Robert Byrd

Mr. BYRD

Mr. BYRD. Mr. President, before the distinguished Senator from New Mexico leaves the floor, I say to the Senator from New Mexico, he has made a very important observation. I am going to vote for this bill. But we do not have a CBO estimate of the cost. We have no estimate of the cost. There is an estimate by the Immigration and Naturalization Service. Now, that may be off a great deal or it may not be off a great deal. I think it is important to keep in mind what the distinguished Senator from New Mexico has pointed out. There is a great difference between authorizations and appropriations. And it is the money that counts. Cicero, that great Roman orator, said: ``There is no fortress so strong that money cannot take it.'' So it is the money that counts. And the Senator has made an important observation. I made that observation, too, early on. And I don't know what the estimate of the cost is going to be in here. We have certain estimates, the $1.1 billion for the first year, and the $3.2 billion--or something like that--$3.2 billion for 3 years. But those are estimates. They are by the Immigration and Naturalization Service. And, of course, that is not a great bank to put your money into when the INS estimates it. We have seen that agency fall on its face so many times in recent years. But, in any event, I thank the Senator.

Mr. BYRD. Yes. I would be glad to yield.

Mr. BYRD. Well, the Senator is correct. There will be a lot of eyes looking toward the Senator from New Mexico and toward me, and the other 27 members of the Senate Appropriations Committee, when it comes time to put the money on the barrelhead. But having said that, I am going to vote for this bill. I am still going to seek a CBO estimate of the cost because I think that would be helpful in the coming days as we proceed to the conference and then to the conference report, and so on. Amendment No. 3161 (Purpose: To revise provisions relating to the compliance by institutions and other entities with recordkeeping and reporting requirements with respect to nonimmigrant students and exchange visitors)

Mr. BYRD. Mr. President, the opportunity to seek a quality higher education has long enticed men and women to leave their homelands to travel to America. We are, by and large, a generous Nation when it comes to providing an education to foreign citizenry. Indeed, American colleges, universities, and technical schools have opened wide their doors to students from foreign lands. And all levels of schooling are available to foreign nationals of every age--from preschool to post-graduate work, from public grade schools to private technical-training institutions. In fact, foreign students have proven to be a lucrative source of revenue for U.S. educational institutions. Private-sector analysts estimate that foreign students contribute between $9 billion and $13 billion to the U.S. economy every year. Any number of marketing efforts are made by colleges and universities to recruit foreign students, whose tuition fees serve to bulk up college budgets. As a result, we have opened our borders to a stream of foreign students with precious little oversight of their movement through the American educational stream. According to the INS, there are currently 2 million foreign students admitted to study in this country--649,000 of whom were admitted just last year. These include nuclear engineering scholars, biochemistry students, and pilot-trainees, who have access to sensitive technology, training, and information. Yet while our schools have been training would-be pilots in the art of flying airliners, we have been asleep at the switch! There has been too little accountability, and too few checks, largely because oversight has proven too burdensome and costly for the government and the U.S. educational industry. The lax government oversight of these student visa beneficiaries was underscored by the fact that three of the September 11 hijackers were awarded student visas--not to mention the fact that the INS was still processing the student visa applications for two of them 6 months after they had crashed two planes into the World Trade Center towers and gone on to meet their eternal destiny. Clearly INS has not been up to the job of monitoring foreign students, and, in its current condition, placing new burdens on that agency alone is no solution. Therefore, as we look at our Nation through the prism of the new realities of terrorism, we must reconsider ways to involve those who have the best opportunity to prevent attacks. We need the assistance of our educational institutions. In recent years, efforts to impose more stringent reporting requirements on schools have faltered because educational institutions have been reluctant to get into the job of monitoring foreign students. In fact, colleges and universities have lobbied heavily against such requirements, and the current lack of a national program to monitor foreign students indicates the effectiveness of that lobbying effort. The pending legislation takes some important steps toward closing many of the loopholes in our foreign student policies that could be exploited by a potential terrorist. If the student monitoring provisions in this bill are to be successful, however, we must ensure the participation of our schools. These institutions are best suited to inform the INS and the State Department as to which students have been accepted to attend a school, whether they actually show up for class once they enter the country on a student visa, and whether they continue their classes or merely drop out of sight after checking in with the admissions office. Monitoring the student via program requires a partnership between the government and all colleges, and technical schools that accept foreigners. The pending bill gives the INS and the Secretary of State too much discretion in determining whether or not these educational institutions should be penalized. Section 502(c) of this bill reads: Effect of Failure To Comply.--Failure of an institution or other entity to comply with the record keeping and reporting requirements to receive nonimmigrant students or exchange visitor program participants under section 101(a)(15) (F), (M), or (J) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15) (F), (M), or (J)) or Section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372), may, at the election of the Commissioner of Immigration and Naturalization or the Secretary of State, result in the termination, suspension, or limitation of the institution's approval to receive such students or the termination of the other entity's designation to sponsor exchange visitor program participants, as the case may be. What's more, in section 502 of this bill, the ``periodic reviews,'' which the INS Commissioner, Secretary of State, and Secretary of Education are required to make to determine whether institutions are complying with this legislation, are not defined. A ``periodic review'' could mean every 5 years or it could mean every 20 years or it could mean every 50 years. That is very soft language. My amendment would require reviews by the relevant agency heads at least once every two years. Further, if they found that U.S. educational institutions were materially not complying with the reporting requirements in this bill, my amendment would require the relevant agency heads to terminate or suspend, for at least one year, the right of those institutions to accept foreign students. This amendment makes clear the serious concern about this Nation's ability to help foreign students while also protecting our homeland. Educational institutions are essential partners in our efforts to ensure that foreign students really are ``students'' with no other agenda but learning. I thank Senators Kennedy, Brownback, Feinstein, and Kyl for their support of this amendment. I hope that the Senate will adopt it. Mr. President, I have made my statement prior to calling up the amendment. I ask unanimous consent that the time I have consumed in reading my statement come out of my time on the amendment.

Mr. BYRD. I yield back the remainder of my time. I ask unanimous consent that the vote on this amendment occur immediately after the vote on the student monitoring amendment.

Mr. BYRD. Mr. President, I thank the Senator for his statement.

Mr. BYRD. Mr. President, if it is agreeable with Senator Kennedy and the other cosponsors of the amendment, I will yield back the remainder of my time on the amendment. Some Senators have been promised that there will be no votes until about 7:15 p.m. If it is agreeable with all the cosponsors, I will be happy to ask unanimous consent that the vote on this amendment occur upon the expiration of all time on the amendments and further statements can be made in regard to the bill so that the votes would be stacked for beginning, say, around 7:15 p.m.

Mr. BYRD. Mr. President, in my testimony before the Immigration Subcommittee last week, I spoke about the safety of the American people and how that safety within their own borders often takes a back seat to such issues as commerce and diplomacy. The visa waiver program, I believe, is a clear example of what I was talking about. The program allows 23 million citizens from 28 countries to enter the United States without first obtaining a visa from a U.S. consulate abroad. This program, by eliminating the visa requirement and the subsequent State Department background check, expedites travel and commerce, but waives the usual first step by which foreigners are screened for admissibility when seeking to enter the United States. Consequently, in a 1999 study, the Justice Department's Office of the Inspector General found that terrorists, criminals, and alien smugglers have attempted to gain entry into the United States through the waiver program. The inspector general's office also commented on the danger of stolen passports from visa waiver countries being used by terrorists to enter the United States without a visa. It has been noted that in 1992 one of the conspirators in the 1993 World Trade Center bombing tried to get into the United States through the visa waiver program with a fake Swedish passport. Fortunately, he was caught, and a search of his luggage revealed bomb-making instructions. In recent years, tens of thousands of blank passports from visa waiver countries have been stolen. These passports are sold on the black market to terrorists, criminals, and anyone else who may wish to avoid a State Department background check before entering the United States. While only countries deemed ``low-risk'' are allowed to participate in the visa waiver program, and they must meet certain qualifications, the Attorney General is only required to review these countries' participation once every 5 years. Moreover, the Attorney General is not required to consider the efforts to prevent theft when determining whether to accept the country into or allow the country to continue to participate in the visa waiver program. My amendment would require the Attorney General to review the countries that participate in the visa waiver program at least once every 2 years to help ensure that those countries continue to meet the programs's standards, and it also requires the Attorney General to remove countries from the program that do not report stolen passports. I am hopeful that my amendment will foster the kind of review that will result in greater scrutiny of this program and of those who enter the country through it. This is a commonsense amendment, and I hope that Senators will support it. I have discussed it with Senator Kennedy, and he in turn has discussed it with the other authors of the bill and I hope that all Senators will support the amendment. I believe it to be a good one, a very worthwhile amendment. I yield back the remainder of my time.

Mr. BYRD. I think it will work out all right if we just proceed. I ask unanimous consent, Mr. President, that the vote on this amendment occur at the expiration of the time on all the amendments with the yielding back of that time and yielding back or making final statements on the bill, if that is agreeable with the cosponsors.

Mr. BYRD. Mr. President, I ask for the yeas and nays on the pending amendment.

Mr. BYRD. Mr. President, I send to the desk the second amendment, and I ask that the clerk read the amendment.

Mr. BYRD. Mr. President, I yield such time as I may consume from my time on the amendment.

Mr. BYRD. Mr. President, I yield myself such time as I may consume of the time allotted to me on the amendment.

Mr. BYRD. Mr. President, as we strive to respond to the new challenges of terrorism, we must be cognizant of the essential component of public trust. Without the confidence of the people, our efforts to improve domestic security, including our efforts to tighten our border defenses, cannot succeed. To help ensure that we do not undermine the public's confidence in our efforts to secure our borders, we must set realistic mandates--that is, guidelines and time frames that are measurable and achievable. This bill, in two separate instances, sets an October 26, 2003, deadline for the Attorney General and the Secretary of State to meet two separate mandates. Section 303(b)(1): Not later than October 26, 2003, the Attorney General and the Secretary of State shall issue to aliens only machine- readable, tamper-resistant visas and travel and entry documents that use biometric identifiers. Section 303(b)(2): Not later than October 26, 2003, the Attorney General, in consultation with the Secretary of State, shall install at all ports of entry of the United States equipment and software to allow biometric comparison of all United States visas and travel and entry documents issued to aliens, and passports issued pursuant to subsection (c)(1). A third October 26, 2003, deadline applies to visa waiver countries issuing to their nationals machine-readable passports that are tamper- resistant and that incorporate biometric identifiers. I question whether the Attorney General and the Secretary of State will be able to meet these deadlines. When I asked one of the authors of this bill, Senator Kyl, about this deadline during the floor debate on Monday, Senator Kyl said: The Senator from West Virginia raises a good question with respect to those deadlines. Frankly, on two of the three, there is no good answer. The Senator is absolutely correct about that. . . . As to precisely how long it will take to get those [systems] online, there is not a good specific answer, nor is there an answer as to when we can have the interoperable system developed, which is one of the central features of the bill. These dates are not based on the availability of technology, or even projections about the availability of technology. Nor are they based on any realistic expectation about the availability of funding. As far as I can tell, these deadlines are based solely on the fact that the USA PATRIOT Act was signed into law on that same day in 2001. I appreciate the notion that, without deadlines, it is difficult to press the agencies to act expeditiously. But, when this deadline comes and goes, and the Attorney General and the Secretary of State have not met these goals, the public will have reason to become disillusioned with our efforts to tighten our border defenses. Considering the public's current skepticism regarding the INS and its ability to safeguard our borders, I suggest that we be careful about committing our border defense agencies to deadlines that they cannot meet. Under the regular appropriations process, Congress cannot make the necessary funding available to the agencies before October 1, 2002, and that assumes that all 13 appropriations bills are completed on time, by the end of the fiscal year. Even if the bills are completed on time, it could still take months before funds are released to the agencies to meet these mandates. With the support of Senator Kennedy, I am offering an amendment that would move the October 26, 2003, deadlines back by one year to October 26, 2004. This amendment allows the Congress more time to appropriate the necessary funds, and help to ensure adequate time for the State and Justice Departments to meet these deadlines. Our efforts to tighten our border defenses will require the long-term support of the American people. It is an effort that will require the trust and confidence of the American people. We should not place that trust at risk by setting deadlines we know to be unrealistic. So it is for that reason Senator Kennedy and I and the other authors of this amendment have worked together to fashion this amendment. I urge adoption of this amendment. I yield the floor.

Mr. BYRD. Mr. President, I am happy to yield the remainder of my time.

Mr. BYRD. Mr. President, I move to reconsider the vote.

Mr. BYRD. Mr. President, I send an amendment to the desk.

Mr. BYRD. Mr. President, I yield myself such time as I may require.

Mr. BYRD. Mr. President, the border security bill before the Senate requires ships and aircraft entering the United States to provide to our immigration officials a manifest of all passengers and crew on the vessel before they arrive in U.S. ports. If a commercial carrier fails to do so, this bill imposes on the carreer a $300 fine for each person not mentioned, or for each person incorrectly identified, in the manifest. This penalty is wholly inadequate in my judgment. It is really a slap on the wrist for an airline or sea carrier that fails to provide important information to our immigration officials. This amendment would increase this penalty to $1,000 for each person that a commercial carriers fails to list accurately on the passenger manifest. Airlines and sea carries must be more than a passive conduit for information between ticket agents and our border defense agencies. We need the commercial carriers that bring people to this country to be partners in identifying persons who might have suspicious travel documents or travel plans. Increasing the fine for noncompliance is one way to emphasize to commercial carriers that they have an important role in border security. This amendment has the support of the managers of the bill and I urge my colleagues to support it. I yield the floor.

Mr. BYRD. Mr. President, I yield the remainder of my time on this amendment.

Mr. BYRD. Mr. President, will the distinguished Senator yield for a question prior to proceeding?

Mr. BYRD. Mr. President, I move to reconsider the vote on the previous amendment.

Mr. BYRD. Mr. President, before we proceed to this series of votes, I would like to make a few remarks concerning the bill. I believe there is a certain amount of time on the bill. Is there?

Mr. BYRD. Mr. President, in my long career of serving in various and sundry legislative branches, I have from time to time been awarded the honor of being the ``legislator of the year'' in connection with something. Let me say that as one who has served now in my 50th year in Congress this year, and having served as majority leader in this body during the years 1977, 1978, 1979, and 1980, and again during the years 1987 and 1988, and also having served as minority leader over a period of 6 years, and having served in the leadership in the Senate for 22 years, including my stint as majority whip and my stint as secretary of the Democratic Conference, I have had occasion to note some very successful and outstanding legislators. I would include among the most outstanding of those legislators Senator Kennedy. The late Senator Henry Jackson was another one of the outstanding legislators with whom I served. He was responsible for bringing a great deal of legislation to the floor dealing with energy, with the environment, and on various and sundry other matters. He was an outstanding legislator. Senator Kennedy is one who has proved to be an outstanding chairman of the committee. I think Senators will agree with me in observing that when Senator Kennedy comes to the floor with a bill, especially if it is a bill that has been reported by his committee, a committee which he chairs, or by a committee on which he sits, he is always prepared. He has done his homework, and he makes a very forceful expression. He makes a very forceful expression of support of the managers of the amendment thereon. He is a formidable opponent of one who opposes a bill. Senator Kennedy brings to the floor a formidable opponent of any Senators who offer amendments in opposition thereto. He is a well- rounded legislator in that his experience, and his knowledge of the subject matter of the legislation which he promotes, is, indeed, remarkable. As far as I am concerned, he is an outstanding legislator in the 50 years in which I have served in Congress. Senator Kennedy and I have not always been together on matters. We have been opponents in some instances. We have not necessarily, in the early days, held each other in terms of endearment. But we have passed through those years and in the subsequent years-- especially in the years when I served as majority leader, and the first time I served as majority leader in 1977, during those years, and in subsequent years, Senator Kennedy has been one of my most supportive friends and fellow Senators. And I have counted his support as invaluable, particularly when I was majority leader. As the majority leader or the majority whip, sometimes one looks around and wonders where the troops are. And there are times when we look back over our shoulders and find that the troops are not necessarily there. But Senator Kennedy was always very supportive of me. There were times when he perhaps could not vote with me or could not exactly support a particular amendment of mine, but he was always most courteous and most considerate to me. As we close the debate on this bill, I want to say once more, as I have said before, that Senator Kennedy is a Senator who could well have graced the Senate at any moment of the Senate's long history, dating back to March 4, 1789. He would have been a worthy protagonist or antagonist, whatever the case might have been. I have learned to respect him and appreciate him as the years have come and gone. I have learned to appreciate him and respect him more and more. So, Mr. President, I take this occasion to thank Senator Kennedy for his courtesies during this debate. He invited me to testify before his Immigration Subcommittee last week. He visited my office several times over the last 4 months to listen to my concerns. He has always been very gracious to me, and I thank him for that. I thank the other proponents of this legislation--Senator Brownback, Senator Kyl, and Senator Feinstein. They have all been very fine authors of amendments. In particular, I think with respect to this bill, they have done an excellent job. They have been very kind to me, and they have been considerate. I want to take this occasion to thank them for their work on the bill. No one could be more patriotic than these Senators. No one could pay more attention to their duties in the Senate, their duties to their constituents whom they represent. This is a bill that may still have some flaws in it. No piece of legislation, I would say, ever passes the Senate that is perfect, but they certainly have done their best in trying to improve it as we have gone along. I thank them all for the courtesies they have extended to me and the support they have expressed for these amendments I have offered. So let me say, again, that with one of these Senators I have served since November 1962. And Senator Kennedy well understands my interest in the institution of the Senate. To me, that is why I am here today, because of my interest in this institution and the Constitution. That is why I am here. I did not have to run last time to put bread and butter on my table. I could have retired and probably earned a bigger check in retirement. Since I have been paying into the retirement fund now for 50 years, this year, I could probably have earned a bigger check in retirement than I will have earned as a Senator. But I am here to defend this institution. That is the only reason I am here. That is the only reason. I could have been better off if I had retired. Perhaps somebody would have had pity on me and asked me to serve on some board, and I could have raked in a little additional money. But that is neither here nor there. I chose to serve here. This has been my career. I have loved this Senate from the first day I walked into it. And so I am proud to serve in it. The only reason I am here is that I believe in the Senate. I am not here because of any particular legislation. As a matter of fact, I am here because I love the Senate and want to do what I can to preserve the Senate prerogatives. I believe there are three separate and distinct coordinate branches of Government. I believe that the legislative branch is the branch of the people. I think it is the people's branch. I believe that the Senate is the premier institution, the premier legislative institution--the U.S. Senate--in the world today. And there have been many senates. Perhaps the next greatest of all was the senate of the Roman people. I am proud the people of West Virginia have seen fit to send me here, and send me back from time to time, and overlooked the warts and all in my makeup, politically and otherwise. But I reverence the Senate, honor it, and respect all Members of the body. It doesn't make a difference whether they are Republicans or Democrats or Independents; I respect them. We may not agree, but they are Senators. They are my equal any day. They are entitled to their viewpoint as much as I am entitled to mine. So having said that, let me say, far too often Members of this body are willing to give up their right to debate and to amend legislation. I am pleased that at least some public debate has been generated on this bill and that the right of Senators to offer amendments was respected. I think the end product is a better piece of legislation than it was heretofore. With regard to the amendment I offered on the importation of goods, especially Chinese goods, that are made using forced labor, I, of course, have determined not to press to include that amendment in this bill. But I continue to believe that the Congress needs to pass legislation to prevent goods made in foreign prisons and detention camps from crossing our borders. We also have a responsibility to protect our businesses from this unfair and reprehensible trade practice. I expect to raise the issue again at some point on some bill because much more needs to be done to discourage this blatant violation of our trade laws. Senators should also be aware that we still do not have a cost estimate of this bill from the Congressional Budget Office. The INS estimates that the bill will cost $1 billion in the first year and $3.2 billion over 3 years, but those estimates likely underestimate the true costs. It is very well to authorize these funds--and I intend to vote for the bill--but this bill will require the appropriation of funds and the support of its proponents, and the support of the administration, for those appropriations if its provisions are to be implemented. Again, I thank Senators Kennedy, Brownback, Feinstein, and Kyl for their interest in improving our Nation's border defenses. I thank them and I love them. I salute them for the work they have done in this respect. I hope we can maintain the bipartisan support we have seen on this bill when it comes time to appropriate the funds necessary to implement these provisions. Mr. President, with that, I yield the floor.

Mr. BYRD. Mr. President, the distinguished Senator honors me by calling on me to repeat the lines of the poem by Joseph Malins titled ``A Fence or an Ambulance.'' I am not sure I am really up to it at this point in the day. I am not sure I can do it on this short notice, but I will certainly try. It will not be the first time I have failed on a poem. Occasionally I do fail. Let me think for a minute. Perhaps I could do that. ``Twas a dangerous cliff, as they freely confessed, Though to walk near its crest was so pleasant; But over its terrible edge there had slipped A duke and fall many a peasant. So the people said something would have to be done, But their projects did not at all tally; Some said, ``Put a fence around the edge of the cliff,'' Some, ``An ambulance down in the valley.'' But the cry for the ambulance carried the day, For it spread through the neighboring city; A fence may be useful or not, it is true, But each heart became brimful of pity For those who slipped over that dangerous cliff; And the dwellers in highway and alley Gave pounds or gave pence, not to put up a fence, But an ambulance down in the valley. ``For the cliff is all right, if you're careful,'' they said, ``And, if folks even slip and are dropping, It isn't the slipping that hurts them so much, As the shock down below when they're stopping.'' So day after day, as these mishaps occurred, Quick forth would these rescuers sally To pick up the victims who fell off the cliff, With their ambulance down in the valley. Then an old sage remarked: ``It's a marvel to me That people give far more attention To repairing results than to stopping the cause, When they'd much better aim at prevention. Let us stop at its source all this mischief,'' cried he, ``Come, neighbors and friends, let us rally; If the cliff we will fence we might almost dispense With the ambulance down in the valley.'' ``Oh, he's a fanatic,'' the others rejoined, ``Dispense with the ambulance? Never! He'd dispense with all charities, too, if he could; No! No! We'll support them forever. Aren't we picking up folks just as fast as they fall? And shall this man dictate to us? Shall he? Why should people of sense stop to put up a fence, While the ambulance works down in the valley?'' But a sensible few, who are practical too, Will not bear with such nonsense much longer; They believe that prevention is better than cure, And their party will soon be the stronger. Encourage them then, with your purse, voice, and pen, And while other philanthropists dally, They will scorn all pretense and put up a stout fence On the cliff that hangs over the valley. Better guide well the young than reclaim them when old, For the voice of true wisdom is calling, ``To rescue the fallen is good, but 'tis best To prevent other people from falling.'' Better close up the source of temptation and crime Than deliver from dungeon or galley; Better put a strong fence round the top of the cliff Than an ambulance down in the valley.''