Robert Byrd

Mr. BYRD

Mr. BYRD. Mr. President, I thank the Chair, and I thank Senator McConnell and also my own leadership for the kindness in arranging for me to speak at this time. (The remarks of Mr. Byrd pertaining to the introduction of S. 515 and S. 514 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

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

Mr. BYRD. Actually, the question will be very easy to answer. But for the moment, I must say to the very distinguished Senator that this is one Senator who is not at all surprised at what he found. I can remember when we had Mr. Bremer before the Senate Appropriations Committee to be heard. I asked him, after a while during which he delivered testimony and answered questions, if he would be able to remain or come back before the committee for some additional questions--meaning the same day--if the chairman should ask him to do so. His answer was, ``I am too busy.'' I came back to our caucus on that day, and I believe he came to the caucus at the same time. I told this to my caucus while Mr. Bremer was there. It was a shocking thing to me--an individual claiming he is too busy, and yet he is asking for quite a great amount of money to be appropriated, $2 billion. I am not at all surprised at this. I believe as time goes on we will find more and more of these kinds of stories. I congratulate the distinguished Senator on the excellent work he is doing in bringing these things to light. Now the question: Will the distinguished Senator add me as a cosponsor to his amendment?

Mr. BYRD. I thank the Senator.

Mr. BYRD. Mr. President, the great union leader, John L. Lewis, spoke of those who sup at labor's table and who have been sheltered in labor's house. That image thrives in West Virginia, where children are raised to believe that the fruits of their labor ought to yield a decent wage and comfortable living. Many work long hours, concerned less about titles and honors than providing for their families in the present and securing their retirement in old age. They devote themselves to their labors and take pride in their work and their employer. These workers are committed, hard-working individuals who contribute much and ask for nothing more than simple fairness. And so imagine how they are made to feel--the anguish, frustration, and betrayal they are made to feel--when they learn the pension they worked for, the health benefits they labored for, the security they toiled for, has vanished. That is what is happening in West Virginia to an alarming degree. Special Metals, Horizon Natural Resources, Weirton Steel, Wheeling- Pitt, Kaiser Aluminum--all have filed for bankruptcy, endangering the health and pension benefits of workers and retirees. I scold not those who have sought to protect their employees but those scoundrels who have used bankruptcy to abandon their obligations. It is shattering to those workers and retirees affected. It cripples their faith in the moral values of an honest day's work for an honest day's pay. It's terrifying for retirees who cannot begin new careers. These independent, proud men and women fear becoming a burden to their children and grandchildren. I understand how they are made to feel, and I seek to help them, as I always have sought to help them. I support the Rockefeller amendment, and I commend my colleague for his endeavors in this regard.

Mr. BYRD

Mr. BYRD. Mr. President, today I am, again, introducing legislation designed to fulfill an important promise made by the Federal Government to the people of my State and my region some 40 years ago. That promise, building and completing a network of highways through the Appalachian region is known today as the Appalachian Development Highway System or ADHS. I look forward to working with my fellow Senators to have my legislation included in the reauthorization of the Federal-aid Highway Program, a program at the core of Federal infrastructure investment. Over the course of the 108th Congress, we failed to reauthorize this program. That legislation should have been enacted into law prior to beginning fiscal year 2004. We are now more than one third of the way through fiscal year 2005 and the 109th Congress must initiate new bills to get the job done. I know I speak for many Senators in stressing the need to complete this job during this session of Congress. We must authorize a bill that addresses our deteriorating highways and bridges, and is not squeezed by the artificial funding ceiling that the administration wants. The administration's own Conditions and Performance Report again reminds us that a great deal more investment in our infrastructure is essential to prevent the further deterioration of our nation's highways and bridges. At a September 30, 2002 hearing of the Senate Environment and Public Works Committee, Administrator Mary Peters testified that, despite the historic funding increase accomplished through TEA-21, congestion on our roads continues to worsen. Funding for highway infrastructure by all levels of government will have to increase by more than 65 percent or $42.2 billion per year to actually improve the condition of our Nation's highways. A funding increase of more than 17 percent or $11.3 billion is necessary to simply maintain the current poor condition of our highway network, where more than one in four of our Nation's bridges are classified as deficient. At the end of 2002, I worked doggedly to ensure that the Senate prevailed in the conference with the House on the omnibus appropriations bill for fiscal year 2003 and rejected every penny of the $8.6 billion cut in highway funding proposed by President Bush. In 2003, I was pleased to join with Senators Bond and Reid, the respective chairman and ranking member of the Surface Transportation Subcommittee in sponsoring a bipartisan amendment to the budget resolution for fiscal year 2004 boosting funding for our Federal-aid Highway Program by several billion dollars. That amendment commanded 79 votes on the Senate floor. Mr. President, I am one of only two members still serving in the Congress that had the privilege of casting a vote in favor of establishing the Interstate Highway System. I did so as a Member of the other body back in 1956. Of equal if not greater importance to the transportation needs of my region, however, were the findings of the first Appalachian Regional Commission in 1964, that while the Interstate Highway System was slated to provide historic economic benefits to most of our Nation, the system would bypass the Appalachian region because of the extremely high costs of building highways through Appalachia's rugged topography. In 1965, the Congress adopted the Appalachian Regional Development Act that promised a network of modern highways to connect the Appalachian region to the rest of the Nation's highway network and, even more importantly, the rest of the Nation's economy. Absent the Appalachian Development Highway System, my region of the country would have been left with a transportation network of dangerous, narrow, winding roads following the path of river valleys and stream beds between mountains. One of the observations contained in Administrator Peters' testimony back in September of 2002 that especially caught my eye was her statement that ``the condition of higher-order roads, such as interstates, has improved considerably since 1993 while the condition on many lower-order roads has deteriorated.'' The pattern of road conditions mirrors the distribution of wealth in our country. The rich are getting richer while the poor get poorer. That observation becomes especially pertinent when one contemplates the challenge of completing the Appalachian Development Highway System. We have virtually completed the construction of the Interstate Highway System and have moved on to other important transportation goals. However, the people of my region still wait for the Federal Government to make good on its 40-year-old promise to complete the ADHS. The system is still less than 80 percent complete. My home State of West Virginia is below the average for the entire Appalachian region with only 72 percent of its mileage complete and open to traffic. Unfortunately, there are still children in Appalachia who lack decent transportation routes to school; and there are still pregnant mothers, elderly citizens and others who lack road access to area hospitals. There are thousands upon thousands of people who cannot obtain sustainable well-paying jobs because of poor roads. The entire status of the Appalachian Development Highway System is laid out in great detail in the Cost to Complete Report for 2002 completed by the Appalachian Regional Commission. This is the most comprehensive report on the status of the Appalachian Development Highway System to date, and I commend the staff of the Appalachian Regional Commission for their hard work on this report. The last report was completed in 1997 just prior to Congressional consideration of TEA-21. The enactment of TEA-21 signaled a new day in the advancement of the Appalachian Development Highway System. Through the work of the Committee on Environment and Public Works, the House Transportation and Infrastructure Committee, and the administration, we took a great leap forward by authorizing direct contract authority from the Highway Trust Fund to the States for the construction of the ADHS. Up until that point, funding for the Appalachian Development Highway System was limited to uncertain general fund appropriations. By providing the States of the Appalachian region with a predictable source of funds to complete ADHS segments, TEA-21 reinvigorated efforts to keep the promise made to the people of the Appalachian region. This initiative has been a great success. States are making progress toward the completion of the system. Since the last Cost to Complete Report, 183 miles of the system have been opened to traffic and, the cost to complete the system has been reduced by roughly $1.7 billion in Federal funds. I am pleased to report that the 13 States, to date, have succeeded in obligating just under 90 percent of the obligation authority that has been granted to them for the completion of the system. A 90-percent obligation rate compares quite favorably to some of the other transportation programs through which the States were granted multiple years to obligate their funds. According to the ARC's Cost to Complete Report, the remaining Federal funds needed to complete the ADHS as the system was defined at the time that report was completed are now estimated to be $4.467 billion. When adjusted for inflation over the life of the next highway bill, using the standard inflation calculation for highway projects, a total of $5.04 billion will need to be authorized to complete the system. That is a lot of money and I believe that figure deserves some explanation. The considerable cost of completing the last 20 percent of the ADHS is explained by the fact that the easiest segments of the system to build have already been built. Much of the costs associated with completing the most difficult unfinished segments are driven by the requirement to comply with other Federal laws, especially the laws requiring environmental mitigation measures when building new highways through rural areas. While the $5.04 billion figure may seem large to some of my colleagues, I would remind them that the last highway bill authorized more than $218 billion in Federal infrastructure investment over 6 years. It is my sincere hope and expectation that the next highway bill will authorize an even greater amount. Of critical importance to this debate is the fact that the unfinished segments of the ADHS represent some of most dangerous and most deficient roadways in our entire Nation. Often lost in our debate over the necessity to invest in our highways is the issue of safety. The Federal Highway Administration has published reports indicating that substandard road conditions are a factor in 30 percent of all fatal highway accidents. I am quite certain that the percentage is a great deal higher in the Applachian region. The Federal Highway Administration found that upgrading two-lane roads to four-lane divided highways decreased fatal car accidents by 71 percent and that the widening of traffic lanes has served to reduce fatalities by 21 percent. These are precisely the kind of road improvements that are funded through the ADHS. In my state, the largest segment of unfinished Appalachian Highway, if completed, will replace the second most dangerous segment of roadway in West Virginia. So, even those who would question the wisdom of completing these highways in the name of economic development should take a hard look at the fact that the people of rural Appalachia are taking their lives in their hands every day as they drive on dangerous roads. It is time for this Congress, in concert with the administration, to take the last great leap forward and authorize sufficient contract authority to finally complete the Appalachian Development Highway System. If we enact another six-year highway bill with sufficient funds to complete the system, we will finally pay the full costs of the ADHS some 45 years after the system was first promised to the people of my region. The legislation I am introducing today, the ``Appalachian Development Highway System Completion Act,'' will provide sufficient contract authority to complete the system. Importantly, it will guarantee that the states of the Appalachian Region do not pay a penalty, either through the distribution of minimum allocation funds, or the distribution of obligation limitation, for receiving sufficient funds to complete the Appalachian system. I am very pleased that this administration has taken on the goal of completing the ADHS. In her letter accompanying the Cost to Complete Report, Administrator Peters said ``the completion of the ADHS is an important part of the mission of the Federal Highway Administration. We consider the accessibility, mobility and economic stimulation provided by the ADHS to be entirely consistent with the goals of our agency.'' Ms. Peters further stated that the Appalachian Regional Commission's 2002 Cost to Complete Report, ``provides a sound basis for apportioning future funding to complete the system.'' I thank Mary Peters and the entire Federal Highway Administration for their leadership on this issue and I look forward to working with Ms. Peters and her agency to ensure that this commitment is borne out in the transportation reauthorization legislation that is developed by the Congress. Completion of a new highway bill will be an enormous task for this Congress--one that is now more than 2 years overdue. As I look back over the many years of my public career, one of the accomplishments of which I am most proud was my amendment providing an additional $8 billion in funding to break the logjam during the debate on the Intermodal Surface Transportation Efficiency Act in 1991. Another was my sponsorship of the Byrd-Gramm-Baucus-Warner Amendment during the Senate debate of TEA-21 in 1998. That effort resulted in some $26 billion in funding being added to that bill and put us on a path to historic funding increases for our nation's highway infrastructure. I look forward again to working with my fellow Senators on completion of a bill that makes the necessary investments in our nation's highways, not just in the Appalachian region but across our entire country.

Mr. BYRD. Mr. President, in recent years, the public profile of the National Guard has changed considerably. Known mainly for the contributions of citizen-soldiers to their States and communities, today the men and women of the National Guard are serving on the front lines in Iraq and Afghanistan, enduring hardships in two of the world's most dangerous places. In spite of the long deployments, far away from the small towns and big cities that these citizen-soldiers call home, the National Guard continues its work for our States and the American people. Today, I introduce legislation to support a most successful program that has helped the National Guard change the lives of tens of thousands of young Americans. In 1991, I provided the first funding to establish a pilot program known as the National Guard Civilian Youth Opportunities Program. Over the years, this program has expanded in size and scope and is now known as the National Guard Youth Challenge Program. The Youth Challenge Program gives high school dropouts the skills they need to turn their lives around. The advantage of using the National Guard to provide a structured environment for these students has been confirmed in studies by the Defense Science Board in 2000, the White House Task Force on Disadvantaged Children in 2003, and the Department of Defense in 2004. The program now operates 27 academies in 24 States, including West Virginia, Alaska, Hawaii, Georgia, Louisiana, Virginia, Michigan, Florida, Texas, North Carolina, and South Carolina. Over 5,000 cadets are now in training, and more than 58,000 have graduated from the program since 1993. Fully three-quarters of the Youth Challenge graduates have earned their high school diplomas in the program, but the program is at the mercy of shrinking state budgets. In March 2004, the Department of Defense recommended an increase in Federal support for the program in order to prevent any more closures of Youth Challenge academies. The bill I introduce today would write that recommendation into law, phasing in the additional Federal support over 3 years. My legislation also proposes to increase the authorization for the Youth Challenge program by $16.3 million, including $6.3 million for the proposed increase in the Federal share of the Youth Challenge Program's cost for Fiscal Year 2006. My bill authorizes an additional $10 million to provide the first significant per-student increase in funding since the program began. For more than 12 years, the funding of the Youth Challenge Program has remained constant at $14,000 per student, per year. Imagine that. Think of that. At a time when the cost of education is growing by leaps and bounds, the Youth Challenge program has held the line on its budget for more than 12 years. But such discipline means that there have been cutbacks in teachers, uniforms, and activities. The additional $10 million authorized in my bill would end these cutbacks, and may also be used to open new Youth Challenge academies, giving more at-risk youth a chance to change their lives. Many of the citizen-soldiers of the National Guard serve our country in distant lands, but their commitment to their communities continues. The legislation I introduce today will strengthen that commitment by expanding the National Guard Youth Challenge Program for disadvantaged youth.

Mr. BYRD

Mr. BYRD. Mr. President, today I am, again, introducing legislation designed to fulfill an important promise made by the Federal Government to the people of my State and my region some 40 years ago. That promise, building and completing a network of highways through the Appalachian region is known today as the Appalachian Development Highway System or ADHS. I look forward to working with my fellow Senators to have my legislation included in the reauthorization of the Federal-aid Highway Program, a program at the core of Federal infrastructure investment. Over the course of the 108th Congress, we failed to reauthorize this program. That legislation should have been enacted into law prior to beginning fiscal year 2004. We are now more than one third of the way through fiscal year 2005 and the 109th Congress must initiate new bills to get the job done. I know I speak for many Senators in stressing the need to complete this job during this session of Congress. We must authorize a bill that addresses our deteriorating highways and bridges, and is not squeezed by the artificial funding ceiling that the administration wants. The administration's own Conditions and Performance Report again reminds us that a great deal more investment in our infrastructure is essential to prevent the further deterioration of our nation's highways and bridges. At a September 30, 2002 hearing of the Senate Environment and Public Works Committee, Administrator Mary Peters testified that, despite the historic funding increase accomplished through TEA-21, congestion on our roads continues to worsen. Funding for highway infrastructure by all levels of government will have to increase by more than 65 percent or $42.2 billion per year to actually improve the condition of our Nation's highways. A funding increase of more than 17 percent or $11.3 billion is necessary to simply maintain the current poor condition of our highway network, where more than one in four of our Nation's bridges are classified as deficient. At the end of 2002, I worked doggedly to ensure that the Senate prevailed in the conference with the House on the omnibus appropriations bill for fiscal year 2003 and rejected every penny of the $8.6 billion cut in highway funding proposed by President Bush. In 2003, I was pleased to join with Senators Bond and Reid, the respective chairman and ranking member of the Surface Transportation Subcommittee in sponsoring a bipartisan amendment to the budget resolution for fiscal year 2004 boosting funding for our Federal-aid Highway Program by several billion dollars. That amendment commanded 79 votes on the Senate floor. Mr. President, I am one of only two members still serving in the Congress that had the privilege of casting a vote in favor of establishing the Interstate Highway System. I did so as a Member of the other body back in 1956. Of equal if not greater importance to the transportation needs of my region, however, were the findings of the first Appalachian Regional Commission in 1964, that while the Interstate Highway System was slated to provide historic economic benefits to most of our Nation, the system would bypass the Appalachian region because of the extremely high costs of building highways through Appalachia's rugged topography. In 1965, the Congress adopted the Appalachian Regional Development Act that promised a network of modern highways to connect the Appalachian region to the rest of the Nation's highway network and, even more importantly, the rest of the Nation's economy. Absent the Appalachian Development Highway System, my region of the country would have been left with a transportation network of dangerous, narrow, winding roads following the path of river valleys and stream beds between mountains. One of the observations contained in Administrator Peters' testimony back in September of 2002 that especially caught my eye was her statement that ``the condition of higher-order roads, such as interstates, has improved considerably since 1993 while the condition on many lower-order roads has deteriorated.'' The pattern of road conditions mirrors the distribution of wealth in our country. The rich are getting richer while the poor get poorer. That observation becomes especially pertinent when one contemplates the challenge of completing the Appalachian Development Highway System. We have virtually completed the construction of the Interstate Highway System and have moved on to other important transportation goals. However, the people of my region still wait for the Federal Government to make good on its 40-year-old promise to complete the ADHS. The system is still less than 80 percent complete. My home State of West Virginia is below the average for the entire Appalachian region with only 72 percent of its mileage complete and open to traffic. Unfortunately, there are still children in Appalachia who lack decent transportation routes to school; and there are still pregnant mothers, elderly citizens and others who lack road access to area hospitals. There are thousands upon thousands of people who cannot obtain sustainable well-paying jobs because of poor roads. The entire status of the Appalachian Development Highway System is laid out in great detail in the Cost to Complete Report for 2002 completed by the Appalachian Regional Commission. This is the most comprehensive report on the status of the Appalachian Development Highway System to date, and I commend the staff of the Appalachian Regional Commission for their hard work on this report. The last report was completed in 1997 just prior to Congressional consideration of TEA-21. The enactment of TEA-21 signaled a new day in the advancement of the Appalachian Development Highway System. Through the work of the Committee on Environment and Public Works, the House Transportation and Infrastructure Committee, and the administration, we took a great leap forward by authorizing direct contract authority from the Highway Trust Fund to the States for the construction of the ADHS. Up until that point, funding for the Appalachian Development Highway System was limited to uncertain general fund appropriations. By providing the States of the Appalachian region with a predictable source of funds to complete ADHS segments, TEA-21 reinvigorated efforts to keep the promise made to the people of the Appalachian region. This initiative has been a great success. States are making progress toward the completion of the system. Since the last Cost to Complete Report, 183 miles of the system have been opened to traffic and, the cost to complete the system has been reduced by roughly $1.7 billion in Federal funds. I am pleased to report that the 13 States, to date, have succeeded in obligating just under 90 percent of the obligation authority that has been granted to them for the completion of the system. A 90-percent obligation rate compares quite favorably to some of the other transportation programs through which the States were granted multiple years to obligate their funds. According to the ARC's Cost to Complete Report, the remaining Federal funds needed to complete the ADHS as the system was defined at the time that report was completed are now estimated to be $4.467 billion. When adjusted for inflation over the life of the next highway bill, using the standard inflation calculation for highway projects, a total of $5.04 billion will need to be authorized to complete the system. That is a lot of money and I believe that figure deserves some explanation. The considerable cost of completing the last 20 percent of the ADHS is explained by the fact that the easiest segments of the system to build have already been built. Much of the costs associated with completing the most difficult unfinished segments are driven by the requirement to comply with other Federal laws, especially the laws requiring environmental mitigation measures when building new highways through rural areas. While the $5.04 billion figure may seem large to some of my colleagues, I would remind them that the last highway bill authorized more than $218 billion in Federal infrastructure investment over 6 years. It is my sincere hope and expectation that the next highway bill will authorize an even greater amount. Of critical importance to this debate is the fact that the unfinished segments of the ADHS represent some of most dangerous and most deficient roadways in our entire Nation. Often lost in our debate over the necessity to invest in our highways is the issue of safety. The Federal Highway Administration has published reports indicating that substandard road conditions are a factor in 30 percent of all fatal highway accidents. I am quite certain that the percentage is a great deal higher in the Applachian region. The Federal Highway Administration found that upgrading two-lane roads to four-lane divided highways decreased fatal car accidents by 71 percent and that the widening of traffic lanes has served to reduce fatalities by 21 percent. These are precisely the kind of road improvements that are funded through the ADHS. In my state, the largest segment of unfinished Appalachian Highway, if completed, will replace the second most dangerous segment of roadway in West Virginia. So, even those who would question the wisdom of completing these highways in the name of economic development should take a hard look at the fact that the people of rural Appalachia are taking their lives in their hands every day as they drive on dangerous roads. It is time for this Congress, in concert with the administration, to take the last great leap forward and authorize sufficient contract authority to finally complete the Appalachian Development Highway System. If we enact another six-year highway bill with sufficient funds to complete the system, we will finally pay the full costs of the ADHS some 45 years after the system was first promised to the people of my region. The legislation I am introducing today, the ``Appalachian Development Highway System Completion Act,'' will provide sufficient contract authority to complete the system. Importantly, it will guarantee that the states of the Appalachian Region do not pay a penalty, either through the distribution of minimum allocation funds, or the distribution of obligation limitation, for receiving sufficient funds to complete the Appalachian system. I am very pleased that this administration has taken on the goal of completing the ADHS. In her letter accompanying the Cost to Complete Report, Administrator Peters said ``the completion of the ADHS is an important part of the mission of the Federal Highway Administration. We consider the accessibility, mobility and economic stimulation provided by the ADHS to be entirely consistent with the goals of our agency.'' Ms. Peters further stated that the Appalachian Regional Commission's 2002 Cost to Complete Report, ``provides a sound basis for apportioning future funding to complete the system.'' I thank Mary Peters and the entire Federal Highway Administration for their leadership on this issue and I look forward to working with Ms. Peters and her agency to ensure that this commitment is borne out in the transportation reauthorization legislation that is developed by the Congress. Completion of a new highway bill will be an enormous task for this Congress--one that is now more than 2 years overdue. As I look back over the many years of my public career, one of the accomplishments of which I am most proud was my amendment providing an additional $8 billion in funding to break the logjam during the debate on the Intermodal Surface Transportation Efficiency Act in 1991. Another was my sponsorship of the Byrd-Gramm-Baucus-Warner Amendment during the Senate debate of TEA-21 in 1998. That effort resulted in some $26 billion in funding being added to that bill and put us on a path to historic funding increases for our nation's highway infrastructure. I look forward again to working with my fellow Senators on completion of a bill that makes the necessary investments in our nation's highways, not just in the Appalachian region but across our entire country.

Mr. BYRD

Mr. BYRD. Mr. President, in recent years, the public profile of the National Guard has changed considerably. Known mainly for the contributions of citizen-soldiers to their States and communities, today the men and women of the National Guard are serving on the front lines in Iraq and Afghanistan, enduring hardships in two of the world's most dangerous places. In spite of the long deployments, far away from the small towns and big cities that these citizen-soldiers call home, the National Guard continues its work for our States and the American people. Today, I introduce legislation to support a most successful program that has helped the National Guard change the lives of tens of thousands of young Americans. In 1991, I provided the first funding to establish a pilot program known as the National Guard Civilian Youth Opportunities Program. Over the years, this program has expanded in size and scope and is now known as the National Guard Youth Challenge Program. The Youth Challenge Program gives high school dropouts the skills they need to turn their lives around. The advantage of using the National Guard to provide a structured environment for these students has been confirmed in studies by the Defense Science Board in 2000, the White House Task Force on Disadvantaged Children in 2003, and the Department of Defense in 2004. The program now operates 27 academies in 24 States, including West Virginia, Alaska, Hawaii, Georgia, Louisiana, Virginia, Michigan, Florida, Texas, North Carolina, and South Carolina. Over 5,000 cadets are now in training, and more than 58,000 have graduated from the program since 1993. Fully three-quarters of the Youth Challenge graduates have earned their high school diplomas in the program, but the program is at the mercy of shrinking state budgets. In March 2004, the Department of Defense recommended an increase in Federal support for the program in order to prevent any more closures of Youth Challenge academies. The bill I introduce today would write that recommendation into law, phasing in the additional Federal support over 3 years. My legislation also proposes to increase the authorization for the Youth Challenge program by $16.3 million, including $6.3 million for the proposed increase in the Federal share of the Youth Challenge Program's cost for Fiscal Year 2006. My bill authorizes an additional $10 million to provide the first significant per-student increase in funding since the program began. For more than 12 years, the funding of the Youth Challenge Program has remained constant at $14,000 per student, per year. Imagine that. Think of that. At a time when the cost of education is growing by leaps and bounds, the Youth Challenge program has held the line on its budget for more than 12 years. But such discipline means that there have been cutbacks in teachers, uniforms, and activities. The additional $10 million authorized in my bill would end these cutbacks, and may also be used to open new Youth Challenge academies, giving more at-risk youth a chance to change their lives. Many of the citizen-soldiers of the National Guard serve our country in distant lands, but their commitment to their communities continues. The legislation I introduce today will strengthen that commitment by expanding the National Guard Youth Challenge Program for disadvantaged youth.

Mr. BYRD

Mr. BYRD. Mr. President, in 1939, one of the most famous American movies of all time, ``Mr. Smith Goes to Washington,'' hit the box office. Initially received with a combination of lavish praise and angry blasts, the film went on to win numerous awards and to inspire millions around the globe. The director, the legendary Frank Capra, in his autobiography, ``Frank Capra: The Name Above the Title,'' cites this moving review of the film, appearing in the Hollywood Reporter, November 4, 1942: Frank Capra's ``Mr. Smith Goes to Washington,'' chosen by French Theaters as the final English language film to be shown before the recent Nazi-ordered countrywide ban on American and British films went into effect, was roundly cheered. . . . Storms of spontaneous applause broke out at the sequence when, under the Abraham Lincoln monument in the Capital, the word, ``Liberty,'' appeared on the screen and the Stars and Stripes began fluttering over the head of the great Emancipator in the cause of liberty. Similarly, cheers and acclamation punctuated the famous speech of the young senator on man's rights and dignity. ``It was . . . as though the joys, suffering, love and hatred, the hopes and wishes of an entire people who value freedom above everything, found expression for the last time. . . .'' For those who may not have seen it, ``Mr. Smith'' is the fictional story of one young Senator's crusade against forces of corruption and his lengthy filibuster--his lengthy filibuster--for the values he holds dear. My, how things have changed. These days, Mr. Smith would be called an obstructionist. Rumor has it that there is a plot afoot to curtail the right of extended debate in this hallowed Chamber, not in accordance with its rules, mind you, but by fiat from the Chair--fiat from the Chair. The so-called nuclear option--hear me--the so-called nuclear option-- this morning I asked a man, What does nuclear option mean to you? He said: Oh, you mean with Iran? I was at the hospital a few days ago with my wife, and I asked a doctor, What does the nuclear option mean to you? He said: Well, that sounds like we're getting ready to drop some device, some atomic device on North Korea. Well, the so-called nuclear option purports to be directed solely at the Senate's advice and consent prerogatives regarding Federal judges. But the claim that no right exists to filibuster judges aims an arrow straight at the heart of the Senate's long tradition of unlimited debate. The Framers of the Constitution envisioned the Senate as a kind of executive council, a small body of legislators, featuring longer terms, designed to insulate Members from the passions of the day. The Senate was to serve as a check on the executive branch, particularly in the areas of appointments and treaties, where, under the Constitution, the Senate passes judgment absent the House of Representatives. James Madison wanted to grant the Senate the power to select judicial appointees with the Executive relegated to the sidelines. But a compromise brought the present arrangement: appointees selected by the Executive, with the advice and consent of the Senate confirmed. Note-- hear me again--note that nowhere in the Constitution of the United States is a vote on appointments mandated. When it comes to the Senate, numbers can deceive. The Senate was never intended to be a majoritarian body. That was the role of the House of Representatives, with its membership based on the populations of States. The Great Compromise of July 16, 1787, satisfied the need for smaller States to have equal status in one House of Congress, the Senate. The Senate, with its two Members per State, regardless of population, is, then, the forum of the States. Indeed, in the last Congress--get this--in the last Congress 52 Members, a majority, representing the 26 smallest States, accounted for just 17.06 percent of the U.S. population. Let me say that again. Fifty-two Members, a majority, representing the 26 smallest States--two Senators per State--accounted for just 17.06 percent of the U.S. population. In other words, a majority in the Senate does not necessarily represent a majority of the population of the United States. The Senate is intended for deliberation. The Senate is intended for deliberation, not point scoring. The Senate is a place designed, from its inception, as expressive of minority views. Even 60 Senators, the number required under Senate rule XXII for cloture, would represent just 24 percent of the population if they happened to all hail from the 30 smallest States. So you can see what it means to the smallest States in these United States to be able to stand on this floor and debate, to their utmost, until their feet will no longer hold them, and their lungs of brass will no longer speak, in behalf of their States, in behalf of a minority, in behalf of an issue that affects vitally their constituents. Unfettered debate, the right to be heard at length, is the means by which we perpetuate the equality of the States. In fact, it was 1917, before any curtailing of debate was attempted, which means that from 1789 to 1917, there were 129 years; in other words, it means also that from 1806 to 1917, some 111 years, the Senate rejected any limits to debate. Democracy flourished along with the filibuster. The first actual cloture rule in 1917 was enacted in response to a filibuster by those people who opposed the arming of merchant ships. Some might say they opposed U.S. intervention in World War I, but to narrow it down, they opposed the arming of merchant ships. But even after its enactment, the Senate was slow to embrace cloture, understanding the pitfalls of muzzling debate. In 1949, the 1917 cloture rule was modified to make cloture more difficult to invoke, not less, mandating that the number needed to stop debate would be not two- thirds of those present and voting but two-thirds of all Senators elected and sworn. Indeed, from 1919 to 1962, the Senate voted on cloture petitions only 27 times and invoked cloture just 4 times over those 43 years. On January 4, 1957, Senator William Ezra Jenner of Indiana spoke in opposition to invoking cloture by majority vote. He stated with great conviction: We may have a duty to legislate, but we also have a duty to inform and deliberate. In the past quarter century we have seen a phenomenal growth in the power of the executive branch. If this continues at such a fast pace, our system of checks and balances will be destroyed. One of the main bulwarks against this growing power is free debate in the Senate . . . So long as there is free debate, men of courage and understanding will rise to defend against potential dictators . . . The Senate today is one place where, no matter what else may exist, there is still a chance to be heard, an opportunity to speak, the duty to examine, and the obligation to protect. It is one of the few refuges of democracy. Minorities have an illustrious past, full of suffering, torture, smear, and even death. Jesus Christ was killed by a majority; Columbus was smeared; and Christians have been tortured. Had the United States Senate existed during those trying times, I am sure that these people would have found an advocate. Nowhere else can any political, social, or religious group, finding itself under sustained attack, receive a better refuge. Senator Jenner was right. The Senate was deliberately conceived to be what he called ``a better refuge,'' meaning one styled as guardian of the rights of the minority. The Senate is the ``watchdog'' because majorities can be wrong and filibusters can highlight injustices. History is full of examples. In March 1911, Senator Robert Owen of Oklahoma filibustered the New Mexico statehood bill, arguing that Arizona should also be allowed to become a State. President Taft opposed the inclusion of Arizona's statehood in the bill because Arizona' State constitution allowed the recall of judges. Arizona attained statehood a year later, at least in part because Senator Owen and the minority took time to make their point the year before. In 1914, a Republican minority led a 10-day filibuster of a bill that would have appropriated more than $50,000,000 for rivers and harbors. On an issue near and dear to the hearts of our current majority, Republican opponents spoke until members of the Commerce Committee agreed to cut the appropriations by more than half. Perhaps more directly relevant to our discussion of the ``nuclear option'' are the 7 days in 1937, from July 6 to 13 of that year, when the Senate blocked Franklin Roosevelt's Supreme Court-packing plan--one of my favorite presidents. Earlier that year, in February 1937, FDR sent the Congress a bill drastically reorganizing the judiciary. The Senate Judiciary Committee rejected the bill, calling it ``an invasion of judicial power such as has never before been attempted in this country'' and finding it ``essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the Government.'' The committee recommended the rejection of the court-packing bill, calling it ``a needless, futile, and utterly dangerous abandonment of constitutional principle . . . without precedent and without justification.'' What followed was an extended debate on the Senate floor lasting for 7 days until the majority leader, Joseph T. Robinson of Arkansas, a supporter of the plan, suffered a heart attack and died on July 14. Eight days later, by a vote of 70 to 20, the Senate sent the judicial reform bill back to committee, where FDR's controversial, court-packing language was finally stripped. A determined, vocal group of Senators properly prevented a powerful President from corrupting our Nation's judiciary. Free and open debate on the Senate floor ensures citizens a say in their government. The American people are heard, through their Senator, before their money is spent, before their civil liberties are curtailed, or before a judicial nominee is confirmed for a lifetime appointment. We are the guardians, the stewards, the protectors of the people who send us here. Our voices are their voices. If we restrain debate on judges today, what will be next: the rights of the elderly to receive social security; the rights of the handicapped to be treated fairly; the rights of the poor to obtain a decent education? Will all debate soon fall before majority rule? Will the majority someday trample on the rights of lumber companies to harvest timber or the rights of mining companies to mine silver, coal, or iron ore? What about the rights of energy companies to drill for new sources of oil and gas? How will the insurance, banking, and securities industries fare when a majority can move against their interests and prevail by a simple majority vote? What about farmers who can be forced to lose their subsidies, or western Senators who will no longer be able to stop a majority determined to wrest control of ranchers' precious water or grazing rights? With no right of debate, what will forestall plain muscle and mob rule? Many times in our history we have taken up arms to protect a minority against the tyrannical majority in other lands. We, unlike Nazi Germany or Mussolini's Italy, have never stopped being a nation of laws, not of men. But witness how men with motives and a majority can manipulate law to cruel and unjust ends. Historian Alan Bullock writes that Hitler's dictatorship rested on the constitutional foundation of a single law, the Enabling Law. Hitler needed a two-thirds vote to pass that law, and he cajoled his opposition in the Reichstag to support it. Bullock writes that ``Hitler was prepared to promise anything to get his bill through, with the appearances of legality preserved intact.'' And he succeeded. Hitler's originality lay in his realization that effective revolutions, in modern conditions, are carried out with, and not against, the power of the State: the correct order of events was first to secure access to that power and then begin his revolution. Hitler never abandoned the cloak of legality; he recognized the enormous psychological value of having the law on his side. Instead, he turned the law inside out and made illegality legal. That is what the nuclear option seeks to do to rule XXII of the Standing Rules of the Senate. I said to someone this morning who was shoveling snow in my area: What does nuclear option mean to you? He answered: Do you mean with Iran? The people generally don't know what this is about. The nuclear option seeks to alter the rules by sidestepping the rules, thus making the impermissible the rule, employing the nuclear option, engaging a pernicious, procedural maneuver to serve immediate partisan goals, risks violating our Nation's core democratic values and poisoning the Senate's deliberative process. For the temporary gain of a handful of out-of-the-mainstream judges, some in the Senate are ready to callously incinerate each and every Senator's right of extended debate. Note that I said each Senator. Note that I said every Senator. For the damage will devastate not just the minority party--believe me, hear me, and remember what I say--the damage will devastate not just the minority party, it will cripple the ability of each Member, every Member, to do what each Member was sent here to do--namely, represent the people of his or her State. Without the filibuster--it has a bad name, old man filibuster out there. Most people would be happy to say let's do away with him. We ought to get rid of that fellow; he has been around too long. But someday that old man filibuster is going to help me, you, and every Senator in here at some time or other, when the rights of the people he or she represents are being violated or threatened. That Senator is then going to want to filibuster. He or she is going to want to stand on his or her feet as long as their brass lungs will carry their voice. No longer. If the nuclear option is successful here, no longer will each Senator have that weapon with which to protect the people who sent him or her here. And the people finally are going to wake up to who did it. They are going to wake up to it sooner or later and ask: Who did this to us? Without the filibuster or the threat of extended debate, there exists no leverage with which to bargain for the offering of an amendment. All force to effect compromise between the parties will be lost. Demands for hearings will languish. The President can simply rule. The President of the United States can simply rule by Executive order, if his party controls both Houses of Congress and majority rule reigns supreme. In such a world, the minority will be crushed, the power of dissenting views will be diminished, and freedom of speech will be attenuated. The uniquely American concept of the independent individual asserting his or her own views, proclaiming personal dignity through the courage of free speech will forever have been blighted. This is a question of freedom of speech. That is what we are talking about-- freedom of speech. And the American spirit, that stubborn, feisty, contrarian, and glorious urge to loudly disagree, and proclaim, despite all opposition, what is honest, what is true, will be sorely manacled. Yes, we believe in majority rule, but we thrive because the minority can challenge, agitate, and ask questions. We must never become a nation cowed by fear, sheeplike in our submission to the power of any majority demanding absolute control. Generations of men and women have lived, fought, and died for the right to map their own destiny, think their own thoughts, speak their own minds. If we start here, in this Senate, to chip away at that essential mark of freedom--here of all places, in a body designed to guarantee the power of even a single individual through the device of extended debate--we are on the road to refuting the principles upon which that Constitution rests. In the eloquent, homespun words of that illustrious, obstructionist, Senator Smith, in ``Mr. Smith Goes to Washington'': Liberty is too precious to get buried in books. Men ought to hold it up in front of them every day of their lives and say, ``I am free--to think--to speak. My ancestors couldn't. I can. My children will.'' I yield the floor.

Mr. BYRD

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

Mr. BYRD

Mr. BYRD. Mr. President, I am pleased and proud to cosponsor today's Senate resolution that honors my good friend and former colleague, Senator Howard Baker, for his lifetime of public service. As the Senate Democratic leader from 1977 to 1980, I had the pleasure to work with Senator Baker, first when he served as the Senate minority leader. From the start, I found my leadership relations with Senator Baker to be excellent, and that never changed. Make no mistake, he was a tough competitor, but he always remained amiable and friendly to work with, in short, a gentleman in the true sense of the word. He was necessarily partisan, but not overly so. I will never forget his extraordinary cooperation in obtaining consent for ratification of the Panama Canal Treaties. The legislative accomplishments of the 94th and 95th Congresses were a testament to our cooperation. My admiration for Senator Baker increased even more when he became majority leader in 1981. He remained co-operative, friendly, and easy to work with. When I paid tribute to Senator Baker on the occasion of his birthday in 1983, I stated that Senator Baker was ``the most congenial and likable of all the majority leaders in my time here.'' ``He is accommodating,'' I pointed out, and I marvel at his equanimity. He takes everything in stride. He does not appear to be overwhelmed by the power of his office. I recall quite clearly how all Senators, on both sides of the aisle, liked Howard Baker and had a genuine fondness for him. One of my saddest days in the Senate came that same year when I learned of Senator Baker's decision not to seek reelection. I expressed my deep regrets, stating: ``Having worked with Howard Baker in the leadership in one fashion or another for a long period of time, I have a real and a very deep admiration for him, and I have a warm glow of friendship that has never ceased to burn brightly.'' I finished that tribute by reciting a poem by Ralph Waldo Emerson, ``A Nation's Strength,'' as testament to my high regard for Senator Baker. Since leaving the Senate, Senator Baker has gone on to serve our country in a number of other, important capacities, including Chief of Staff to President Ronald Reagan, a member of the President's Foreign Intelligence Board, and U.S. Ambassador to Japan. Therefore, on this special occasion, when the Senate is honoring this great man for his service to our country, I wish once again to recognize his service to our Nation. God give us men! A time like this demands strong minds, great hearts, true faith, and ready hands. Men whom the lust of office does not kill; Men whom the spoils of office cannot buy; Men who possess opinions and a will; Men who have honor; men who will not lie. Men who can stand before a demagogue And brave his treacherous flatteries without winking. Tall men, sun--crowned; Who live above the fog, In public duty and in private thinking. For while the rabble with its thumbworn creeds, It's large professions and its little deeds, mingles in selfish strife, Lo! Freedom weeps! Wrong rules the land and waiting justice sleeps. God give us men! Men who serve not for selfish booty; But real men, courageous, who flinch not at duty. Men of dependable character; Men of sterling worth; Then wrongs will be redressed, and right will rule the earth. God Give us Men! 6I suggest the absence of a quorum.

Mr. BYRD

Mr. BYRD. I thank the Chair. Mr. President, Alberto Gonzales is Counsel to the President of the United States. For the past 4 years, Mr. Gonzales has served as the chief legal adviser to President Bush, housed in the west wing of the White House, a stone's throw from the Oval Office. The official biography of Alberto Gonzales on the White House Web site states that before he was commissioned to be White House Counsel, Judge Gonzales was a justice on the Texas Supreme Court. Prior to that, he served as the one-hundredth Secretary of the State of Texas, where one of his many duties was to act as a senior adviser to then-Governor George W. Bush. Before that, he was general counsel to Governor Bush for 3 years. So for over a decade, Alberto Gonzales has been a close confidant and adviser to George W. Bush, and the President has confirmed his personal and professional ties to Judge Gonzales on many occasions. The President has described him as both ``a dear friend'' and as ``the top legal official on the White House staff.'' When the President nominated Mr. Gonzales to be the next Attorney General of the United States, the President began by asserting: This is the fifth time I have asked Judge Gonzales to serve his fellow citizens, and I am very grateful he keeps saying ``yes'' . . . as the top legal official on the White House staff, he has led a superb team of lawyers. In praising his nomination of Alberto Gonzales, the President specifically stressed the quintessential ``leadership'' role that Alberto Gonzales has held in providing the President with legal advice on the war on terror. The President stated specifically that it was his ``sharp intellect and sound judgment'' that helped shape our policies in the war on terror. According to the President, Mr. Gonzales is one of his closest friends who, again in the words of the President, ``always gives me his frank opinion.'' I am not a member of the Senate Committee on the Judiciary and so I have come to my conclusions by reading from the record. Not hearing directly the testimony, not being able to ask questions during the hearings, but from my reading of the testimony, I speak now. Imagine how perplexing and disheartening it has been to review the responses--or should I say lack of responses--that were provided by Mr. Gonzales to members of the Senate Judiciary Committee at his confirmation hearing on January 6. It seemed as if once seated before the committee, Judge Gonzales forgot that he had, in fact, been the President's top legal adviser for the past 4 years. It was a strangely detached Alberto Gonzales who appeared before the Senate Judiciary Committee. Suddenly this close friend and adviser to the President simply could not recall forming opinions on a great number of key legal and policy decisions made by the Bush White House over the past 4 years. And this seemed particularly true when it came to decisions which in retrospect now appear to have been wrong. When asked his specific recollection of weighty matters, Judge Gonzales could provide only vague recollections in many instances of what might have been discussed in meetings of quite monumental importance even during a time of war. He could not remember what he advised in discussions interpreting the U.S. law against torture or the power of the President to ignore laws passed by Congress, discussions that resulted in decisions that reversed over 200 years of legal and constitutional precedents relied on by 42 prior Presidents. That is pretty hard to believe. In fact, if one did not know the true relationship between the President and this nominee, or if one had never heard the President refer to the ``frank'' advice he has received from Judge Gonzales, one would think from reading his hearing transcript that Alberto Gonzales was not really the White House Counsel. Instead, one might think that he is simply an old family friend who, yes, is happy to work near the seat of power but makes no really big decisions, has no legal opinions of his own, and certainly feels no responsibility to provide independent recommendations to the President. I find it hard to believe that the top legal adviser to the President cannot recall what he said or what he did with respect to so many of the enormous policy and legal decisions that have flowed from the White House since September 11 in particular. It is especially difficult to comprehend the sudden memory lapse when the consequences of these decisions have had, and will continue to have, profound effects on world events for years, and even decades, to come. Judge Gonzales was asked whether he had chaired meetings in which he had discussed with Justice Department attorneys such interrogation techniques as strapping detainees to boards and holding them under water, as if to drown them. He testified that there were such meetings, and he did remember having had some discussions with Justice Department attorneys, but he could not recall what he told them in those discussions. When Senator Kennedy asked if he ever suggested to the Justice Department attorneys that they ought to ``lean forward'' to support more extreme uses of torture, as reported by the Washington Post, he said: I don't ever recall having used that term. He stated that, while he might have attended such meetings, it was not his role, but that of the Justice Department, to determine which interrogation techniques were lawful. He said: It was not my role to direct that we should use certain kinds of methods of receiving information from terrorists. That was a decision made by the operational agencies. . . . And we look to the Department of Justice to tell us what would, in fact, be within the law. He said he could not recall what he said when he discussed with Justice Department attorneys the contents of the now-infamous ``torture'' memo of August 1, 2002, the one which independent investigative reports have found contributed to detainee abuses, first at Guantanamo and, then, Afghanistan and, later, Iraq. When asked whether he agreed with the now repudiated conclusions contained in that torture memo at the time of its creation on August 1, 2002, Mr. Gonzales stated: There was discussion between the White House and the Department of Justice, as well as other agencies, about what does this statute mean. . . .I don't recall today whether or not I was in agreement with all of the analyses, but I don't have a disagreement with the conclusions then reached by the Department. He went on to add that, as Counsel to the President, it was not his responsibility to approve opinions issued by the Department of Justice. He said: I don't believe it is my responsibility, because it really would politicize the work of the career professionals at the Department of Justice. Mr. President, one must wonder what the job of White House Counsel entails, if it does not involve giving the President the benefit of one's thinking on legal issues. Perhaps one reason Judge Gonzales says he does not remember what he said in those meetings is because, as soon as the torture memo was leaked to the press, he had to disavow it. Once it became clear that the White House believed--based on those meetings--that only the most egregious acts imaginable could be prohibited as torture, the memo received universal opprobrium. Thus, the administration had little choice but to repudiate it and, in June 2004, Mr. Gonzales announced its withdrawal. He then directed the Justice Department to prepare new legal analyses on how to interpret prohibitions against torture under U.S. and international law. Strangely, however, that new analysis was not available to the public for 6 more months. Finally, on December 30, just 1 week prior to the Gonzales nomination hearing, a memorandum containing the administration's most recent take on the subject was issued by the Justice Department. With the benefit of 20/20 hindsight, together with a keen desire to be confirmed as the next Attorney General of the United States, Judge Gonzales told the committee on January 6 that the analysis of the August 1, 2002, memo no longer represents the official position of the executive branch of the United States. If Judge Gonzales didn't see fit to question the Justice Department's official position on torture in 2002, what made the administration change its mind in 2004? Was it a careful review of the legal issues, or was it simply political backpedaling in light of the public knowledge of what its policies had brought about in Abu Ghraib and elsewhere? I note in passing that the ``torture'' memo was written in 2002 by then-Assistant Attorney General Jay Bybee, who is now a Federal judge on the Ninth Circuit Court of Appeals. God help the Ninth Circuit Court of Appeals. I would like the record to reflect that 18 other Senators and I voted to reject the nomination of Jay Bybee to be a Federal judge, a decision I, for one, do not regret. The Bybee memo drew universal condemnation and scorn for at least two of the legal opinions that were included in its text. First, it described torture as being prohibited under U.S. law in only very circumscribed circumstances. It defined torture so narrowly that horrific harm could be inflicted against another human being in the course of an interrogation overseas and not be prohibited. According to the memo, unless such acts resulted in organ failure, the impairment of a bodily function, or death, they could be considered legal. In fact, the first page of the memorandum states: We conclude that the statute [the statute against torture], taken as a whole, makes plain that it prohibits only extreme acts. . . . This confirms our view that the criminal statute penalizes only the most egregious conduct. The second but equally shocking and erroneous legal conclusion reached in the so-called torture memorandum states: We find that in the circumstances of the current war against al-Qaida and its allies, prosecution under section 2340A [the relevant provision of U.S. law prohibiting torture] may be barred because enforcement of the statute would represent an unconstitutional infringement of the President's authority to conduct war. As the Commander in Chief. Where have we heard that before, the term ``Commander in Chief''? This means the White House believed that a President can simply override the U.S. law prohibiting torture, just because he disagrees with it. In other words, he can ignore the law by proclaiming, in his own mind, that the law is unconstitutional. Not because a court of the United States has found the law to be unconstitutional but because a wartime President decides he simply does not want to be bound by it. What an astounding assertion. Think of it. A President placing himself above the constitutional law--in effect, crowning himself king. This outrageously broad interpretation of Executive authority is so antithetical to the carefully calibrated system of checks and balances conceived by the Founding Fathers it seems inconceivable that it could be seriously contemplated by any so-called legal expert, much less attorneys of the U.S. Justice Department or the White House Counsel. Has the White House no appreciation for the struggle that the Nation endured upon its creation? Can it really believe that a President can circumvent the will of the people and their legislature by adopting and disseminating a legal interpretation that would, in the end, protect from prosecution those who commit torture in violation of U.S. law? Alexander Hamilton, in Federalist No. 69, described in detail exactly how the American system can and must be distinguished from the British monarchy. Hamilton wrote: There is no comparison-- Hear that again-- There is no comparison-- None-- There is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone, what the other can only do with the concurrence of a branch of the Legislature. Mr. President, no one man or woman, no President, not his White House Counsel, nor all the attorneys in the Office of the Legal Counsel in the Justice Department can, on their own, act in contravention of a law passed by Congress. No President--no President--can nullify or countermand a U.S. law to shield from prosecution those who would commit or attempt to commit torture. But that was the result sought by this White House. When asked by Senator Durbin if he still believes that the President has the authority as Commander in Chief to ignore a law passed by Congress, to decide on his own whether it is unconstitutional, or to simply refuse to comply with it, Judge Gonzales stated that, yes, he believes it is theoretically possible for the Congress to pass a law that would be viewed as unconstitutional by a President and, therefore, to be ignored. And even though the torture memo was replaced by a new memorandum on December 30, the replacement memorandum does not reject the earlier document's shockingly overly expansive interpretation of the President's Commander-in-Chief power. Instead, the new memo states that because that portion of the discussion in the earlier memo was ``unnecessary,'' it has been eliminated from the new analysis. Particularly disturbing is the fact that although the new analysis repudiates the earlier memo's conclusion that all but extreme acts of torture are permissible, Judge Gonzales could not tell us whether this repudiation of prior policy has been communicated to those who are today doing the interrogating. This is important because there is language contained in the now- repudiated torture memo that was relied on in Guantanamo and parts of which were included word for word in the military's Working Group Report on Detainee Interrogations in the Global War on Terrorism. This report, dated April 2003, has never been repudiated or amended and may be relied upon by some interrogators in the field. When asked whether those who are charged with conducting interrogations have been apprised of the administration's repudiation of sections of the Bybee memo and the administration's attendant change in policy, Judge Gonzales did not know the answer. Mr. Gonzales continues to deny responsibility for many of the policies and legal decisions made by this administration. But the Fay report and the Schlesinger report corroborate the fact that policy memos on torture, ghost detainees, and the Geneva Conventions, which Judge Gonzales either wrote, requested, authorized, endorsed, or implemented, appear to have contributed to detainee abuses in Afghanistan, Guantanamo Bay, and Iraq, including those that occurred at Abu Ghraib. The International Committee of the Red Cross has told us that abuse of Iraqi detainees has been widespread, not simply the wrongdoing of a few, as the White House first told us, and the abuse occurred not only at Abu Ghraib. Last week, the Los Angeles Times reported that documents released last Monday by the Pentagon disclosed that prisoners had lodged dozens of abuse complaints against U.S. and Iraqi personnel who guarded detainees in another location, a little known palace in Baghdad that was converted into a prison. The documents suggest, for the first time, that numerous detainees were also abused at one of Saddam Hussein's former villas in eastern Baghdad. The article noted that while previous cases of abuse of Iraqi prisoners had focused mainly on Abu Ghraib, allegations of abuse at this new location included that guards had sodomized a disabled man and killed his brother, then tossed his dying body into a cell, on top of his sister. Judge Gonzales admits that he was physically present at discussions regarding whether acts of this nature constitute torture, but do not expect him to take responsibility for them. Do not hold me accountable, he says. It was not I. And he does not just point fingers at the Justice Department. He also spreads the blame around. While he admitted he had made some mistakes, he attempted to further deflect responsibility for his actions by saying the operational agencies also had responsibility to make decisions on interrogation techniques--Not him. This is exactly what he said: I have recollection that we had some discussions in my office, but let me be very clear with the committee. It is not my job to decide which types of methods of obtaining information from terrorists would be the most effective. That job responsibility falls to folks within the agencies. It is also not my job to make the ultimate decision about whether or not those methods would, in fact, meet the requirements of the anti-torture statute. That would be the job for the Department of Justice. . . . I viewed it as their responsibility to make a decision as to whether or not a procedure or method would, in fact, be lawful. One wishes that Judge Gonzales could have told us what his job was rather than, telling us only what it was not. Talk about passing the buck. At the end of the day one can only remember or wonder then what legal advice, if any, he actually gave to the President of the United States. Does Judge Gonzales or the President have an opinion on the question of what constitutes torture? Does he or the President have an opinion on the related question of whether it is legal to relocate detainees to facilitate interrogation? Do they believe it is morally or constitutionally right? Do we know? No. According to article II, section 3, of the U.S. Constitution, as head of the executive branch, the President has a legal duty to take care that the laws be faithfully executed. The Constitution does not say that the President should or may undertake that responsibility. It clearly states that the President shall take care that the laws be faithfully executed. He is duty bound to undertake that responsibility under the Constitution of the United States, and the President and his Counsel must be held accountable for not only failing to faithfully execute our laws but also for trying to undermine, contravene, and gut them. With such a track record, how can we possibly trust this man to be Attorney General of the United States? What sort of judgment has he exhibited? As I stated a few days ago with respect to Dr. Condoleezza Rice, there needs to be accountability in our Government. There needs to be accountability for the innumerable blunders, bad decisions, and warped policies that have led the United States to the position in which we now find ourselves, trapped in Iraq amid increased violence; disgraced by detainee abuses first in Guantanamo, then in Afghanistan, Iraq, and probably in locations we have yet to discover; shunned by our allies; perceived by the world community, rightfully, as careening down the wrong path. I do not believe our Nation can rely on the judgment of a public official with so little respect for the rule of constitutional law. We cannot rely on the judgment of someone with so little regard for our constitutional system of government. I simply cannot support the nomination of someone who despite his assertions to the contrary obviously contributed in large measure to the atrocious policy failures and the contrived and abominable legal decisions that have flowed from this White House over the past 4 years. For all of these reasons, I have no choice but to vote against the nomination of Alberto Gonzales to be the next Attorney General of the United States. I yield the floor and I suggest the absence of a quorum.

Mr. BYRD

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

Mr. BYRD. Mr. President, how much time do I have?

Mr. BYRD. I thank the Chair. Mr. President, in Federalist No. 77, Alexander Hamilton wrote: It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. Although Hamilton explains the importance of the role of the Senate in the appointment of officers of the United States, neither he nor the Constitution is specific about what criteria Senators must use to judge the qualifications of a nominee. The Constitution only requires that the Senate give its advice and consent. It is therefore left to Senators to use their own judgment in considering their vote. The factors involved in such judgments may vary among Senators, among nominees, and may even change in response to the needs of the times. The position of Secretary of State is among the most important offices for which the Constitution requires the advice and the consent of the Senate. It is the Secretary of State who sits at the right hand of the President during meetings of the President's Cabinet. The Secretary of State is all the more important today, considering the enormous diplomatic challenges our country will face in the next 4 years. I commend the Foreign Relations Committee for its work in bringing the nomination of Dr. Condoleezza Rice to the Senate. Chairman Richard Lugar conducted 2 days of hearings for this nominee and the debate that began in the committee on this nomination is now being continued on the floor of the Senate. Senator Biden also provided a voice in great foreign policy experience during those hearings. I was particularly impressed by Senator Boxer who tackled her role on the committee with passion and with forthrightness, as did Senator Kerry. There is no doubt that Dr. Rice has a remarkable record of personal achievement. She obtained her bachelor's degree at the tender age of 19--get that. Speaking as someone who did not earn a bachelor's degree until I had reached 77 years of age, I have a special appreciation for Dr. Rice's impressive academic achievement. It was a remarkable achievement indeed. She then obtained a doctorate in international studies and quickly rose through the academic ranks to become provost of Stanford University. Dr. Rice has also gathered extensive experience in foreign policy matters. She is a recognized expert on matters relating to Russia and the former Soviet Union. She has twice worked on the National Security Council, once as the senior adviser on Soviet issues and most recently for 4 years as National Security Adviser. Dr. Rice has had ample exposure to the nuances of international politics and by that measure she is certainly qualified for the position of Secretary of State. The next Secretary of State will have large shoes to fill. I have closely watched the career of Colin Powell since he served as National Security Adviser to President Reagan and we worked together during the Senate consideration of the INF treaty of 1988. Colin Powell distinguished himself in his service as chairman of the Joint Chiefs of Staff, particularly during the 1991 Gulf War. When his nomination came before the Senate in 2001, I supported his confirmation and I supported it strongly based upon the strength of his record. The vote that the Senate will conduct tomorrow, however, is not simply a formality to approve of a nominee's educational achievement or level of expertise. I do not subscribe to the notion that the Senate must confirm a President's nominees barring criminality or lack of experience. The Constitution enjoins Senators to use their judgment in considering nominations. I am particularly dismayed by accusations I have read that Senate Democrats, by insisting on having an opportunity to debate the nomination of Dr. Rice, have somehow been engaged in nothing more substantial than ``petty politics,'' partisan delaying tactics. Nothing, nothing, nothing could be further from the truth. The Senate's role of advice and consent to Presidential nominations is not a ceremonial exercise. Here is the proof. Here is the record. Here is the document that requires more than just a ceremonial exercise. I have stood in the Senate more times than I can count to defend the prerogatives of this institution and the separate but equal--with emphasis on the word ``equal''--powers of the three branches of Government. A unique power of the legislative branch is the Senate's role in providing advice and consent on the matter of nominations. That power is not vested in the Senate Foreign Relations Committee, it is not vested in any other committee, nor does it repose in a handful of Senate leaders. It is not a function of pomp and circumstance, and it was never intended by the Framers to be used to burnish the image of a President on Inauguration Day. Yet that is exactly what Senators were being pressured to do last week, to acquiesce mutely to the nomination of one of the most important members on the President's Cabinet without the slightest hiccup of debate or the smallest inconvenience of a rollcall vote. And so, Mr. President, we are here today to fulfill our constitutional duty to consider the nomination of Dr. Rice to be Secretary of State. I have carefully considered Dr. Rice's record as National Security Adviser in the 2 months that have passed since the President announced her nomination to be Secretary of State, and that record, I am afraid, is one of intimate--intimate--involvement in a number of administration foreign policies which I strongly oppose. These policies have fostered enormous opposition, both at home and abroad, to the White House's view of America's place in the world. That view of America is one which encourages our Nation to flex its muscles without being bound by any calls for restraint. The most forceful explanation of this idea can be found in the ``National Security Strategy of the United States,'' a report which was issued by the White House in September 2002. Under this strategy, the President lays claim to an expansive power to use our military to strike other nations first, even if we have not been threatened or provoked to do so. There is no question, of course, that the President of the United States has the inherent authority to repel attacks against our country, but this National Security Strategy is unconstitutional on its face. It takes the checks and balances established in the Constitution that limit the President's ability to use our military at his pleasure and throws them out the window. This doctrine of preemptive strikes places the sole decision of war and peace in the hands of a President--one man or woman--and undermines the constitutional power of Congress to declare war. The Founding Fathers required that such an important issue of war be debated by the elected representatives of the people, the people out there, in the legislative branch precisely, because no single man could be trusted with such an awesome power as bringing a nation to war by his decision alone. And yet that is exactly what the National Security Strategy proposes. Not only does this pernicious doctrine of preemptive war contradict the Constitution, it barely acknowledges the Constitution's existence. The National Security Strategy makes only one passing reference, one small passing reference, to the Constitution. It states that ``America's constitution''--that is ``constitution'' with a small ``c''--``has served us well''--as if the Constitution does not still serve this country well. One might ask if that reference to the Constitution is intended to be a compliment or an obituary. As National Security Adviser, Dr. Rice was in charge of developing the National Security Strategy. She also spoke out forcefully in favor of the dangerous doctrine of preemptive war. In one speech, she argues that there need not be an imminent threat before the United States attacked another nation. ``So as a matter of common sense,'' said Dr. Rice, on October 1, 2002, ``the United States must be prepared to take action, when necessary, before threats have fully materialized.'' But that ``matter of common sense'' is nowhere to be found in the Constitution. For that matter, isn't it possible to disagree with this ``matter of common sense''? What is common sense to one might not be shared by another. What's more, matters of common sense can lead people to the wrong conclusions. John Dickinson, the chief author of the Articles of Confederation, said in 1787, ``Experience must be our only guide; reason may mislead us.'' As for me, I will heed the experience of the Founding Fathers as enshrined in the Constitution over the reason and ``common sense'' of the administration's National Security Strategy. We can all agree that the President, any President, has the inherent duty and power to repel an attack on the United States. He doesn't have to call Congress into session to do that. That is a matter that confronts the Nation immediately and the people and our institutions are in imminent danger. But where in the Constitution can the President claim the right to strike another nation before it has even threatened our country, as Dr. Rice asserted in that speech? To put it plainly, Dr. Rice has asserted that the President holds far more of the warpower than the Constitution grants him. This doctrine of attacking countries before a threat has ``fully materialized'' was put into motion as soon as the National Security Strategy was released. Beginning in September 2002, Dr. Rice also took a position on the frontlines of the administration's efforts to hype the danger of Saddam's weapons of mass destruction. Dr. Rice is responsible for some of the most overblown rhetoric that the administration used to scare the American people into believing there was an imminent threat from Iraq. On September 8, 2002, Dr. Rice conjured visions of American citizens being consumed by mushroom clouds. On an appearance on CNN, she warned, ``The problem here is that there will always be some uncertainty about how quickly he,'' meaning Saddam, ``can acquire nuclear weapons. But we don't want the smoking gun to be a mushroom cloud.'' Dr. Rice also claimed that she had conclusive evidence about Iraq's alleged nuclear weapons program. During that same interview, she also said: We do know that he is actively pursuing a nuclear weapon. We do know that there have been shipments going into . . . Iraq, for instance, of aluminum tubes . . . that are really only suited for nuclear weapons programs. Well, my fellow Senators, we now know that Iraq's nuclear program was a fiction. Charles Duelfer, the chief arms inspector of the CIA's Iraq Survey Group, reported on September 30, 2004 as follows: Saddam Husayn ended the nuclear program in 1991 following the Gulf War. [The Iraq Survey Group] found no evidence to suggest concerted efforts to restart the program. But Dr. Rice's statements in 2002 were not only wrong, they also did not accurately reflect the intelligence reports of the time. Declassified portions of the CIA's National Intelligence Estimate from October 2002 make it abundantly clear that there were disagreements among our intelligence analysts about the state of Iraq's nuclear program. But Dr. Rice seriously misrepresented their disputes when she categorically stated: We do know that [Saddam] is actively pursuing a nuclear weapon. Her allegation also misrepresented to the American people the controversy in those same intelligence reports about the aluminum tubes. Again, Dr. Rice said that these tubes were ``really only suited for nuclear weapons programs.'' But intelligence experts at the State Department and the Department of Energy believed that those tubes had nothing to do with building a nuclear weapon, and they made their dissent known in the October 2002 National Intelligence Estimate. This view, which was at odds with Dr. Rice's representations, was later confirmed by the International Atomic Energy Agency and our own CIA arms inspectors. Well, Dr. Rice made other statements that helped to build a case for war by implying a link--a link--between Iraq and September 11. On multiple occasions, Dr. Rice spoke about the supposed evidence that Saddam and al-Qaida were in league with each other. For example, on September 25, 2002, Dr. Rice said on the PBS NewsHour: No one is trying to make an argument at this point that Saddam Hussein somehow had operational control of what happened on September 11, so we don't want to push this too far, but this is a story that is unfolding, and it is getting clear, and we're learning more. . . . But yes, there clearly are contact[s] between Al Qaeda and Iraq that can be documented; there clearly is testimony that some of the contacts have been important contacts and that there is a relationship there. Well, what Dr. Rice did not say was that some of those supposed links were being called into question by our intelligence agencies, such as the alleged meeting between a 9/11 ringleader and an Iraqi intelligence agent in Prague that has now been debunked. These attempts to connect Iraq and al-Qaida appear to be a prime example of cherry-picking intelligence to hype the supposed threat of Iraq while keeping contrary evidence away from the American people, wrapped up in the redtape of top secret reports. Dr. Rice pressed the point even further, creating scenarios that threatened tens of thousands of American lives, even when that threat was not supported by intelligence. On March 9, 2003, just 11 days before the invasion of Iraq, Dr. Rice appeared--where?--on Face the Nation. What did she say? She said: Now the al-Qaida is an organization that's quite dispersed and--and quite widespread in its effects, but it clearly has had links to the Iraqis, not to mention Iraqi links to all kinds of other terrorists. And what we do not want is the day when Saddam Hussein decides that he's had enough of dealing with sanctions, enough of dealing with, quote, unquote, ``containment,'' enough of dealing with America, and it's time to end it on his terms, by transferring one of these weapons, just a little vial of something, to a terrorist for blackmail or for worse. How scary is that? But the intelligence community had already addressed this scenario with great skepticism. In fact, the CIA's National Intelligence Estimate from October 2002 concluded that it had ``low confidence'' that Saddam would ever transfer any weapons of mass destruction-- weapons that he did not have, as it turned out--to anyone outside of his control. This is yet more evidence of an abuse of intelligence in order to build the case for an unprovoked war with Iraq. And what has been the effect of the first use of this reckless doctrine of preemptive war? In a most ironic and deadly twist, the false situation described by the administration before the war, namely, that Iraq was a training ground for terrorists poised to attack the United States, is exactly the situation that our war in Iraq has created. But it was this unjustified war that created the situation that the President claimed he was trying to prevent. Violent extremists have flooded into Iraq from all corners of the world. Iraqis have taken up arms themselves to fight against the continuing U.S. occupation of their country. According to a CIA report released in December 2004, intelligence analysts now see Iraq, destabilized by the administration's ill- conceived war, as the training ground for a new generation of terrorists. That is from the report ``Mapping the Global Future: Report of the National Intelligence Council's 2020 Project,'' page 94. It should be profoundly disturbing to all Americans if the most dangerous breeding ground for terrorism has shifted from Afghanistan to Iraq simply because of the administration's ill-advised rush to war in March 2003. Dr. Rice's role in the war against Iraq was not limited to building the case for an unprecedented, preemptive invasion of a country that had not attacked us first. Her role also extends to the administration's failed efforts to establish peace in Iraq. In October 2003, 5 months after he declared ``mission accomplished,'' the President created the Iraq Stabilization Group, headed by Dr. Rice. The task of the Iraq Stabilization Group was to coordinate efforts to speed reconstruction aid to help bring the violence in Iraq to an end. But what has the Iraq Stabilization Group accomplished under the leadership of Dr. Rice? When she took the helm of the stabilization group, 319 U.S. troops had been killed in Iraq. That number now stands at 1,368, as of today, Tuesday, January 25, 2005. More than 10,600 troops have been wounded, and what horrible wounds. The cost of the war has spiraled to $149 billion. That is $149 for every minute since Jesus Christ was born. And the White House is on the verge of asking Congress for another $80 billion. Despite the mandate of the Iraq Stabilization Group, the situation in Iraq has gone from bad to worse. More ominously, the level of violence only keeps growing week after week after week, month after month, and no administration official, whether from the White House, the Pentagon, or Foggy Bottom has made any predictions about when the violence will finally subside. Furthermore, of the $18.4 billion in Iraqi reconstruction aid appropriated by Congress in October 2003, the administration has spent only $2.7 billion. Now, with these funds moving so slowly, it is hard to believe that the Iraq Stabilization Group has had any success at all in speeding the reconstruction efforts in Iraq. For all of the hue and cry about the need to speed up aid to Iraq, one wonders if there should be more tough questions asked of Dr. Rice about what she has accomplished as the head of this group. There are also many unanswered questions about Dr. Rice's record as the National Security Adviser. Richard Clarke, the former White House counterterrorism adviser, had leveled scathing criticism against Dr. Rice and the National Security Council for failing to recognize the threat from al-Qaida and Osama bin Laden in the months leading up to the September 11, 2001, terrorist attack. In particular, Mr. Clarke states that he submitted a request on January 25, 2001, for an urgent meeting of the National Security Council on the threat of al-Qaida. However, due to decisions made by Dr. Rice and her staff, that urgent meeting did not occur until too late. The meeting was not actually called until September 4, 2001. Mr. Clarke, who was widely acknowledged as one of the Government's leading authorities on terrorism at that time, told the 9/11 Commission he was so frustrated with those decisions that he asked to be reassigned to different issues and the Bush White House approved that request. Dr. Rice appeared before the 9/11 Commission on April 8, 2004, but, if anything, her testimony raised only more questions about what the President and others knew about the threat to New York City and Washington, DC, in the weeks before the attacks, and whether more could have been done to prevent them. Why wasn't any action taken when she and the President received an intelligence report on August 6, 2001, entitled ``Bin Laden Determined to Attack Inside the United States''? Why did Dr. Rice and President Bush reassign Richard Clarke, the leading terrorism expert in the White House, soon after taking office in 2001? Why did it take 9 months for Dr. Rice to call the first high-level National Security Council meeting on the threat of Osama bin Laden? As the Senate debates her nomination today, we still have not heard full answers from Dr. Rice to these questions. In addition to Mr. Clarke's criticism, Dr. David Kay, the former CIA weapons inspector in Iraq, also has strong words for the National Security Council and its role in the runup to the war in Iraq. When Dr. Kay appeared before the Senate Intelligence Committee on August 18, 2004, to analyze why the administration's prewar intelligence was so wrong about weapons of mass destruction, he described the National Security Council as the ``dog that didn't bark'' to warn the President about the weaknesses of those intelligence reports. Dr. Kay continued: Every President who has been successful, at least that I know of, in the history of this republic, has developed both informal and formal means of getting checks on whether people who tell him things are in fact telling him the whole truth. . . . The recent history has been a reliance on the NSC system to do it. I quite frankly think that that has not served this President very well. What Dr. Kay appeared to state was his view that the National Security Council, under the leadership of Dr. Rice, did not do a sufficient job of raising doubts about the quality of the intelligence about Iraq. On the contrary, based upon Dr. Rice's statements that I quoted earlier, her rhetoric even went beyond the questionable intelligence that the CIA had available on Iraq in order to hype the threats of aluminum tubes, mushroom clouds, and connections between Iraq and September 11. In light of the massive reorganization of our intelligence agencies enacted by Congress last year, shouldn't this nomination spur the Senate to stop, look, and listen about what has been going on in the National Security Council for the last 4 years? Don't these serious questions about the failings of the National Security Council under Dr. Rice deserve a more thorough examination before the Senate votes to confirm her as the next Secretary of State? Mr. President, accountability has become an old-fashioned notion in some circles these days. But accountability is not a negotiable commodity when it comes to the highest circles of our Nation's Government. The accountability of Government officials is an obligation, not a luxury. Yet accountability is an obligation that this President and this President's administration appear loathe to fulfill. Instead of being held to account for their actions, the architects of the policies that led our Nation down the road into war with Iraq, policies based on faulty intelligence and phantom weapons of mass destruction, have been rewarded by the President with accolades and promotions. Instead of admitting to mistakes in the war on Iraq, instead of admitting to its disastrous aftermath, the President and his inner circle of advisers continue to cling to myths and misconceptions. The only notion of accountability that this President is willing to acknowledge is the November elections, which he has described as a moment of accountability and an endorsement of his policies. Unfortunately, after-the-fact validation of victory is hardly the standard of accountability that the American people have the right to expect from their elected officials. It is one thing to accept responsibility for success; it is quite another to accept accountability for failure. Sadly, failure has tainted far too many aspects of our Nation's international policies over the past 4 years, culminating in the deadly insurgency that has resulted from the invasion of Iraq. With respect to this particular nomination, I believe there needs to be accountability for the mistakes and missteps that have led the United States into the dilemma in which it finds itself today, besieged by increasing violence in Iraq, battling an unprecedented decline in world opinion, and increasingly isolated from our allies due to our provocative, belligerent, bellicose, and unilateralist foreign policy. Whether the administration will continue to pursue these policies cannot be known to Senators today as we prepare to cast our vote. At her confirmation hearing on January 18, Dr. Rice proclaimed that our interaction with the rest of the world must be a conversation, not a monologue, but 2 days later, President Bush gave an inaugural address that seemed to rattle sabers at any nation that he does not consider to be free. Before Senators cast their votes, we must wonder whether we are casting our lot for more diplomacy or more belligerence, reconciliation, or more confrontation. Which face of this Dr. Jekyll and Mr. Hyde foreign policy will be revealed in the next 4 years? Although I do not question her credentials, I do oppose many of the critical decisions Dr. Rice has made during her 4 years as National Security Adviser. She has a record, and the record is there for us to judge. There remain too many unanswered questions about Dr. Rice's failure to protect our country before the tragic attacks of September 11, her public efforts to politicize intelligence, and her often stated allegiance to the doctrine of preemption. To confirm Dr. Rice to be the next Secretary of State is to say to the American people and to the world that the answers to those questions are no longer important. Her confirmation will almost certainly be viewed as another endorsement of the administration's unconstitutional doctrine of preemptive strikes, its bullying policies of unilateralism, and its callous rejection of our longstanding allies. Dr. Rice's record in many ways is one to be greatly admired. She is a very intelligent lady, very knowledgeable about the subject matter, very warm and congenial, but the stakes for the United States are too high. I cannot endorse higher responsibilities for those who helped to set our great country down the path of increasing isolation, enmity in the world, and a war that has no end. When will our boys come home? When will our men and women be able to sit down at the table with their families and their friends in their own communities again? For these reasons, I shall cast my vote in opposition to the confirmation of Condoleezza Rice to be the next Secretary of State. I yield the floor.

Mr. BYRD

Mr. BYRD. Mr. President, today, the Congress gathers to exercise the role laid out by the Framers in the Constitution of the United States. The past two national elections have been surrounded in controversy, not just controversy over issues and ideas--which is important and healthy in a democratic system of government--but also controversy over the mechanics of the election and the counting of the votes. The 2000 election left citizens across this country with a belief that not every vote was fairly counted. In response, Congress passed a much-needed reform legislation. States worked to modernize their equipment and procedures. We had high hopes that the 2004 election-- under much closer scrutiny than the election of 2000--would provide the public with confidence that everyone who registered would be able to vote, and that every vote cast would be counted accurately. Yet, despite the legislation and the more than $2 billion dedicated to fixing the election problems, the election of 2004 was marred with reports of irregularities and, as a result, there is a significant group of our citizenry that seriously questions the results of the vote, and particularly the vote in Ohio. There are several groups and organizations that are investigating the reported irregularities in the Ohio election. That is important work and it should and will continue. When the investigations conclude, should there be solid evidence of criminal activity, those responsible should be prosecuted, no matter how high that responsibility may reach. But the Senate should not prejudge the results of those investigations. I applaud the efforts of the Senator from California, Mrs. Boxer, and the Congressional Black Caucus to defend the integrity of the electoral process. But the question before us today is whether we uphold the objection to the certification of Ohio's electors in the count of the electoral vote. The Senate must vote, based on the information available to us at this moment, and absent the clear conclusions of the ongoing investigations into reported irregularities in Ohio, I shall vote to allow the electoral count to proceed. In this session of Congress, I hope that we can take the lessons learned from November and continue to improve the integrity of elections and encourage greater faith in the results. The legitimacy of our government rests upon the confidence of the people. We, in Congress, must get serious about crafting legislation aimed at restoring confidence in the most fundamental characteristic of a representative democracy, the Constitutional right and duty to vote.

Mr. BYRD

Mr. BYRD. Madam President, am I recognized?

Mr. BYRD. What does ``in the queue'' mean in this situation? Madam President, maybe I can shed just a little bit of light here to help. I do not intend to take the full 2 hours which have been allotted to me under a previous request. I will be very happy to yield to the very distinguished senior Senator from Virginia at this time if he so wishes to precede me.

Mr. BYRD. Madam President, as I say, I will not use the full 2 hours. There will be ample time, I am sure, for some of the others whose names have already been mentioned. When I refer to the distinguished Senator from Virginia, may I take this opportunity to thank him for the service he continues to give to the country and to his constituents, the people of the great State of Virginia. I have noted in the press some of the concerns he has expressed with respect to this particular legislation, and I am sure those concerns have led to improved legislation, certainly improved chances for its passage today, and I want to thank him for that.

Mr. BYRD. Mr. President, I thank the managers of this bill, Senator Collins and Senator Lieberman, for the courtesies which they never failed to extend. I have the utmost respect for the dedication and for the knowledge which they have brought to this particular subject matter. They have spent many weeks, days, and hours in the consideration of this matter in the committee, on the Senate floor, in the conference, and their kindnesses, their studies, their knowledge, their ability to translate into action the concerns that so many of us have held with respect to intelligence is something worthy of admiration. I also thank Senator Roberts and my colleague in the Senate from West Virginia, Senator Rockefeller. They, too, have worked hard and have contributed much and will continue to do so. I recognize that these Senators have worked tirelessly since last summer in trying to craft the best legislation possible. So I have to compliment these Senators. I have to salute them. I have to respect them for their tenacity. I regret that I cannot join them in supporting the conference report. I will vote against it. Mine may be the only vote against it, for that matter. But I feel that I must speak out and must vote my own sentiments as I attempt to represent the people of West Virginia according to my own lights. I know the families of the individuals who perished in the September 11 attacks are following the proceedings of the Senate closely today, and my sympathies go out to them, as my sympathies did immediately after the terrible tragedy that befell them and befell the Nation. As chairman of the Appropriations Committee at that time, I responded in a very positive way. We passed a $40 billion appropriations bill within 3 days. That is somewhat of a record, I must say. Again, I say, we enacted--when I say ``we,'' I mean the entire Congress--a $40 billion appropriations bill within 3 days of that tragic happening. These families who have grieved over the loss of their loved ones for more than 3 years, and who will continue to grieve over these losses throughout their lifetimes, have been critical to the efforts to create the 9/11 Commission and allow their thorough investigation to be completed. The greatest tribute to their efforts of these past years would be for the Congress to get these intelligence reforms right. When the elected representatives of the people allow themselves to be coerced into a process that encourages the abdication of our responsibility to understand and fully debate and thoroughly review legislation, the people are robbed of their voice and their government. Senators take an oath to defend the Constitution of the United States. I have taken that oath many times over these 58 years that I have served in public office. Common sense suggests that that means reading and studying the legislation before the Congress. We are dutybound to explore the opinions on all sides of an issue and, especially an issue that is so serious as is this one, we are dutybound to work toward a process that does not exclude opponents or silence the opposition. In its heyday, the Senate, this body, the U.S. Senate, was known as the greatest deliberative body in the world. It should still be that. I wonder if it is. What we have seen in recent times, however, is a hollow shell, a hollow shell of that noble tradition. Time after time after time, the Senate forgoes its responsibility to deliberate and to carefully review legislation, and even defers to others to craft legislation for it. Legislation is passed by the Senate and then, all too often, hastily rewritten in a conference report behind closed doors marked, as it were, ``no minority view admitted.'' All too often during the 108th Congress, the party leadership has held bills until just before a recess and then employed disingenuous rhetoric about, ``Oh, last opportunities, these are the last opportunities to get something done.'' Senators, preoccupied with holiday schedules and holiday travel plans, for example, roll over timidly and accept whatever is placed in front of them. They do it. They do it time and time again. And they importune those Senators who might be hopeful of speaking out and spending some time and debating with their colleagues. These Senators are pressured by their colleagues and by the leadership and by the White House to roll over and let the vote come and let us go home. I anguish about the eroding character of the Senate. I have now served in this Senate 46 years. I have seen the Senate when it took the time to speak and to debate and to amend, to ask questions. I have seen those times, and those were the great days for the Senate. It fulfilled its duties to the American people and to the Framers, to the forefathers, to those who have preceded us. I greatly regret that those days seem to be gone. They seem to be gone. I anguish, as I say, about the eroding character of this body. I anguish about the message it sends to the American people when this body allows itself to be stampeded, as it so often does allow itself to be stampeded, into passing legislation without thorough examination. Oh, we congratulate ourselves on a job well done and then vote overwhelmingly in support of the legislation, and yet we cannot even be bothered to ask questions about the changes made in conference. Like pigmies on the battlefield of history, we cower like whipped dogs in the face of political pressure when it comes to issues such as intelligence reform. I felt the pressure to forego any speech, forego any request for a rollcall vote but just to let it pass by voice vote. Can you imagine that? Let this piece of legislation pass by voice vote; oh, Senators have travel plans, and it would be well if we could just have a voice vote. We have too much of that around here. I for one have a rebellious feeling against our relaxing in our duties to the Senate and to the people by giving in to such pressure. I do not claim to know as much about this legislation as the managers of the bill. But I do know about process. And it galls me that the Senate has allowed itself to be jammed against a time deadline time and time and time again--and in this instance, jammed against a time deadline in considering this conference report. This is the most far-reaching reorganization of our intelligence agencies since 1947. These changes will remain for decades, and these changes will impact upon the security of our Nation at countless levels. Such matters ought to be held to a higher standard of consideration by the Congress than is the case here. This conference report has been reworked and redrafted over the course of 2 months in a closed-door conference, and the Senate has only received a printed copy of the conference agreement less than 24 hours ago. I don't know what is in the conference report. I would say that any other Senator who stands before this Senate and tells the American people he or she knows what is in the conference report is like the emperor who had no clothes. As late as yesterday, the conferees were still making changes. It is outrageous, outrageous, to expect Senators to read and understand a 615-page measure in less than 24 hours. Is that the way we ought to legislate? Here we have young pages who come here from all States of the Union. They expect to learn how legislation is made, how the Senate works, how we Senators perform in the bright lights of publicity, how we do the people's business. I know they read the casebooks and the history books and the textbooks and all these things about how legislation is made. They come here with bright eyes, open eyes, open ears, great hope, great aspirations, and they work for what I say has been rightly called the greatest deliberative body in the world. Is this deliberation, a 600-page report? If I stood before the American people and said I can vouch for everything that is in this, I know what is in it, the people would know I am misleading them, wouldn't they? But this is so often the way it is. We allow ourselves to be pressured by the leadership. The leadership calls up measures here in the Senate. Any Senator can make a motion to proceed. But Senators don't do that. They defer to the majority leader. I have been the majority leader. I have been the minority leader. Senators defer to the majority leader, whether it is a Democrat or a Republican, to call up measures. I say that we often just do not have the debates the Senate should give to important measures. This conference report--as I say, it is outrageous for Senators to understand the 600-page bill in less than 24 hours. I want to call attention to the Washington Post of today and its lead editorial titled ``Reform In Haste.'' I shall just take the time to read the first two paragraphs of today's Washington Post lead editorial titled ``Reform In Haste.'' I quote therefrom: The rhetoric emanating from the Capitol Hill in the past few days may have created the impression that, after a hard- fought battle over key provisions, Congress worked its way to a sensible plan for reorganizing the U.S. intelligence community. Sadly, that is far from the truth. The 600-page omnibus measure on its way to approval yesterday had not been read or carefully considered by the vast majority of members, including some of those most involved in its construction. What passed for a debate in the past couple of weeks was actually little more than a turf battle by Pentagon satraps and the Congressmen who share their interests on issues that are marginal to the broad reorganization outlined in the legislation. That shake-up, driven by an odd combination of election- year politics and the determination of the September 11 commission to leave a mark, may improve the quality of intelligence information supplied to the President and other key policymakers; we have our doubts. Like the passage of the USA Patriot Act or the creation of the Department of Homeland Security, it has been mandated hastily and with scant consideration of its long-term consequences. That is what I am talking about. The Washington Post hit it right on the head. I tell you that I am not going to vote for legislation of this importance under such circumstances. I have done it before. I have voted against other legislation from time to time which I felt was being rammed through the Senate without proper consideration, without ample time for debate. And this measure, of course, cannot be amended. A conference report under Senate rules cannot be amended. So we have to take it or leave it, vote it up or down. We are buying a pig in a poke here, I can assure you. This conference report is very different from the legislation that passed the House of Representatives and the Senate 2 months ago. I have heard Senators here on the floor today talk about how this differs from the legislation that we passed in the Senate a few weeks ago. For example, a number of provisions related to the U.S. PATRIOT Act and the law enforcement powers have been inserted into this bill, which again has never been considered on the Senate floor. This legislation has encountered virulent opposition since the time of its conception. And while it may enjoy the support of the overwhelming majority of Members here today, nobody--I say nobody--can say with any confidence or certainty as to how this new layer of bureaucracy will affect our intelligence agencies or the security of our country. We don't know if it will enable the intelligence agencies or enable the Government in all its ramifications to better guard against a terrorist attack or whether it will cause a host of unforeseen problems. We are failing in yet another misguided rush to judgment to take the time and effort to find out. We are failing to take the time. It is a rush to judgment. There has been a mad scramble to cobble the pieces together and pass a bill. Oh, I have to pass a bill. The Senate barely understands how the experts line up on this bill. The 9/11 Commission is for it. That much we know. But former CIA Director George Tenet said last week he opposes this bill. That is sobering criticism from someone who, having left Government months ago, no longer has any turf to protect. A distinguished group of national security experts wrote in September that they oppose any intelligence reform this year. That group included former Senate Intelligence Committee Chairman David Boren; former Senator Bill Bradley; former Secretary of Defense Frank Carlucci; former Secretary of Defense Bill Cohen; former CIA Director Robert Gates; former Deputy Secretary of Defense John Hamre; former Senator Gary Hart; former Secretary of State Henry Kissinger; former Senate Armed Services Committee Chairman Sam Nunn; former Senator Warren Rudman; former Secretary of State George Shultz. We do not know how these experts regard this conference report. We do not know how they regard the bill today, but even months ago they urged we take more time. Henry Kissinger appeared before the Senate Appropriations Committee and urged we take more time. He suggested we take more time, even as much as perhaps 8 months--nothing this year. I read from an excerpt of a statement by former Secretary of State Henry Kissinger, as of Tuesday, September 21, this year: What we are urging is a time for reflection and a time for consideration with maybe a short deadline of 6 to 8 months, but to take it out of the immediate pressures of a period that is bound to affect the thinking. There we were, about to enter into the heat of an election campaign and Henry Kissinger was saying, whoa, whoa, wait a minute. Let's slow down. Let's take adequate time. Don't be pressured by the election. Let's don't do these things in such a hurry. We do not know what these experts regard how they would perceive this conference report today. I don't know how Henry Kissinger would judge it. He doesn't know what is in the conference report, just as I don't know what is in it. Why should Senators forego the valuable insight of almost every public figure who may actually be able to assess what is in the new version of intelligence reform? So I say again, let us not say we believe we understand what is included in this conference report. I don't understand it. We have not had the time to understand it. We do not have sufficient resources by way of assistance from capable staff people. They have not had the time. It is, in effect, a new bill and in some ways very different from anything the Senate has considered to date. Common sense suggests the Congress ought to hold hearings on the contents of this new measure so we may be informed by experts about its benefits and defects, so that we may ask questions, so that those questions and answers may be compiled into printed hearings so we all may have the benefit of the knowledge, the benefit of time to study and to reflect. There is no reason the Senate cannot proceed in this prudent matter early next year. Instead of viewing this conference report as the final stage of the process, we ought to consider it as the starting point for debate next year. It is only a few days away, next year. We ought to invite witnesses back to testify and allow the process to begin anew outside the election cycle and built on the foundations of knowledge acquired this year. Instead, we are allowing ourselves to be lulled into the fallacious belief that we must accept this bill, we must accept this conference report, we cannot amend it, we must accept it from page 1 through page 615. We have to accept it lock, stock, and barrel. We do not know what is in it. There may be several pigs in this poke, but we buy them all; we embrace the whole thing virtually sight unseen. We allow ourselves to be lulled into the fallacious belief that we must accept this bill or risk it not passing next year, with some even suggesting a terrorist attack could result from it. Now, a terrorist attack may happen, but it won't happen because this conference report would have been put over until next year. If it is going to happen, it will happen and nothing in this conference report would stop it if it happened next week or the next month or the next several weeks or months. That is nonsense. Don't believe it. I have heard even some comments from people who ought to know better on the TV saying, What I am concerned about, if we don't pass this report, I just hope we don't have another terrorist attack--as though passage of this conference report will make any difference to any terrorist who may be planning an attack next week or 10 days or the next month or the next 2 or 3 months. No legislation alone can forestall a terrorist attack on our country. The momentum is strong now to reform our intelligence agency. I submit the greater risk is not that the momentum will dissipate next year if this bill does not pass today or this week, but that the passage of this bill will remove any incentive to focus on the broader intelligence failures that have occurred outside the war on terror. This legislation is appropriately focused on the failings of September 11 but oblivious to the many other glaring deficiencies in our intelligence community. Our country went to war in Iraq, a war we should not have engaged in, a war in Iraq on the shoulders of false claims about weapons of mass destruction. But this bill dances around that issue on tippy toes. It is as though Congress is too afraid to mention the fact that faulty intelligence claims deceived the public out there, deceived the man and the woman on the street, deceived the people of this country into believing there was an imminent threat from Saddam Hussein. Why is Congress avoiding that critical issue? Is it because some do not wish to expose the role of the White House in feeding bad intelligence to the American people? The Founding Fathers intended Congress to be a check on the power of the Chief Executive, but increasingly Congress appears content merely to be a cheerleader for the President depending upon which party might be in control at a given moment. The intelligence bill fails to address the unfolding prison abuse scandals in Iraq, Afghanistan, and Guantanamo Bay. The Armed Services Committee has held six hearings on the abuse of prisoners in U.S. military jails. There is mounting evidence that the CIA had some hand in the mistreatment of detainees. The Red Cross has reported on the illegal practices of U.S. intelligence agencies holding ``ghost detainees'' in secret prisons. Why is this intelligence bill silent on such outrageous policies? How can Congress claim to fix what is wrong with our intelligence agencies if this major piece of legislation does not even address such colossal intelligence failures? The only way to reduce the risk of such failures is to ensure the accountability of this new Intelligence Director to the people's representatives in the Congress. It is the Congress that must make the decision to declare war, and it is the Congress that is responsible for the oversight of this new intelligence program to help guard against future intelligence failures. It is paramount that the Congress do everything possible to ensure itself access to timely, objective intelligence. Yet that is not what we see in this legislation. This conference report eliminates provisions to ensure that the Congress receives timely access to intelligence. It also allows the White House's Office of Management and Budget to screen testimony before the Intelligence Director presents it to the Congress. Whistleblower protections for intelligence officials who report to the Congress have also been stricken from the Senate-passed bill. The conference agreement creates senior intelligence positions but exempts many of them from confirmation by the Senate. It eliminates the privacy and civil rights officers included in the Senate-passed bill. It strips 18 pages of legislative text that would have created an inspector general and ombudsman to oversee the Intelligence Director's office. That language has been replaced with one paragraph, authorizing the Intelligence Director, at his discretion, to create or not to create an inspector general, and provides the Director with the power to decide which, if any, investigative powers to grant the inspector general. That means the new Intelligence Director could exempt his office from inspector general audits and investigations, and that the Congress would not receive reports from an objective internal auditor. The Congress is limiting its own access to vital information within this new intelligence office, and it will have thereby compromised an essential mechanism for identifying potential abuses within the new intelligence program. Given the dark history of abuses of civil liberties and privacy rights by our intelligence community, I had hoped that the Congress would exercise more caution, but it has not done so in this legislation. The 9/11 Commission recognized that its recommendations call for the Government to increase its presence in people's lives, and so it wisely endorsed the creation of an independent Civil Liberties Board to defend our privacy rights and liberties. The Senate-passed bill embraced this recommendation and included additional protections to help ensure that executive agencies could not exert undue influence on the Board. This conference agreement, however, scuttles those protections by burying the Board deep inside the Office of the President, subjecting Board members to White House pressure. Why? The conferees included language making changes to the 1978 Foreign Intelligence Surveillance Act, the law that blurs the rules on electronic surveillance and physical searches by the U.S. Government. This conference report, though, states that the Intelligence Director shall have authority to direct or undertake electronic surveillance and physical search operations pursuant to FISA if authorized by statute or executive order. This is dangerous ground, isn't it? This is dangerous ground to walk when the President, through executive order, and without the authorization of the Congress, can direct this new Intelligence Director to undertake electronic surveillance and physical search operations. Yet another provision would make terrorist crimes subject to a rebuttable presumption of pretrial detention, which means that prosecutors will not be required to show a judge that the defendant is a flight risk. Instead, the defendant will be presumed to be a flight risk. Are Senators sure we are not trampling on the civil liberties of the American people with the hasty passage of this conference report? Again, few, if any, Senate hearings have been held on these provisions by the full Senate Judiciary Committee. The inclusion of these provisions in title VI, with so little examination of their real meaning, reminds one of how the PATRIOT Act itself was enacted in haste without sufficient review, and with no real understanding of its true consequences. These are unsettling provisions, and the Senate ought to insist on its rights to consider them more carefully. The Senate has not had enough time to understand this legislation or its implications. This new Intelligence Director has been granted significant authorities, and the Congress has not done enough to ensure adequate checks on the actions of the Intelligence Director. With regard to homeland security, the bill authorizes a significant increase in the number of Border Patrol agents, immigration investigators, and a significant increase in the number of beds for immigration detention. The bill also authorizes increased funding for air cargo security and for screening airline passengers for explosives. All of these are worthy goals, but the provisions are just empty promises. Last September, when I offered an amendment to the Homeland Security appropriations bill to fund these precise activities, the White House opposed the amendment and my Republican colleagues lined up, virtually to the man or woman, and voted against it. And today, Members will line up and vote for more empty promises. President Bush had the opportunity to support Congressman Sensenbrenner and insist on tougher immigration reforms in this bill, but the President welched. Senators talk about reforms needed to protect against terrorism, and the fact is that this bill is a hodgepodge of empty border security promises that the administration has no intention of funding--and I am certainly concerned about that; no intention of funding--and that will only encourage the kind of illegal immigration that leaves our country wide open to terrorists.

Mr. BYRD. Yes, I will yield.

Mr. BYRD. Very well. Will the distinguished Senator inform me as to how much time?

Mr. BYRD. Does the Senator wish me to yield at this point?

Mr. BYRD. Yes.