles of double-layered fencing: It doesn't make sense, it's not practical. He went on to say that what we need is an appropriate mix of technology and infrastructure and additional personnel. Let me take a moment to also read some remarks delivered by Secretary Chertoff, the Secretary of Homeland Security. These were delivered on March 20 of this year in a speech he gave at the Heritage Foundation. In describing the Secure Border Initiative, also known as SBInet, Secretary Chertoff stated: We are going to build ourselves what I call a virtual fence, not a fence of barbed wire and bricks and mortar, which I will tell you simply doesn't work, because people can go over that kind of fence but rather a smart fence, a fence that makes use of physical tools but also tools about information sharing and information management that let us identify people coming across the border and let us plan the interception and apprehension in a way that serves our purposes and maximizes our resources thereby giving our border patrol the best leverage they can have in order to make sure that they are apprehending the most people. This week, the Department of Homeland Security selected Boeing as its contractor for this Secure Border Initiative. Under Boeing's proposal, it will build a network of approximately 1,800 towers along the southern border. It is unclear how mandating 700 miles of fencing as is proposed in this pending bill will fit into the proposal which Boeing has made and which has been selected by the Department of Homeland Security and whether the two together make sense. Unfortunately, the bill as currently drafted does not provide the Department of Homeland Security with the discretion that Department needs in order to determine the most appropriate means to secure the border. It also ties their hands with regard to the use and the placement of fencing. I do not think we should be mandating over 700 miles of fencing at specific locations. I do not think this Senate and those of us here in the Congress have enough detailed knowledge of the various areas along the border to be making the decision as to the specific areas where fencing needs to be built. It is also clear that the cost per mile is something we do not have a good handle on at this time in our debate. According to the Department of Homeland Security, it costs approximately $4.4 million for a single layer of fencing per mile. The bill we are debating today mandates double-layer fencing, which would add up to about $6.6 billion for the 730 miles of fencing required under this bill. In discussions with local law enforcement, local, State, and Federal law enforcement along the border in the southern part of New Mexico, we have meetings with what we call the Southwest New Mexico Border Security Task Force, and at some of those meetings I have attended the point has been raised by local security officials that the location of the proposed double-layer fencing in this bill is, in their view, at least, at the wrong place. The bill also mandates fencing in some areas where we just spent millions of dollars per mile to build vehicle barriers rather than fencing because it was the judgment of the Border Patrol that vehicle barriers were more appropriate in those areas. If we are going to spend billions of dollars to place a fence along over one-third of our southern border, we should at least ensure that it is in the right location and that the Department of Homeland Security can make necessary adjustments in the interest of securing our borders. To this end, I hope to offer an amendment that would ensure that the Secretary of Homeland Security has the ability to modify the placement and the use of fencing that is mandated in this bill; that is, he has that discretion to make those modifications if the Secretary determines that such use or placement of the fencing is not the best way to achieve and to maintain operational control of the border. I believe this is a reasonable amendment. I believe it will help ensure that DHS has the flexibility it needs to alter this proposal if the proposal is determined not to advance our overall security strategy. I hope that the majority party will allow a vote on this important measure and that they will support this important measure. Let me be clear. I believe we need to do whatever it takes to secure our borders. You cannot have a nation without secure borders. I have consistently worked to secure increased funding for vehicle barriers, for surveillance equipment, and for additional Border Patrol agents, but I also believe we need to pursue that secure border in the most effective way both from a security standpoint and in terms of the overall cost of the security. Mr. President, that is my description of the first amendment I do hope to offer. Let me also speak briefly about an amendment I hope to offer to this legislation This is regarding the Border Law Enforcement Relief Act of 2006. This is an amendment which is cosponsored by Senator Domenici of my State. It will provide local law enforcement in border communities with much needed assistance in combating border- related criminal activity. During our debate on the immigration bill, this legislation was adopted by a vote of 84 to 6. It was also adopted by unanimous consent as part of the Senate's Homeland Security appropriations bill. For far too long, law enforcement agencies operating along the border have had to incur significant costs due to the inability of the Federal Government to provide adequate security of the border. It is time that the Federal Government recognize that border communities should not have to bear that burden alone. This amendment would establish a competitive grant program within the Department of Homeland Security. These grants would help local law enforcement situated along the border to cover some of the costs they incur as a result of dealing with illegal immigration, with drug trafficking, with stolen vehicles, and with other border-related crimes. The amendment authorizes $50 million a year to enable law enforcement within 100 miles of the border to hire additional personnel, to obtain necessary equipment, to cover the cost of overtime, and to cover additional transportation costs. Law enforcement outside of this 100- mile geographical limit would be eligible if the Secretary of Homeland Security certified that they are located in what we call a high-impact area. The United States shares 5,525 miles of border with Canada and 1,989 miles of border with Mexico. Many of the local law enforcement agencies that are located along the border are small rural departments charged with patrolling very large areas of land with very few officers and with very limited resources. According to a 2001 study by the United States-Mexico Border Counties Coalition, criminal justice costs associated with illegal immigration exceeded $89 million in each and every year. Counties along the southwest border are some of the poorest in our country, and they are not in a good position to cover these initial costs. The States of Arizona and New Mexico have declared states of emergency in order to provide local law enforcement with immediate assistance in addressing criminal activity along the border, and it is time that the Federal Government step up and share some of this burden. I urge my colleagues to support this amendment again as they have in the past. Let me make it clear to my colleagues I am offering this because, although it was adopted as part of the immigration bill, we need to once again adopt this amendment and attach it to this bill if this bill in fact winds up going to the President for signature. Mr. President, let me now change subjects once more and speak not about the Secure Fence Act, which is the legislation the Senate is dealing with today, but to speak about a subject that has been given very short shrift here on the Senate floor in recent weeks and months; that is, Congress's failure to enact any serious legislation with respect to the major health care problems facing our Nation. While problems such as the fact that 47 million uninsured Americans continue to be ignored by this Congress, by this administration, what is equally disappointing to me is that there are a number of Federal health programs that we are failing to reauthorize each year, and that number continues to grow. These are programs which are public, they are well- known, and I believe the failure of the Congress to reauthorize these is a major neglect of our responsibilities. Although the Appropriations Committee continues to provide resources for a number of these expired Federal programs, Congress has increasingly failed to provide the roadmap to the executive branch for how these funds are expected to be spent. In fact, in each of the last several years, the Congress has ceded more of its legislative and its oversight roles in regard to health care to the executive branch in what one head of a national physician organization referred to as ``inexcusable inaction.'' The result is that Congress is increasingly acting more like a trade association in trying to lobby the executive branch of Government to do things related to health care than it is acting as a legislative branch actually considering and passing legislation on these important issues. I find myself being asked by colleagues to cosign letters to the administration urging them to use their discretion, their administrative discretion, their administrative authority to essentially sidestep the law, ignore the law, take unilateral action to address some of these health care issues that we in the Congress seem unable or unwilling to deal with in legislation. That is, I fear, the sad legacy of this 109th Congress on health care policy. When the question is raised: What did the 109th Congress do to improve health care for Americans, I think the answer almost certainly will be very little, if anything. First, let's take the Medicare physician payment formula. As part of the Balanced Budget Act of 1997, Congress enacted a provision that attempted to save Medicare money, and it did so by placing physician payments on an automatically adjusting formula called the sustainable growth rate or SGR. During the economic boom of the 1990s, this SGR formula worked well for physicians, and physicians did receive positive updates year after year during that period. Without getting into great details about the formula that we enacted back in 1997, there are four factors that have caused the formula to result in cuts in payments to physicians in recent years. Let me mention those four factors: First was the economic downturn in the first term of the Bush administration; second, the changes in the composition of managed-care enrollment; third, the addition of more preventive care services; and, fourth, the inclusion of prescription drugs in the calculation of the formula. Congress created a mess with a poorly devised formula and, in 2001, more than two-thirds of the Members of Congress--both Democrats and Republicans--cosponsored legislation to halt the cuts and to change the manner in which this SGR formula was to be calculated. That legislation, unfortunately, died when the congressional leadership declined to schedule a vote. As a result, physician payments were cut by 5.4 percent in 2002. In 2002, there were more than 80 percent of the Congress who signed on to cosponsor legislation to fix the physician payment formula, but some deal was brokered that year, 2002, by one of the committee chairs and one physician group to impose a freeze in the payment and backloading the cuts in a budget-neutral manner in later years. So rather than fixing the problem, that has become the new mode in Congress: we go for year after year patchwork. Physician groups face an impending cut year after year. Congress pushes back the need to truly fix the problem, and the problem grows bigger and bigger, to a point where some would argue it is virtually unfixable at this point. What do I mean by ``virtually unfixable''? According to a new Congressional Budget Office analysis of the Medicare physician payment formula, one solution to fix the problem would cost $200 billion over the next 10 years. The sham of these annual 1-year adjustments to the Medicare physician payment formula masks the true size of our Nation's budget deficit, as we all know very well that the Congress is not going to allow scheduled cuts to physician payment rates of more than 40 percent in the coming years, as is provided for in the law that is now built into the Congressional Budget Office baseline projections. So this SGR formula is clearly broken, but the hole that has been created is so deep that the problem is largely unsolvable at this point. The problem is made worse, of course, by the very fact that Congress has failed to pass a budget this year. In its next budget-- hopefully, next year--Congress needs to enact, in my view, a ``truth in budgeting'' amendment for Medicare physician payments so that we can admit the true level of our Nation's deficit by revising the payment formula baseline, and through that device address the problem with the SGR formula in a forthright manner. It is, sadly, too late to hope that we can solve all of this problem this year in this 109th Congress. I urge congressional leadership and organizations that represent physicians groups to push to resolve this annual crisis in the next Congress--early in the next Congress--in what would be a far more honest and open manner that would lead to a permanent fix with respect to this physician payment formula. Unfortunately, the Medicare physician payment formula is just one example of the much larger institutional problem facing the Congress in coming to grips with health care issues. Just a year ago Congress failed to restore more than $1 billion in expiring funding for the State Children's Health Insurance Program, or SCHIP. While there is not a single Member of Congress who would admit to not supporting the State Children's Health Insurance Program, congressional leadership has failed to find a way to ensure that $1 billion in dedicated resources to SCHIP was actually available to spend on the program. Now SCHIP faces a larger problem because the States are estimating a $900 million shortfall in fiscal year 2007 in order to provide current levels of health insurance coverage for children. According to the American Academy of Pediatrics and 85 other national organizations in a letter to Congress dated September 18: Without additional federal funding to avert these shortfalls, states may have to reduce their SCHIP enrollment, placing health care insurance coverage for over 500,000 low- income children at risk. States may also be forced to enact harmful changes to their SCHIP programs, such as curtailing benefits, increasing beneficiary cost-sharing or reducing provider payments. Just a few years ago, Congress and the administration provided what is now estimated to be a $700 billion Medicare prescription drug benefit to our Nation's seniors. Yet somehow we cannot find our way to provide 1 percent of that amount for our Nation's children to avert a shortfall in funding in order to ensure that not only prescription drugs but comprehensive health care is provided to those low-income children. Four days before that, the Institute of Medicine issued a report noting that despite a profound epidemic confronting our Nation with respect to childhood obesity, the Federal Government, the food industry, schools, and others have made little progress in stemming this growing tide of childhood obesity. In 2 straight years, the Senate has passed amendments to the Agriculture appropriations bill by overwhelming majorities to increase funding for programs such as TEAM Nutrition, only to see that money disappear once we got into conference with the House. What is needed, in my view, is national leadership, both by the administration and by the Congress. We have failed to deal with this extremely important issue affecting the long-term health of many of our children. In addition to confronting expiring provisions with programs such as Medicare and SCHIP and major problems through the appropriations process in getting adequate funds to deal with childhood obesity, I also want to raise the issue of Congress' failure to enact reauthorizations of numerous Federal programs. According to the Congressional Budget Office, in its annual report entitled ``Unauthorized Appropriations and Expiring Authorizations'': The Congress has appropriated about $159 billion for fiscal year 2006 for programs and activities whose authorizations of appropriations have expired. Some of the major health care programs whose authorizations have expired include the National Institutes of Health, the Ryan White CARE grant programs, the veterans' medical care, the Indian Health Service, and the Administration on Aging. Considering all the Congress must consider on an annual basis, it is not surprising that some programs are not reauthorized in a timely fashion. What has become disappointing is that there appears to be a lack of effort in some instances to even try or to bring these issues to closure despite the vast need. For example, the Indian Health Care Improvement Act expired in 2001, and for 6 long years American Indians and Alaska Natives have tried repeatedly to reauthorize the programs administered by the Indian Health Service. Moreover, the U.S. Commission on Civil Rights issued a report in 2003 entitled, ``A Quite Crisis: Federal Funding and Unmet Need in Indian Country,'' that called for immediate passage of the Indian Health Care Improvement Act and for the Federal Government to ``act immediately to reverse this shameful and unjust treatment'' that is the Indian health care system and funding levels. And yet, here we are 3 years later and the Committee on Indian Affairs has reported a reauthorization bill to the Senate floor over 6 months ago, but this bill has not yet been bought up for debate. Failure with respect to the Medicare physician payment formula, the State Children's Health Insurance Program shortfalls, childhood obesity, and the Indian Health Service are just examples of a larger problem that has grown over the years. Other programs, such as the Health Professions Act, so desperately need to be reauthorized and improved that both the administration and Appropriations Committee recognize are not working well, so they continue to get dramatically cut or even zeroed out. Meanwhile, as a Nation, there are areas in the country with terrible health profession shortages, and we are now importing 25 percent of our physician workforce from foreign nations, which is not a good result either for our Nation or for the country from which we have taken their doctors. Mr. President, our Nation's health care system is in a mess, and yet the Congress is not addressing rather critical and fundamental issues due to inaction, neglect, or inattention. In the coming days and during the lameduck session, I urge the leadership of the Congress to begin the work of addressing these important health care problems facing our country. Mr. President, I yield the floor.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I object.