Sam Brownback

Mr. BROWNBACK

Mr. BROWNBACK. Mr. President, I ask unanimous consent that floor privileges for the remainder of this session be granted for an intern in my office, Lindy Brownback.

Mr. BROWNBACK

Mr. BROWNBACK. Mr. President, I ask unanimous consent to set aside the pending Thune amendment and call up my amendment No. 1597.

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

Mr. BROWNBACK. Mr. President, this is a bipartisan amendment put forward by Senator Bayh and myself. I ask unanimous consent that Senators Kyl and Inhofe be added as cosponsors.

Mr. BROWNBACK. This is a bipartisan resolution and sense of the Senate that the administration should relist North Korea as a state sponsor of terrorism. As my colleagues know, the Bush administration, through a great deal of hoopla, listed North Korea as a state sponsor of terrorism. They took them off the list in spite of such terrible and erratic behavior as nuclear weapons, missile technology, and now taking U.S. citizens hostage and holding them. Nonetheless, the Bush administration, as part of the six-party talks, did an agreement, a deal to delist them as a state sponsor of terrorism. All that got us was more nuclear weapons, more missiles being sent off, more provocative action by the North Koreans, and a dismal situation. What we are asking with the amendment is that it is a sense of the Senate that North Korea should be relisted as a state sponsor of terrorism. In that regard, I wish to enter a few items in the Record to be printed at the end of my presentation that are currently in the news. This is yesterday's front page of the Washington Post where it talks about ``[North] Korea's Hard-Labor Camps: On the Diplomatic Back Burner.'' I ask unanimous consent that this full article be printed in the Record.

Mr. BROWNBACK. That is an old story. Unfortunately, we know very well about the gulags that exist in North Korea and the 200,000 people we believe are in those. Here is today's Washington Post. This was new information I found shocking: North Korea building mysterious military ties with the military junta in Burma now taking place and the possibility of them giving military equipment and supplies, I suppose possibly even nuclear arms and missile technology, to the military government in Burma. I ask unanimous consent that this be printed in the Record at the end of my statement.

Mr. BROWNBACK. If that is not enough to relist them as a state sponsor of terrorism, I don't know what is. But there is a full record we can go forward with on relisting North Korea as a state sponsor of terrorism. At the outset, I think we ought to look at this and say this is an extremely tough situation for the United States. It is one on which we need to take aggressive action to confront them on what they are doing to militarize some of the worst places and worst actors around the world and what North Korea is doing to threaten interests of the United States. All this is taking place while Kim Jong Il is ill. To what degree, we don't know for sure. A succession is being discussed. Of what nature, we are not sure. But clearly North Korea is doing the most provocative things they have probably done in the history of that provocative nation. It is taking place right now. We should notice it and recognize these are terrorist actions. We should clearly call for them to be relisted. I have, many times, spoken before regarding the long and outrageous list of crimes of the Kim regime. I will not go through those again at great length. But I will say the crimes committed by the North Korean regime include not only those external and diplomatic of nature-- violating agreements, treaties, conventions, and proliferating dangerous technologies to the world's worst actors--but the regime has also committed massive and unspeakable crimes against the North Korean people themselves who for decades have been beaten, tortured, raped, trafficked, starved, used as medical experiments, subjected to collective familial punishment, and executed in the most brutal and painful ways. If you want further details on that, read yesterday's Washington Post article. Hundreds of thousands languish in the gulag and concentration camps spread out over the entire country. All the while, the world watches and wrings its collective hands. As we pledged never again, we watch as yet again another criminal regime commits a genocide. Never again becomes yet again. I have introduced legislation to address these issues. I hope the Foreign Relations Committee can find time to take it up. The amendment before us today deals with another aspect of the North Korean criminal state, its longstanding and robust sponsorship of international terrorism. The amendment would place the Senate on record as standing for the proposition that North Korea's hostile and provocative actions will not be ignored. Indeed, they will have meaningful consequences under the law. This amendment, of which Senator Bayh is the lead cosponsor, expresses the sense of the Senate that the Secretary of State should redesignate North Korea as a state sponsor of terrorism based on its nuclear and missile proliferation, abductions, and material support for terrorist groups. On October 11, 2008, the State Department removed North Korea from the list of state sponsors of terrorism on which it had been placed since 1988. At the time, this is what President Bush said to the North Korean regime upon announcing that North Korea would be removed. He said: We will trust you only to the extent that you fulfill your promises. If North Korea makes the wrong choices, the United States will act accordingly. They have made the wrong choices. We should act accordingly. At the same time, then Candidate Obama said: Sanctions are a critical part of our leverage to pressure North Korea to act. They should only be lifted based on North Korean performance. If the North Koreans do not meet their obligations, we should move quickly to reimpose sanctions that have been waived and consider new restrictions going forward. They have not lived up to their obligations. They have continued provocative actions. They should be relisted. Let's examine how well the North Korean regime has lived up to its commitment since being removed from the list. Since removal last October, the North Korean regime has done the following: launched a multistage ballistic missile over Japan in violation of U.N. Security Council sanctions; kidnapped and imprisoned two American journalists and sentenced them to 12 years of hard labor in a North Korean prison camp; pulled out of the six-party talks vowing never to return; kicked out international nuclear inspectors and American monitors; restarted its nuclear facilities; renounced the 50-year armistice with South Korea; detonated a second illegal nuclear weapon; launched additional short-range missiles; is preparing to launch long-range missiles capable of reaching the United States; and today news accounts are reporting about North Korean proliferation to the Burmese junta, including perhaps nuclear proliferation. Add to this a long history of other ongoing illicit operations that finance the North Korean regime's budget, including the following: extensive drug smuggling; massive and complex operations to counterfeit U.S. currency, many of which are believed to be in wide circulation; money laundering; terrorist threats by the regime against the United States, Japanese, and South Korean civilians. That is what this regime and group has done and is doing. That is some of what they have done since they were delisted from the terrorist list. What have we done in response? The U.N. Security Council has passed another sanctions resolution similar to the same resolution North Korea has brazenly violated to get us to this point. In 2006, the State Department, in its terrorism report, said this about keeping North Korea on the list: North Korea ``continued to maintain their ties to terrorist groups.'' They said: Most worrisome is that some of these countries [including North Korea] also have the capability to manufacture [weapons of mass destruction] and other destabilizing technologies that can get into the hands of terrorists. If that was the justification for the terror list in 2006, certainly North Korea's actions today fit that standard--perhaps even more so than back then, and I believe it is more so. We cannot have it both ways. If we removed North Korea from the terrorism list last year as a reward for its dubious cooperation on nuclear weapons, we would only be reversing that step by adding it back after the regime betrayed its commitments and followed up with hostile and provocative actions. I would also like to address this issue: It often has been raised with me--and the Secretary of State herself has raised this indirectly with me--that the multiple statutes that control the list of state sponsors of terrorism do not provide the legal ability for the Secretary of State to redesignate. I think this argument is flawed, and I would like to summarize that by reading the relevant portions of each of these acts, because here is the key point on it, that they are saying: Well, we have to find factual basis that is different from the first round for us to do that. We are going through a legal review of doing this. But here the state sponsor of terrorism list is controlled under two different acts: the Arms Export Control Act and the Foreign Assistance Act. As to countries covered by the prohibition, it says this. This is quoting from the Arms Export Control Act: The prohibitions contained in this section apply with respect to a country if the Secretary of State determines that the government of that country has repeatedly provided support for acts of international terrorism. That is what it says in the Arms Export Control Act. The list I have just read goes through what has taken place, and they are clearly and repeatedly providing support for acts of international terrorism. It does not say anything about they cannot be relisted or we have to go through some elaborate finding process, that it cannot be based on actions they have done. These are the actions they have done in the last 6 months that are of public record. And it says the Secretary of State makes this determination and has fairly wide discretion to be able to do it. Under section 628 of the Foreign Assistance Act, it says: The United States shall not provide any assistance to any country if the Secretary of State determines that the government of that country has repeatedly provided support for acts of international terrorism. Again, the statute is very broad in its statement. It does not say anything about they cannot relist them. It says they can do this on the discretion of the Secretary of State. I do not know why we need to wait any longer, with the actions this government has taken and even with these most recent ones reported today of working with Burma or of the publicly done ones we know about of nuclear weapons detonation or the ones of missile technology being launched. Why do we need to wait longer? I recognize this is a sense of the Senate, so it is just a sense of this body. But this body has had a strong impact in prior actions when we took a sense-of-the-Senate resolution to list the Revolutionary Guard in Iran, that we believed they should be listed as a state sponsor of terrorism. The administration acted not long after that to list them as a state sponsor of terrorism. I believe if this body took strong action here now and said we believe North Korea should be relisted as a state sponsor of terrorism, it would send a very strong and proper signal to the administration-- not that we are doing your job, but we believe this is the case and this is something that is meritorious toward North Korea and its actions. That is why I urge my colleagues to support the bipartisan Bayh- Brownback amendment and vote for this amendment to the Defense authorization bill. Mr. President, with that, I yield the floor. Exhibit 1 [From the Washington Post, July 20, 2009] N. Korea's Hard-Labor Camps: On the Diplomatic Back Burner (By Blaine Harden) Seoul.--Images and accounts of the North Korean gulag become sharper, more harrowing and more accessible with each passing year. A distillation of testimony from survivors and former guards, newly published by the Korean Bar Association, details the daily lives of 200,000 political prisoners estimated to be in the camps: Eating a diet of mostly corn and salt, they lose their teeth, their gums turn black, their bones weaken and, as they age, they hunch over at the waist. Most work 12- to 15-hour days until they die of malnutrition- related illnesses, usually around the age of 50. Allowed just one set of clothes, they live and die in rags, without soap, socks, underclothes or sanitary napkins. The camps have never been visited by outsiders, so these accounts cannot be independently verified. But high- resolution satellite photographs, now accessible to anyone with an Internet connection, reveal vast labor camps in the mountains of North Korea. The photographs corroborate survivors' stories, showing entrances to mines where former prisoners said they worked as slaves, in-camp detention centers where former guards said uncooperative prisoners were tortured to death and parade grounds where former prisoners said they were forced to watch executions. Guard towers and electrified fences surround the camps, photographs show. ``We have this system of slavery right under our nose,'' said An Myeong Chul, a camp guard who defected to South Korea. ``Human rights groups can't stop it. South Korea can't stop it. The United States will have to take up this issue at the negotiating table.'' But the camps have not been discussed in meetings between U.S. diplomats and North Korean officials. By exploding nuclear bombs, launching missiles and cultivating a reputation for hair-trigger belligerence, the government of Kim Jong Il has created a permanent security flash point on the Korean Peninsula--and effectively shoved the issue of human rights off the negotiating table. ``Talking to them about the camps is something that has not been possible,'' said David Straub, a senior official in the State Department's office of Korean affairs during the Bush and Clinton years. There have been no such meetings since President Obama took office. ``They go nuts when you talk about it,'' said Straub, who is now associate director of Korean studies at Stanford University. Nor have the camps become much of an issue for the American public, even though annotated images of them can be quickly called up on Google Earth and even though they have existed for half a century, 12 times as long as the Nazi concentration camps and twice as long as the Soviet Gulag. Although precise numbers are impossible to obtain, Western governments and human groups estimate that hundreds of thousands of people have died in the North Korean camps. North Korea officially says the camps do not exist. It restricts movements of the few foreigners it allows into the country and severely punishes those who sneak in. U.S. reporters Laura Ling and Euna Lee were sentenced last month to 12 years of hard labor, after being convicted in a closed trial on charges of entering the country illegally. North Korea's gulag also lacks the bright light of celebrity attention. No high-profile, internationally recognized figure has emerged to coax Americans into understanding or investing emotionally in the issue, said Suzanne Scholte, a Washington-based activist who brings camp survivors to the United States for speeches and marches. ``Tibetans have the Dalai Lama and Richard Gere, Burmese have Aung San Suu Kyi, Darfurians have Mia Farrow and George Clooney,'' she said. ``North Koreans have no one like that.'' Executions as Lessons Before guards shoot prisoners who have tried to escape, they turn each execution into a teachable moment, according to interviews with five North Koreans who said they have witnessed such killings. Prisoners older than 16 are required to attend, and they are forced to stand as close as 15 feet to the condemned, according to the interviews. A prison official usually gives a lecture, explaining how the Dear Leader, as Kim Jong Il is known, had offered a ``chance at redemption'' through hard labor. The condemned are hooded, and their mouths are stuffed with pebbles. Three guards fire three times each, as onlookers see blood spray and bodies crumple, those interviewed said. ``We almost experience the executions ourselves,'' said Jung Gwang Il, 47, adding that he witnessed two executions as an inmate at Camp 15. After three years there, Jung said, he was allowed to leave in 2003. He fled to China and now lives in Seoul. Like several former prisoners, Jung said the most arduous part of his imprisonment was his pre-camp interrogation at the hands of the Bowibu, the National Security Agency. After eight years in a government office that handled trade with China, a fellow worker accused him of being a South Korean agent. ``They wanted me to admit to being a spy,'' Jung said. ``They knocked out my front teeth with a baseball bat. They fractured my skull a couple of times. I was not a spy, but I admitted to being a spy after nine months of torture.'' When he was arrested, Jung said, he weighed 167 pounds. When his interrogation was finished, he said, he weighed 80 pounds. ``When I finally got to the camp, I actually gained weight,'' said Jung, who worked summers in cornfields and spent winters in the mountains felling trees. ``Most people die of malnutrition, accidents at work, and during interrogation,'' said Jung, who has become a human rights advocate in Seoul. ``It is people with perseverance who survive. The ones who think about food all the time go crazy. I worked hard, so guards selected me to be a leader in my barracks. Then I didn't have to expend so much energy, and I could get by on corn.'' Defectors' Accounts Human rights groups, lawyers committees and South Korean- funded think tanks have detailed what goes on in the camps based on in-depth interviews with survivors and former guards who trickle out of North Korea into China and find their way to South Korea. The motives and credibility of North Korean defectors in the South are not without question. They are desperate to make a living. Many refuse to talk unless they are paid. South Korean psychologists who debrief defectors describe them as angry, distrustful and confused. But in hundreds of separate interviews conducted over two decades, defectors have told similar stories that paint a consistent portrait of life, work, torment and death in the camps. The number of camps has been consolidated from 14 to about five large sites, according to former officials who worked in the camps. Camp 22, near the Chinese border, is 31 miles long and 25 miles wide, an area larger than the city of Los Angeles. As many as 50,000 prisoners are held there, a former guard said. There is a broad consensus among researchers about how the camps are run: Most North Koreans are sent there without any judicial process. Many inmates die in the camps unaware of the charges against them. Guilt by association is legal under North Korean law, and up to three generations of a wrongdoer's family are sometimes imprisoned, following a rule from North Korea's founding dictator, Kim Il Sung: ``Enemies of class, whoever they are, their seed must be eliminated through three generations.'' Crimes that warrant punishment in political prison camps include real or suspected opposition to the government. ``The camp system in its entirety can be perceived as a massive and elaborate system of persecution on political grounds,'' writes human rights investigator David Hawk, who has studied the camps extensively. Common criminals serve time elsewhere. Prisoners are denied any contact with the outside world, according to the Korean Bar Association's 2008 white paper on human rights in North Korea. The report also found that suicide is punished with longer prison terms for surviving relatives; guards can beat, rape and kill prisoners with impunity; when female prisoners become pregnant without permission, their babies are killed. Most of the political camps are ``complete control districts,'' which means that inmates work there until death. There is, however, a ``revolutionizing district'' at Camp 15, where prisoners can receive remedial indoctrination in socialism. After several years, if they memorize the writings of Kim Jong Il, they are released but remain monitored by security officials. South's Changing Response Since it offers a safe haven to defectors, South Korea is home to scores of camp survivors. All of them have been debriefed by the South Korean intelligence service, which presumably knows more about the camps than any agency outside of Pyongyang. But for nearly a decade, despite revelations in scholarly reports, TV documentaries and memoirs, South Korea avoided public criticism of the North's gulag. It abstained from voting on U.N. resolutions that criticized North Korea's record on human rights and did not mention the camps during leadership summits in 2000 or 2007. Meanwhile, under a ``sunshine policy'' of peaceful engagement, South Korea made major economic investments in the North and gave huge, unconditional annual gifts of food and fertilizer. The public, too, has been largely silent. ``South Koreans, who publicly cherish the virtue of brotherly love, have been inexplicably stuck in a deep quagmire of indifference,'' according to the Korean Bar Association, which says it publishes reports on human rights in North Korea to ``break the stalemate.'' Government policy changed last year under President Lee Myung-bak, who has halted unconditional aid, backed U.N. resolutions that criticize the North and tried to put human rights on the table in dealing with Pyongyang. In response, North Korea has called Lee a ``traitor,'' squeezed inter- Korean trade and threatened war. An Enforcer's View An Myeong Chul was allowed to work as a guard and driver in political prison camps because, he said, he came from a trustworthy family. His father was a North Korean intelligence agent, as were the parents of many of his fellow guards. In his training to work in the camps, An said, he was ordered, under penalty of becoming a prisoner himself, never to show pity. It was permissible, he said, for bored guards to beat or kill prisoners. ``We were taught to look at inmates as pigs,'' said An, 41, adding that he worked in the camps for seven years before escaping to China in 1994. He now works in a bank in Seoul. The rules he enforced were simple. ``If you do not meet your work quota, you do not eat much,'' he said. ``You are not allowed to sleep until you finish your work. If you still do not finish your work, you are sent to a little prison inside the camp. After three months, you leave that prison dead.'' An said the camps play a crucial role in the maintenance of totalitarian rule. ``All high-ranking officials underneath Kim Jong Il know that one misstep means you go to the camps, along with your family,'' he said. Partly to assuage his guilt, An has become an activist and has been talking about the camps for more than a decade. He was among the first to help investigators identify camp buildings using satellite images. Still, he said, nothing will change in camp operations without sustained diplomatic pressure, especially from the United States. Inconsistent U.S. Approach The U.S. government has been a fickle advocate. In the Clinton years, high-level diplomatic contacts between Washington and Pyongyang focused almost exclusively on preventing the North from developing nuclear weapons and expanding its ballistic missile capability. President George W. Bush's administration took a radically different approach. It famously labeled North Korea as part of an ``axis of evil,'' along with Iran and Iraq. Bush met with camp survivors. For five years, U.S. diplomats refused to have direct negotiations with North Korea. After North Korea detonated a nuclear device in 2006, the Bush administration decided to talk. The negotiations, however, focused exclusively on dismantling Pyongyang's expanded nuclear program. In recent months, North Korea has reneged on its promise to abandon nuclear weapons, kicked out U.N. weapons inspectors, exploded a second nuclear device and created a major security crisis in Northeast Asia. Containing that crisis has monopolized the Obama administration's dealings with North Korea. The camps, for the time being, are a non-issue. ``Unfortunately, until we get a handle on the security threat, we can't afford to deal with human rights,'' said Peter Beck, a former executive director of the U.S. Committee for Human Rights in North Korea. A Family's Tribulations Kim Young Soon, once a dancer in Pyongyang, said she spent eight years in Camp 15 during the 1970s. Under the guilt-by- association rule, she said, her four children and her parents were also sentenced to hard labor there. At the camp, she said, her parents starved to death and her eldest son drowned. Around the time of her arrest, her husband was shot for trying to flee the country, as was her youngest son after his release from the camp. It was not until 1989, more than a decade after her release, that she found out why she had been imprisoned. A security official told her then that she was punished because she had been a friend of Kim Jong Il's first wife and that she would ``never be forgiven again'' if the state suspected that she had gossiped about the Dear Leader. She escaped to China in 2000 and now lives in Seoul. At 73, she said she is furious that the outside world doesn't take more interest in the camps. ``I had a friend who loved Kim Jong Il, and for that the government killed my family,'' she said. ``How can it be justified?'' Exhibit 2 [From the Washington Post, July 21, 2009] Clinton: U.S. Wary of Growing Burmese, North Korean Military Cooperation (By Glenn Kessler) Bangkok, July 21--The Obama administration is increasingly concerned that nuclear-armed North Korea is building mysterious military ties with Burma, another opaque country with a history of oppression, Secretary of State Hillary Rodham Clinton said Tuesday. ``We know that there are also growing concerns about military cooperation between North Korea and Burma, which we take seriously'' Clinton told reporters after talks in the Thai capital. ``It would be destabilizing for the region. It would pose a direct threat to Burma's neighbors.'' U.S. officials traveling with Clinton, who is in Thailand to attend a regional security forum, said the concerns about Burma and North Korea extend to possible nuclear cooperation. North Korea has a long history of illicit missile sales and proliferation, including secretly helping to build a Syrian nuclear reactor that was destroyed in 2007 by Israeli jets. ``This is one of the areas we'd like to know about,'' said one official. ``We have concerns, but our information is incomplete.'' Burma, also known as Myanmar, is regarded as one of the world's most oppressive nations, run by generals who have enriched themselves while much of the country remains desperately poor. North Korea is an equally grim country, with vast prison camps and an ailing dictator, Kim Jong Il. The evidence of growing Burmese-North Korean cooperation since formal ties were restored in 2007 is extensive, but the full extent of the military relationship is unclear. The nuclear connection is even murkier, but intelligence agencies have tracked suspicious procurement of high- precision equipment from Europe, as well as the arrival in Burma of North Korean officials associated with the company connected to the Syria reactor, according to David Albright, director of the Institute for Science and International Security in Washington. ``Something may be going on, but no one has any proof. It is a mix of suspicions and concerns,'' Albright said, adding that close examination of satellite imagery of suspected nuclear sites has turned up no evidence. But he said that the purchases of high-precision equipment were especially troubling because the equipment did not make sense for use in missiles and it was shipped to educational entities that had connections to Burmese nuclear experts. Japanese officials last month also arrested three people for attempting to illegally export dual-use equipment to Burma, via Malaysia, under the direction of a company involved in the illicit procurement for North Korean military programs. Moreover, Albright said, European and U.S. intelligence agencies have identified people associated with Namchongang Trading Corp., a North Korean company also known as NCG, as working in Burma. NCG reportedly provided the critical link between Pyongyang and Damascus, acquiring key materials from vendors in China and probably from Europe and secretly transferring them to a desert construction site near the Syrian town of Kibar. The State Department last month cited NCG for being ``involved in the purchase of aluminum tubes and other equipment specifically suitable for a uranium enrichment program since the late 1990s.'' U.S. officials have observed other troubling connections. The U.S. Navy last month closely tracked Kang Nam 1, a rusty North Korean freighter, after the government in Pyongyang tested a nuclear weapon. Although U.S. officials were never completely certain the ship was headed to Burma, the ship returned to North Korea after the United States, China and other countries put pressure on Burma to respect a United Nations resolution barring most North Korean weapons exports. Photographs that have emerged in recent weeks also show an extensive series of 600 to 800 tunnel complexes and other underground facilities built in Burma with North Korean technical assistance near its new capital, Naypyidaw. North Korean officials can be spotted in the photos, which were taken between 2003 and 2006 and posted on the Web site of YaleGlobal Online by journalist Bertil Lintner, an expert on Burma. Burma has uranium deposits, but as a signatory to the nuclear Non-Proliferation Treaty, it is required to allow inspections of any nuclear facilities. Russia in 2007 agreed to help build a 10-megawatt light-water reactor in Burma, but little appears to have come of the project. At the news conference, Clinton also strongly criticized the Burmese government for its well-documented use of gang rape as a military tactic, organized by Burmese officers, against ethnic minorities. A new offensive against the Karen ethnic group has sent more than 4,000 refugees fleeing across the border into Thailand in recent weeks. ``We are deeply concerned by reports of continuing human rights abuses within Burma, particularly by actions that are attributed to the Burmese military concerning the mistreatment and abuse of young girls,'' Clinton said. The Obama administration is conducting a review of its Burma policy, which Clinton said has been placed on hold while Washington awaits the outcome of the trial of Nobel Peace Prize laureate Aung San Suu Kyi. ``We have made clear we expect fair treatment of Aung San Suu Kyi, and we have condemned the way that she has been treated by the regime in Burma, which we consider to be baseless and totally unacceptable,'' Clinton said. The National League for Democracy, Suu Kyi's party, won a landslide electoral victory in 1990, but the military leadership refused to accept it. Since then, she has been under house arrest for most of the time, as have hundreds of her supporters. In May, just days before Suu Kyi's six-year term under house arrest was due to expire, the government put her on trial for an incident involving a U.S. citizen who swam across Rangoon's Lake Inya to reach Suu Kyi's lakefront bungalow and allegedly stayed there one or two nights. Suu Kyi was taken to Rangoon's notorious Insein Prison on charges of violating the terms of her detention by hosting a foreigner, which could bring a three- to five-year prison term, according to Burmese opposition officials. Suu Kyi, 63, is said to be in poor health and has recently been treated for dehydration and low blood pressure. ``Our position is that we are willing to have a more productive partnership with Burma if they take steps that are self-evident,'' Clinton said. She called on Burmese authorities to ``end the violence against their own people,'' including ethnic minorities, ``end the mistreatment of Aung San Suu Kyi'' and release political prisoners.

Mr. BROWNBACK. Mr. President, I ask unanimous consent to add Senator Bennett from Utah as a cosponsor of the amendment.

Mr. BROWNBACK. I thank my colleague from Arizona. I think he understands more than anybody in this body the situation and what happens in a gulag-type situation. That has drawn me to the topic of North Korea for a couple years--the human rights abuses. Hundreds and thousands of North Koreans are fleeing to be able to simply get food, and a couple hundred thousand of them are in the gulag system. It is unbelievable that this can happen in 2009. We have Google Earth that can even show this. But we just say: OK, that is the sort of thing that happens there. It is mind-boggling to me that we wouldn't act resolutely. I appreciate the chairman of the Foreign Relations Committee, the Senator from Massachusetts, who is a distinguished Senator and is very bright and experienced in foreign policy. I could not disagree with him more about North Korea. We have had an ongoing dialog and discussion about this. He makes the point that we should not pop this on the bill. I have been trying for months for us to relist them as terrorists. They should not have been delisted in the first place. It was a terrible process move on the Bush administration to try to move the talks forward, saying we are going to delist you and you are going to do something for us. Pyongyang and Kim Jong Il said thank you very much, and now we are going to stick it in your face, which is what they have continued to do. I have listed the things, as the Senator from Arizona has mentioned as well. The thought that we are acting resolutely, to me, is an insult to the people in North Korea who have lived under this oppressive regime. We are not acting resolutely toward North Korea. We are not putting any sanctions on them. We have asked for international sanctions, but why aren't we willing to put sanctions on ourselves? If we think this is such a proper course to follow, and we are willing to push it on an international body, why wouldn't we be willing to do it ourselves? Why wouldn't we be willing to list them as a terror nation, as a state sponsor of terror? I don't understand that; why, if it is good in the international arena, we wouldn't do it ourselves. Plus, we need to have teeth into this. This is a modest--a modest-- proposal. It is a resolution, a sense of the Senate that North Korea should be relisted as a state sponsor of terrorism. We are not relisting them. That is an administration call. We are saying we, as a body, given the provocative actions that have taken place since they have been delisted clearly merits the relisting of North Korea as a state sponsor of terrorism. That is our opinion, and that is what we are saying to the administration. Without a foundation in the law, it is clearly--as I read previously--allowed for the Secretary of State to determine that the government of that country has repeatedly provided support for acts of international terrorism. That is the actual wording of the law in the Arms Export Control Act. Clearly, they have acted to sponsor international terrorism with their relation with Burma, with the missiles, with the nuclear weapons, and with the proliferation they have done and continue to do. He says, and is suggesting, that delisting has no practical effect. I believe it does have a practical effect, and it certainly does on the administration's stance toward North Korea and their international posture toward North Korea. Plus, it has a practical effect on what we can provide for as far as aid from the United States to North Korea. We shouldn't be providing aid to the North Koreans. We should provide food aid, if we can monitor it. We shouldn't be giving oil to the North Koreans. That should be limited so the administration cannot do that. They would not be able to if they are listed as a state sponsor of terrorism. Mr. President, it will hurt the people of North Korea and those who are in the North Korean gulags if we don't relist them. It recovers any vestige of hope they might have that at some point in time somebody of enough stature, such as the United States Government, is going to take enough notice that they are going to put pressure on the North Korean regime. I have talked with some people who were refuseniks in the Soviet Union, in a Soviet gulag during an era where we had far less communication capacity than we do today, and yet they were able to get messages at that point in time into the Soviet gulag that the Americans were putting pressure on the Soviet Union and the lack of human rights in the Soviet Union, and it gave them hope. It gave them hope in the Soviet gulag. If we can pass this, it can give people in the gulags in North Korea hope that somebody is at least paying enough attention to put pressure on this, and maybe they may be able to live longer, or actually live at all. It can give them hope, instead of ``abandon hope all ye who enter here,'' as it says at the entrance to Inferno and as it is in the gulag system in North Korea. So it is a modest resolution, and I would hope my colleagues would vote overwhelmingly for this resolution to relist North Korea as a state sponsor of terrorism. I yield the floor.

Mr. BROWNBACK

Mr. BROWNBACK. Madam President, I certainly concur with the statement of my colleague from South Dakota as to what he is saying about the health insurance issue and the need to do it right rather than fast. I think it is critically important. I would like to bring to the body's attention something that was on the front page of the Washington Post today. It is an article about ``Who Will Succeed Kim Jong Il?'' and the point being: Here is a country that has recently tested missiles that can reach Hawaii, that has recently tested a nuclear device. He is gravely ill. Some are reporting he has pancreatic cancer. We don't know for sure what he has. But the question is, Who will succeed Kim Jong Il? And what does that mean to the United States? And what are we doing about it? In our office, we are working on a piece of legislation to try to start some planning on our part as to what we should be doing if the leader in North Korea falls and if the state fails in North Korea, which is a very real possibility: that the overall state apparatus in North Korea will fail, that you will have hundreds of thousands, possibly millions, of people seeking to flee that country or--in a grip of searching for food--moving around to try to find food, that nuclear weapons will not be well watched, and the missile capacity that is there--all in a state that is failing and may fall altogether. The reason I point this out is, we are on the Defense authorization bill. It is a very important piece of legislation. It is a key piece of legislation. It is a piece of legislation we pass every year because it is so important to the future of this country and so important to the defense of this country. Here is a moment where we are looking at a potential nuclear threat, missile threat, to the United States and we ought to take up this issue and we ought to deal with the Defense authorization bill and, instead, we are on hate crimes legislation. The majority party has 60 votes to be able to move to that on another piece of legislation and should if they want to bring that up. But why here? And why are we eating up a couple days to do this on this bill, when we have these sorts of threats staring us right in the face? I am going to put forward an amendment on the Defense authorization bill asking that we relist North Korea as a terrorist country. I think we ought to look at going at their financial instruments. I think we clearly need to be planning for the failure of this state, and we ought to be looking, as a humanitarian issue, at the failure of this state. I think we ought to be looking, as a security issue, at the failure of this state. If North Korea falls, are we rushing in to try to secure the nuclear sites? Is South Korea? Is China? Is everybody in some sort of agreement as to what takes place to secure these nuclear sites? What are we doing on humanitarian issues for 20 million people, many of whom will be starving during that period of time--where a number of them are starving now in North Korea? This is a very present and pressing issue and instead we are on hate crimes legislation. As a nation, we will not tolerate violent crime, and I am appalled by news stories of individuals being assaulted or even killed because of their ethnicity, their beliefs, who they are. I am appalled by violence done to those who choose any sort of lifestyle they may choose. I believe we must send a strong message through our law enforcement and judicial system that such attacks would bring the full force of law upon those who commit such terrible acts. I do appreciate the good will and sincerity of those who wish to expand hate crimes legislation. However, I do not believe such legislation in this body from the Federal Government is the answer. I do not think that is something we should be doing on a Department of Defense authorization bill when we are facing such key strategic threats internationally and we have forces in the field in Iraq and in Afghanistan today. This is not the place. This is not the time. First, I believe that the severity of a crime should be based upon actions committed. If a violent crime is committed, then the perpetrator should be prosecuted to the fullest extent of the law. Every violent crime ought to be treated as severe, regardless of why it was committed. Every life has value, and every murder is an egregious crime. Our law enforcement and judicial system should be focused on holding individuals accountable for what they do, not what they think, feel or believe. During the passage of the Statute for Establishing Religious Freedom in 1785, James Madison expressed, ``extinguished for ever the ambitious hope of making laws for the human mind.'' He clearly opposed any law that punished the thoughts or motives of people. Laws already exist to punish crimes themselves. The Matthew Shepard, hate crimes bill authorizes the prosecution of a crime motivated by actually or perceived race, color, religion national origin, sexual orientation, gender identity, or disability of the victim. This is another example in which a thought or belief becomes an element of prosecuting crime. Second, I oppose this bill because I believe it would usurp the power and jurisdiction of the States. It violates constitutional federalism by asserting Federal law enforcement power to police local conduct over which the Constitution has reserved sole authority to the 50 States. No matter how upset Americans and politicians might be about certain criminal behavior, every criminal offense and every authorization of criminal enforcement power should be restricted by the explicit principles of the Constitution as well as our long-established criminal law precedents. Currently, 45 States, as well as the District of Columbia, have hate crime laws. Many of these State laws carry heavier penalties than those proposed in this hate crimes bill. During the Judiciary Committee's hearing on hate crimes, Secretary Holder was asked to prove that there is evidence that hate crimes cases are not receiving proper prosecution and sentencing at the State level. He was unable to produce any. Even members of the U.S. Commission on Civil Rights, the commission of the U.S. Federal Government charged with the responsibility for investigating, reporting on, and making recommendations concerning civil rights issues that face the Nation, oppose this bill. Their concern is that this law will allow Federal officials to reprosecute defendants who have already been acquitted by State juries. Third, all crime victims deserve equal protection under the law. This is granted to them under the 14th amendment. Hate crime laws create a multilevel system of justice in which some crime victims' cases are prosecuted more severely than others. Recently during the hate crimes debate in the House of Representatives, amendments to add military personnel, pregnant women, the elderly, and the homeless to the list of protected classes were all defeated. It is wrong to attempt to set up the law to favor one class of Americans over another. Fourth, during the Judiciary hearing on hate crimes, Michael Lieberman of the Anti-Defamation League, when referring to hate crimes, said that ``these are selective prosecutions.'' We have also heard a lot of talk about wanting the Federal Government to send a message about the severity of hate crimes. I cannot endorse the idea that criminal law should be selective or be used to send a message. Its purpose is to prosecute criminal action, not to make selective statements. Finally, I oppose this bill because I am concerned that it could be used to prosecute against religious leaders and organizations for speaking out against acts they find morally unacceptable. Hate crime laws have already been used in foreign countries to silence people of faith who speak their opinion on homosexuality that is derived from their faith. The other side continues to insist that this bill does not prosecute speech, only criminal actions. Yet there is great concern within religious communities that the Federal Government could prosecute their leaders and members criminally based on their speech or other protected activity. This is a chilling threat to the first amendment right to free speech for people of faith and freedom of religion. I urge my colleagues to vote against this amendment. I wish to point out and say to my colleagues, particularly the chairman who is on the floor, my hope is, once we get past hate crimes, we will remain on the Department of Defense authorization and take up the issue of North Korea. I know some may say: Well, that is not germane to the Department of Defense bill. I think it is a lot closer than what we are on right now. I would hope we would bring up this issue because of the clear and present problems we are facing on this issue. I know the chairman of this committee knows this issue very well. I have worked with him on this issue previously. So we have now a bipartisan bill to relist them as a terrorist country that we are bringing forward. I met with our nominee to be Ambassador to China today, saying we should begin planning with the Chinese Government today for the failure of the North Korea state taking place in this successionist order. The North Koreans are acting peculiarly, even by North Korean standards, with all the missiles they have launched, the nuclear weapons they have put in play, the things they have stated lately. They are normally provocative, but this is an all-out scale of provocation that is taking place now. It would be my hope we could bring this up and at least start to address what clearly is opening to be a major problem. Whether the Obama administration wants to address it now or the Senate wants to address it now, we may not have a choice. If he is facing pancreatic cancer and there is a successionist battle taking place in a nuclear- armed missile country of North Korea and us having 25,000, 27,000 troops just south in South Korea, we may not have a choice. We need to get this addressed. So I would hope the chairman of the committee could take this up at that proper time. I appreciate this chance and to be able to put this statement into the Record. I think it is prudent for us to start to address some things that are right on and in front of us rather than this hate crimes legislation that does not apply to the Department of Defense bill. I yield the floor.

Mr. BROWNBACK. Madam President, there is soon to be an announced agreement. In that there will be an amendment I am putting forward to protect free speech. I hope all my colleagues would join me in supporting the amendment I am putting forward on the hate crimes bill. I think it is very important that we protect free speech. It has been one of the things my colleagues who support the hate crimes legislation are saying: Look, we are protective of free speech. We are protective of religious expression. If that is the case, I hope they will vote for the amendment I am putting forward. I think it is important we be very clear on the protection of free speech and religious protection as protected in the first amendment in this bill as a way for it to be clear these things are to be protected. I want to read the amendment I am putting forward. It is a paragraph long, and I think by reading it, it will help explain some of this to my colleagues: Nothing in this section or an amendment made by this section shall be construed or applied in a manner that infringes any rights under the First Amendment to the U.S. Constitution, or substantially burdens any exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, association, if such exercise of religion, speech, expression, or association was not intended to--(1) plan or prepare for an act of physical violence; or (2) incite an imminent act of physical violence against another. There is some lawyerese in that, but what it says is you have free speech unless it is intended to plan or prepare for an act of physical violence or incite an imminent act of physical violence against another. In other words, if you are saying this to try to incite people to physical violence or an imminent act of physical violence, that is not protected. But everything else is free speech and may be seen by some as religious expression. What we are trying to do is narrow this, tying it into the actual act that takes place and not be an act that intimidates people's expression of their ideas or expression of their religious convictions that they may hold. I hope my colleagues will look at this and say, yes, that is what we mean to do, and not to sort of have a chilling effect on all free speech, all free expression, on all free expression within a religious organization or group that may have some differing views. Frankly, I don't think, if we have a bill that intimidates or chills first amendment free speech or religious expression, that it is going to stand constitutional challenge. That is why I am putting forward this amendment. The current language of this bill attempts to project the free exercise of religion solely to a first amendment constitutional framework. I think this is problematic because the Supreme Court has severely limited those first amendment rights, particularly regarding free religious expression as a result of a decision in an Employment Division, Department of Human Resources of Oregon v. Smith. It was a Ninth Circuit Court opinion. The Congress, after that opinion was issued, was quick to recognize the damage done to religious freedom in Smith and in response passed the Religious Freedom Restoration Act. This act serves as a framework created by Congress to protect religious free speech in other contexts. That is what this amendment is taking from, this bill that has already passed this Congress by a wide margin, the Religious Freedom Restoration Act. My amendment adopts language from that bill in contrast to the free exercise jurisprudence of the Supreme Court. Courts have noted that the congressionally created Religious Freedom Restoration Act model possesses clarity and ease of construction. In fact, numerous claims that were unsuccessful under the first exercise clause jurisprudence of the Supreme Court have either prevailed or were entitled to remand for more favorable review under the Religious Freedom Restoration Act. My amendment seeks to protect religious motivated speech but it protects speech. What it says is, if you are in a narrow category of where you are intending this speech to cause somebody bodily harm, then you are not protected, and you should not be protected. But, if otherwise, you are exercising your right of free speech or religious association, you are entitled to the protection under the Constitution. It would be my hope that my colleagues would look at this amendment and they would say that what we are putting forward is an amendment which has passed this body previously, passed this body in a strong bipartisan vote, is one that we want to stick with--that definition and not this broader one that can be interpreted as limiting first amendment freedom of expression or religious association. That is a simple amendment I have put forward. I ask my colleagues to look at the amendment itself. It is one paragraph long. I ask they support this amendment. I yield the floor and suggest the absence of a quorum.

Mr. BROWNBACK. Mr. President, I call up my amendment No. 1610 and ask that it be brought before the body.

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

Mr. BROWNBACK. Mr. President, this is part of the agreement we had for votes on side-by-sides. What this amendment does is put forward and into this bill language that this body has already passed by a vote of 97 to 3. It is language that was in the Religious Freedom Restoration Act. It is to protect individuals' religious freedom, their freedom of expression. It has passed this body overwhelmingly. It narrows the definition and it says that if you intend to incite somebody to do physical harm to another individual, that is not protected speech. If you plan to prepare for an act of physical violence or incite an imminent act of physical violence against another, it is not protected, that is not protected speech; otherwise, you have free speech and the right to free speech expression and religious freedom expression. It is important that we have a very clear definition--a narrow definition but a very clear definition--of what is protected and what is not protected speech in this very critical area of first amendment rights and limitations we are putting in here. It is a very short amendment, a very important amendment on the hate crimes legislation. I ask my colleagues for their support again, as many of my colleagues have already voted for it in an overwhelming number. I thank my colleagues for their review of this amendment. I hope they can vote for it. I yield the floor.

Mr. BROWNBACK. I certainly don't have an objection to an amendment being brought up. I would note that this is a very important area we are treading on, limitation of people's free speech and religious association they have. What I am offering is language that has passed this body by a large margin before, 97 to 3. I hope to see the language the Senator from Vermont is putting forward. If it is the language that is currently in the bill, this is quite untested language in a very limited area. I read his language to be quite expansive. I think it would be questionable, going into constitutional territory. But the bigger point on this being that I believe my colleagues who want to pass the hate speech legislation have been saying all along this does not limit somebody's right of free speech. It doesn't limit anybody's right of religious expression, if they have different views. It is just about a violent act and association that would reflect hate. So what I have done in two sentences is say let's be specific about that rather than very general about that in its interpretation or leaving that to the court. If I have the language correct that he is putting forward in reinstating this, I really hope my colleagues would look at both of these and say they do want a very narrow, specific definition put forward.

Mr. BROWNBACK. Thank you very much, Mr. President. I thank my colleagues, and I thank the chairman of the Armed Services Committee for his comment on this issue. I guess the conferees will have to deal with a difficult issue outside the jurisdiction of the committee, particularly on something like hate crimes, which I really have great question as to why on Earth we would do this on a DOD authorization bill. But I would like to point out that my colleague, the chairman of the Judiciary Committee, has been in that committee for a long period of time, and he knows these issues very well. What his amendment puts forward is something that will be interpreted then by the courts. It will have to be interpreted by the courts, and it has broader language. What I am putting forward is very specific language that puts a clear intent of the Congress not to limit certain types of speech but to limit speech that is associated with physical harm or the incitement of physical harm. That seems to me to be clearly appropriate for us to do, probably a better thing to do on the hate crimes legislation--for us to be very specific and narrow in this area where we are treading into first amendment religious expression areas. I would like to read my language, if I could, to my colleague. It says--and this is the operative part of this--``if such exercise of religion, speech, expression, or association was not intended to''--so it protects every area except what is ``not intended to plan or prepare for an act of physical violence; or incite an imminent act of physical violence against another.'' So we are trying to get into the category and the area, and a lot of people are very concerned about this, about being able to have their rights for religious expression and freedom. I think this is a much tighter focus. I believe my colleague would agree, as a lawyer----

Mr. BROWNBACK. Mr. President, I ask for the yeas and nays on the Brownback amendment.

Mr. BROWNBACK. The language we put in the Religious Freedom Restoration Act passed this body 97 to 3. This language is much more targeted, so it doesn't leave it all to the interpretation of the court. It expresses what this body has previously expressed. I think it is important that we put this forward. It says that if you are speaking and intending to incite physical violence or imminent threat, that is not protected speech. But otherwise you have protected speech. It puts a much finer definition on it that is important for this legislation. I urge my colleagues to vote for this amendment.

Mr. BROWNBACK. I move to reconsider the vote, and I move to lay that motion on the table. The motion to lay on the table was agreed to. Cloture Motion

Mr. BROWNBACK

Mr. BROWNBACK. Mr. President, I commend the extraordinary career of Norm Coleman. Norm began his public service as a prosecutor for the Minnesota State Attorney General's Office, working his way up to chief prosecutor before eventually serving as solicitor general of Minnesota. In 1993, he became mayor of St. Paul. During his tenure as mayor, Norm worked faithfully to revitalize the city, even securing a National Hockey League franchise for St. Paul. In 2002, at the urging of President Bush, Norm ran for U.S. Senate. He was the challenger in a close, hard-fought race, and his ultimate victory was an exciting one. I am proud to have served alongside Norm in the Senate. He was an excellent comrade in the fight against partial birth abortion and worked hard to prevent waste and fraud at the United Nations. Known for his willingness to work with both parties, Norm fought for tax cuts, renewable energy, and prescription drug benefits for seniors. He worked for the passage of legislation improving rural health care, increasing funding for Pell Grants and securing our ports. He leaves an impressive record as testament to his service in the Senate, but his presence here will be missed. Though the outcome of last fall's election ended differently than I had hoped, I know great things are in store for Norm. He has much more to offer our great country. I wish Norm, his wife Laurie, and their two children, Jacob and Sarah, all the best as they embrace the new and exciting opportunities before them.

Mr. BROWNBACK

Mr. BROWNBACK. Mr. President, I believe under a previous agreement I have time allotted at the present time; is that correct, if I could inquire of the Chair.

Mr. BROWNBACK. Mr. President, I rise today to discuss the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court. I had the opportunity to meet with Judge Sotomayor 2 weeks ago. I was in the Senate when she was previously before this body on the Second Circuit Court nomination, and I appreciated the chance to meet with her recently. I have also appreciated the chance to review her record in depth and also to hear my colleagues speak about Judge Sotomayor, because it represents the distinction that I think is very important to note here. My colleague from Missouri just spoke, and she was talking about the wonderful qualifications of Judge Sotomayor and the candidate's background and experiences that she brings. She has a very interesting, a very American story to tell of her background. It is a compelling story. She is the daughter of immigrants who overcame diversity to go to two of the Nation's best universities. I admire that, and I admire the things they pointed out in their presentation of her background and what she has done. I think those are all admirable characteristics. But what we are doing here is picking somebody to be on the U.S. Supreme Court, and what their judicial philosophy is that they will take with them. It isn't all just about the background or the experience. It is about the judicial philosophy that comes forward, and that is what my colleagues didn't discuss. So that is what I want to discuss here this afternoon. I have had the chance to review Judge Sotomayor's records. In 1998, the Senate voted to promote Judge Sotomayor to the appellate court. I voted against her at that time because I was concerned not about her background, not about her qualifications, but I was concerned that she embraced an activist judicial philosophy. That is what I want to talk about today, because that is what we are deciding when we put somebody on the Supreme Court--what is the judicial philosophy this person carries with them. It is not necessarily about their own background or their qualifications. Those are important to review, but at the heart is what is the judicial philosophy. Is this a person who supports an activist judiciary getting into many areas in which the American public doesn't think they should go into or is it a person who believes in more of a strict constructionist view, that the Court is there to be an umpire and not an active player in policy development? Are they an umpire who calls the balls and strikes, and not how do we do law; how do we rewrite what is here? I think the Court loses its lustre when it gets into becoming an active player in policy development instead of being a strict umpire of policy development. Unfortunately, what I saw in Judge Sotomayor in 1998 was somebody who embraced an activist judicial philosophy. During a 1996 speech at Suffolk University Law School 2 years before the Senate voted on her nomination to the Second Circuit, Judge Sotomayor said: The law that lawyers practice and judges declare is not a definitive capital ``L'' law that many would like to think exists. Translated, that is to say the law is not set. It is mobile, as moved by judges, not by legislatures. This is not the rule of law. This is the rule from the bench. This is the rule of man, and it makes our law unpredictable. That is not good for a society like ours which is based on the rule of law, not the rule by a person. Any nominee to the Federal bench, and especially to the U.S. Supreme Court, must have a proper understanding and respect for the role of the Court--for the role they would assume. The Court must faithfully hold to the text of the Constitution and the intent of the Founders, not try to rewrite it based on ever changing cultural views. This is at the heart of what a judge does. Democracy, I believe, is wounded when Justices on the high Court, who are unelected, invent constitutional rights and alter the balance of governmental powers in ways that find no support in the text, the structure, or the history of the Constitution. Unfortunately, in recent years, the courts have assumed a more aggressive political role. In many cases, the courts have allowed the left in this country to achieve through court mandates what it cannot persuade the people to enact through the legislative process. The Constitution contemplates that the Federal courts will exercise limited jurisdiction. They should neither write nor execute the law. This is very basic in our law and goes back to the very Founders. As Chief Justice John Marshall said in his famous 1803 case, Marbury v. Madison, that every law student has studied at length, the role of the court is simple. It is to ``say what the law is.'' It is not to write the law. It is not to rewrite the law. It is to ``say what the law is,'' what did the legislature pass, when it needs interpretation. It is not about writing it. It is not about the mobility, that the law isn't with a capital ``l,'' and we can move it here based on these factors that we think are different with the cultural environment and we may have to move it over here in 10 years because the environment has changed and the law changes with it. If the law changes, it is by legislatures. It is not by the court. That is why Marbury v. Madison said the law is to ``say what the law is,'' not to rewrite it. In Federalist 78, Alexander Hamilton wrote this--law students study this as well: Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatsoever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. The court is to have judgment. A judge is to have judgment, not write the law. In Hamilton's view, judges could be trusted with power because they would not resolve divisive social issues--that is for the legislature to do--short-circuit the political process, or invent rights which have no basis in the text of the Constitution. I have long believed the judicial branch preserves its legitimacy with the public and has its strength with the public through refraining from action on political questions. This concept was perhaps best expressed by Justice Felix Frankfurter, a steadfast Democrat appointed by President Franklin Delano Roosevelt. Justice Frankfurter said this: Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures. Primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress. That is to quote Justice Frankfurter. I recall a private meeting I had with then-Judge Roberts, before assuming the position of Chief Justice, when he had been nominated to be Chief Justice--a wonderful Justice on the Supreme Court who then- Senator Obama voted against. Senator Obama voted against the confirmation of John Roberts, voted against the confirmation of Samuel Alito to the Supreme Court based, I believe, primarily on judicial philosophy because they believed in strict constructionism; that a court was to be a court and not a legislative body. Then-Senator Obama voted against both John Roberts and against Samuel Alito. In my meeting with Judge Roberts, he talked about baseball and about the courts and his analogy to baseball. He gave a great analogy, I thought, when he said: It is a bad thing when the umpire is the most watched person on the field. Imagine that, watching a baseball game and the thing you are watching the most is the umpire because the umpire is both umpire and a player. How confusing, how difficult, and what a wrong way to have a game. He, of course, Judge Roberts, was alluding to the current situation in American governance where the legislature can pass a law, the executive sign it, but everybody waits, holding their breath to see what the courts will do with it. Unfortunately, Judge Sotomayor seems to me far too interested in being both an umpire and active player. Prior to becoming a Federal judge, Sonia Sotomayor spent more than a decade on the board of directors of the Puerto Rican Legal Defense and Education Fund. A September 25, 1992, article in the New York Times referred to Judge Sotomayor as ``a top policy maker'' on the group's board. In 1998, the group brought suit against the New York City Police Department, claiming that a promotion exam was discriminatory because the results gave a disproportionate number of promotions to White police officers. As a judge on the appellate court, Judge Sotomayor was involved in a nearly identical case, Ricci v. Destefano, involving a group of White firefighters seeking promotion in New Haven, CT. City officials in New Haven decided to void the results of the exam because it had a disparate impact on minorities. Judge Sotomayor agreed with the city's decision, and we are now waiting on a ruling from the Supreme Court. Sotomayor's work as an activist challenging the New York Police Department's test results in 1998 is evidence that she may have allowed personal biases to guide her decision to rule against New Haven firefighters. I hope we can find out more in her confirmation interviews and in her hearings. But I am also troubled by the number of amicus briefs filed by the fund in support of what are radical positions on pro- abortion issues during the time Sotomayor was on this same board. Six briefs were filed taking positions outside of the mainstream in support of abortion rights in prominent cases such as in Webster v. Reproductive Health Services or in Ohio v. Akron Center for Reproductive Health. In that Ohio v. Akron case, the Court upheld Ohio's parental consent laws. These are laws that say, before a minor can have an abortion, they must have parental consent. Joining the majority opinion were moderate Justice Sandra Day O'Connor and liberal Justice John Paul Stevens. Yet the group that Judge Sotomayor was associated with filed a brief opposing this parental notification law, saying ``any efforts to overturn or in any way to restrict the rights in Roe v. Wade,'' they opposed any restriction, even allowing parents of a minor child to have parental notification that their child was going to go through this major medical procedure. She took a stand opposed to that parental right that most of the American public, 75 percent of the American public supports; that parental right of that notification. She opposed it. According to the New York Times: The board monitored all litigation undertaken by the fund's lawyers, and a number of those lawyers said Ms. Sotomayor was an involved and ardent supporter of their various legal efforts during her time with the group. I am also deeply concerned that Judge Sotomayor will bring this radical agenda to the Court. Judge Sotomayor has given speeches and written articles promoting judicial activism. The President who appointed her said judges should have ``the empathy to recognize what it's like to be a young teenage mom; the empathy to understand what it is like to be poor or African- American or gay or disabled or old,'' and that difficult cases should be decided by ``what is in the Justice's heart.'' While I think it is admirable to have empathy, a Justice and a person who sits on the bench is to decide this based on the law. That is what they are to decide it upon, not an interpretation or rewriting of the law. The President's view of the role of a Judge on the Court is not shared by Justices Marshall or Frankfurter, nor is it the view of Hamilton and the drafters of the Constitution. The oath that all Supreme Court Justices take says: I will administer justice without respect to persons, and do equal right to the poor and to the rich. That is the oath they take. The Justice is to be blind and just to hear the case and decide it based on the facts and what the law is and say what the law says, not what they wish it to be nor what is in their heart. It is to be blind and it is to hold these and to weigh these equally and fairly to determine the truth and to determine the outcome in the case. The President is asking his nominees to ignore, in essence, their oath. I fear Justice Sotomayor is all too eager to comply. In her writings, Judge Sotomayor has rejected the principle of impartiality and embraces a rather novel idea that a Judge's personal life story should come into play in the courtroom. In a 2001 speech at the UC Berkeley Law School, which was later published, Judge Sotomayor dismissed the idea that ``judges may transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law,'' by saying that ``ignoring our differences as women or men of color we do a disservice both to the law and society.'' I am not sure why Judge Sotomayor believes the law is somehow different when interpreted by people of a different gender, but I think Judge Sotomayor is absolutely wrong and we do a disservice to law and society when we don't transcend our personal sympathies and prejudices and base our decisions upon the facts and the law. Judge Sotomayor's view is contrary to the words engraved upon the Supreme Court's entrance which state ``equal justice under law.'' In the same 2001 speech, Judge Sotomayor made the following astonishing statement: Personal experiences affect the facts judges choose to see. . . . I simply do not know what the difference will be in my judging. But I accept there will be some. When Judge Sotomayor says that ``personal experiences affect the facts judges choose to see,'' does that mean she is willing to ignore other facts? Is justice blind or is it actually interpreting and seeing which facts to pick and which facts not to pick? The role of judges is to examine all the facts of a particular case, not solely the facts that deliver a desired outcome or solely the facts that the judge can relate to based on his or her personal biography. It is dangerous for this body to consent to elevating a judge who believes that justice equates with picking winners and losers based upon his or her own personal biases. That is not judging. I hope my colleagues understand this 2001 speech at Berkeley was not an isolated incident. In a 1994 speech, Judge Sotomayor used language nearly identical to that of the 2001 speech, saying judges should not ignore their differences as women and people of color and to do so would be a disservice to the law and society. In 1994, Judge Sotomayor discussed the impact that more women on the bench will have on the ``development of the law.'' ``Development,'' like this is about the writing of the law. If that is the case, that is done by the Congress not by the courts. Judges do not make law, and under no circumstances should they be under the impression they do. Judge Sotomayor sees judges as lawmakers, as both umpire and player. In the 2005 appearance at Duke Law School, she said: ``The court of appeals is where policy is made.'' I wonder how Alexander Hamilton would respond. I think he would wholly disagree with that interpretation. Unfortunately, Judge Sotomayor's writings and statements lead me to believe that she is a proponent, a clear proponent, of an activist judiciary. I cannot support her nomination. I will vote no when it comes before the full Senate. I ask unanimous consent that her speech in the Berkeley La Raza Law Journal be printed in the Record.

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

Mr. BROWNBACK

Mr. BROWNBACK. Madam President, first, I start with acknowledging a couple of individuals. First and foremost, the Senator from Iowa, Senator Harkin, has orchestrated and navigated this matter to bring it forward. I think everybody owes a deep debt of gratitude to him and his staff for getting this done. This is a significant day and a significant event. It doesn't happen without a lot of effort. It is going to be one of those days and places and times that goes down in history in this body. It is important. It is important to us. It is important to the Nation, and it is important that it be clearly acknowledged, and it is going to get done. I thank my colleague from Iowa for getting this organized and moving it forward. I also thank, obviously, the majority leader for setting this time up, the Republican leader, and our colleagues, particularly Senator Levin, who is a sponsor, and on our side, Senator Cochran, Senator Bond, and many others. I ask unanimous consent at this time that Senator Corker be added as a cosponsor to the resolution.

Mr. BROWNBACK. Also, our staffs worked very hard on this. I have to thank LaRochelle Young on my staff, who has worked hard on this issue. She has been dedicated to get this through and forward. I thank her for her great work. It is my experience that apologies are tough to do. They are tough as individuals, tough as groups, and tough as nations. When this issue would come up, a lot of people would say: Yes, I acknowledge that happened, but I didn't do it or that happened a long time ago, so can't we move past it? Yet my experience has been that until you actually acknowledge the wrong that has been done and say, ``I did this and it was wrong and I apologize,'' there remains a barrier there--something you cannot get over, no matter how many words you put around it, no matter how much feeling may be there, until you actually say it. That is why apologies are tough, because they are hard to do when they get right at the core of the issue. They get at the core that a wrong was done. What we are saying in the Senate today is that a wrong was done-- a wrong of slavery was done by the Federal Government of the United States, a wrong of segregation was done by the Federal Government of the United States. We acknowledge that. We say it was wrong and we ask for forgiveness for that. It doesn't fix everything, as Senator Harkin pointed out but it does go a long way toward acknowledging it and it gives us the ability to move to the next step in building a more perfect union, and do the things that Martin Luther King would talk about, where you can have a colorblind society. It is significant and important that we do it. I think in my own personal experiences in this category, learning about William Wilberforce, from the British Parliament, who worked on ending the slave trade in Great Britain. It was a key issue for them to get over that hurdle. It took years and they got it done. I also acknowledge friends of mine, in current iterations, who traveled across America with a kettle. This kettle was a kettle that former slaves used to cook in. They would do the evening cooking for their meals in it. This was kind of the gathering place for the slaves--this gentleman's ancestors' kettle. He took it around the country and he would talk about them getting together and using it for a meal. After the meal was done, they would clean the kettle, and it was big enough that they would actually huddle under the kettle and pray. They would pray for their freedom. That was the kettle tour. Their aspiration and hope for so many years was to be free. They were taking the kettle around the country as a physical symbol of the yearning for freedom that the people had. The slaveowners would get mad about it, but they could not hear them as they would mutter their silent and soft prayers under the kettle. I have seen many different physical representations of what has taken place. I grew up in eastern Kansas, where the fight started about whether my State would be a free State or a slave State. In the Nebraska-Kansas compromise that this body crafted, Nebraska was supposed to be a free State and Kansas a slave State because Iowans would come across to Nebraska and populate that. Missourians were closer to Kansas and they would populate Kansas and be a slave State and maintain that balance of power. That is also something we should apologize for. John Quincy Adams called slavery the ``original sin of the United States,'' for which we are asking forgiveness today. And in that situation developed my part of eastern Kansas--known as Bleeding Kansas because while people did come across who were proslavery, other individuals organized from the Northeast to populate Kansas, and they were abolitionists and they came with a desire to fight for freedom. There were many irregular battles that took place, guerilla warfare, the Battle of Osawatomie, where my mother grew up, the burning and sacking of Lawrence, and all this back and forth about slavery taking place. Just before the Battle of Osawatomie, John Brown said--and he was in that fight, and one of his sons was killed in it--there will not be peace in this land until the issue of slavery is resolved. He was right. Less than 10 years later, the Civil War broke out over the issue of slavery. Today in the Senate, we pledge to move beyond this shameful period, and we officially acknowledge and apologize for the institution of slavery in this country--what many refer to as the original sin of America--which was once woven into the fabric of our Nation, and for the Federal laws we passed in this Chamber and upheld by the highest Court in our land, the Supreme Court. My colleague has already referred to some of those laws, but I want to refer passingly to several as well, laws such as the Fugitive Slave Law, first approved on February 12, 1793, and subsequently amended in 1850 and 1864, which sought to punish those persons who dared to escape the brutality of slavery and those who helped to free individuals in bondage. Not only would a suspected runaway slave be dragged into court, but they would be unable to say a word on his or her behalf, not one word. They weren't allowed to say a single word. My colleague mentioned the Missouri Compromise of 1820, which was crafted as a solution to the ever-increasing and volatile dispute over the question of slavery in the United States. In 1819, when Missouri sought statehood, the question was whether Missouri would be admitted to the Union as a slave State or a free State. This set off an intense debate between northern and southern legislators. Missouri's ratification would upset this delicate balance between slave States and free States in the Senate. In order to keep the already tenuous balance, Henry Clay worked out a compromise consisting of three parts: Maine would separate from Massachusetts and be admitted as a free State, Missouri would enter the Union as a slave State, and the remaining territories of the Louisiana Purchase would be closed off to slavery. However, unrest around the brutal practice of slavery continued until further compromises came forward. Additionally, a compromise to outlaw the slave trade, but not slavery, in the District of Columbia--where we are today--was enacted to facilitate the retrieval of slaves who had run away to the North. While this compromise did little to satisfy the antislavery movement, it did temporarily preserve the Union, and many historians refer to this period as the ``calm before the storm.'' And then my State enters--Bleeding Kansas. As the United States continued to expand, the very fabric of our Nation was about to be torn in two regarding a people's right to be free. In the midst of this debate was my great State of Kansas. On May 30, 1854, the Kansas-Nebraska Act became law. Frederick Douglass deemed the new law ``an open invitation to a fierce and bitter strife,'' and those words proved to be very prophetic. Shortly after the Kansas-Nebraska Act became law, there was a rush to settle Kansas. As I mentioned, both proslavery and abolitionists alike were determined to settle Kansas for their cause. The turmoil continued. We had bloody balloting, we had stolen elections taking place, until we did finally enter the Union as a free State. There were passions surrounding that which ignited even on the Senate floor, passions that abolitionist Senator Charles Sumner delivered a rousing speech on the Senate floor called ``The Crime Against Kansas,'' accusing proslavery Senators of siding with slavery. In apparent retaliation, Congressman Preston S. Brooks attacked and beat Charles Sumner senseless with a cane--an issue of some high memory on this floor even today. Following on June 2, 1856, there was retaliation. The Battle of Black Jack, in my State, ensued, which is widely believed to be the first conflict between free State supporters led by John Brown and the proslavery supporters, as well as one of the first battles of the Civil War. These things continued until my State came into the Union. I do wish to conclude at this point in time with noting just the importance of apologies. As I mentioned at the outset, they are difficult and they are important and they are hard to do and they are significant. Today, we right that wrong of not offering an apology previously. Today, we move forward in a spirit of unity. Today, we move toward a true cleansing of our Nation's past sins rooted in racism. There may be those who consider an apology insignificant or purely for symbolic means. I completely disagree. In 1988, Congress apologized for the internment of Japanese Americans held during World War II. When asked in an interview 20 years after the apology was signed to give thoughts on the matter, Aiko Yamamoto, who at the time of the interview was 72, said: ``It was the apology that mattered.'' Similarly, Norman Mineta, former Congressman and U.S. Secretary of Commerce and of Transportation, who was also interned during World War II, said of the apology: ``It will always mean more to me than I can ever adequately express.'' However, the cleansing effects of an apology are not only limited to those who are owed an apology but to those giving the apology as well. It is the acknowledgment that a terrible wrong was committed--never to be committed again--and a willingness to now, through the process of reconciliation, work toward a brighter future for all people unburdened by the difficulties of the past but uplifted by the promises of the future--a future where our destinies are inextricably linked together. Although this anthem is correctly titled ``The Negro National Anthem,'' the final stanza of its words so eloquently written by James Weldon Johnson not only rings true for the African-American community but for all America. God of our weary years, God of our silent tears, thou who hast brought us thus far on the way; thou who hast by thy might, led us into the light, keep us forever in the path, we pray. Lest our feet stray from the places, our God where we meet thee, lest our hearts, drunk with the wine of the world, we forget thee; shadowed beneath thy hand may we forever stand, true to our God, true to our native land. May we, with this apology, move forward into the light of unity, united under a common purpose, linked together in a singular humanity. I am delighted that we are doing this today. Madam President, I yield the floor.