Larry Craig

Mr. CRAIG

Mr. CRAIG. Mr. President, I would like to announce for the information of the Senate and the public that a hearing has been scheduled before the Subcommittee on Public Lands and Forests of the Committee on Energy and Natural Resources. The hearing will be held on Wednesday, March 1st at 2:30 p.m. in room SD-366 of the Dirksen Senate Office Building. The purpose of the hearing is to review the role of the Forest Service and other Federal agencies in protecting the health and welfare of foreign guest workers carrying out tree planting and other service contracts on National Forest System lands, and to consider related Forest Service guidance and contract modifications issued in recent weeks. Because of the limited time available for the hearing, witnesses may testify by invitation only. However, those wishing to submit written testimony for the hearing record should send two copies of their testimony to the Committee on Energy and Natural Resources, United States Senate, Washington, DC 20510-6150. For further information, please contact Frank Gladics or Sara Zecher.

Mr. CRAIG

Mr. CRAIG. Mr. President, I rise today to express my agreement with President Bush's belief that our country's security depends in large part on a diverse energy portfolio, one that is not overly reliant on any one energy source, especially sources of foreign origin. I agree with the President that this country is overly dependent on foreign oil. Consistent with that belief, the Bush administration has just announced a potentially far-reaching energy program known as the Global Nuclear Energy Partnership or GNEP. This program provides a wide- reaching, long-term plan for establishing a robust and sustainable future for nuclear energy in this country and abroad. The Global Nuclear Energy Partnership promises to provide abundant energy, without emitting greenhouse gases; to recycle used nuclear fuel in order to minimize waste; to safely and securely allow developing nations to deploy nuclear power to meet their energy needs, while reducing proliferation risks; to assure maximum energy recovery from still-valuable used nuclear fuel; and to allow the U.S. to rely on a single geologic waste repository for the rest of this century. Nuclear energy currently provides about 20 percent of this Nation's electricity, and does so without emitting any carbon, greenhouse gases, or other air pollutants. All the waste generated by commercial nuclear powerplants is securely managed and destined for safe, permanent disposal in a geologic repository. However, according to current law, that repository can contain only slightly more than the amount of waste already stored at existing reactor sites. Even if the law is changed, the repository at Yucca Mountain can only accommodate about the amount of spent nuclear fuel that will be generated by the existing reactors in this country over their lifetimes. If nuclear power is to have a future in this country, even to maintain its current 20 percent share of electricity generation, either a second repository will need to be developed soon-- with many more to follow--or an alternative means of managing this waste is needed. After a single use, spent nuclear fuel retains more than 95 percent of its energy potential. That energy potential could be tapped by reprocessing the spent fuel, recycling the useable part and disposing of the rest as waste, which makes up only about 3-4 percent of the spent fuel. This could substantially reduce the amount of long-lived nuclear waste requiring burial in a geologic repository, and could extend the lifetime of the Yucca Mountain repository many fold. But efforts to recycle spent fuel were abandoned in this country back in the 1970s, largely because of concerns about nuclear proliferation. Those concerns stemmed from the fact that, at that time, the method used to recycle spent fuel, the ``PUREX'' process, separated out pure plutonium, which might be used to construct a nuclear bomb. During the 30-plus years since then, the U.S. has--through research at its National Laboratories--made considerable progress in developing new methods for reprocessing spent fuel that are much less prone to proliferation risks, because they do not separate out pure plutonium, but keep it mixed with other actinides. This mixture is not readily used for nuclear weapons. Reintroducing recycling into this country's strategy for managing spent fuel is a major change in policy, and one that deserves serious discussion. That discussion should be based on fact and not emotion; should address current technologies, not those from more than a generation ago; and should consider reasonable alternatives to maintaining nuclear energy as a viable part of our Nation's energy supply. And what reasonable alternatives are there? Total electricity consumption in the U.S. is projected to increase by about 40 percent by 2025. Wind and solar energy cannot provide large-scale, base-load electricity, because they are intermittent energy sources. Hydro provides about 10 percent of our electricity right now, but building new dams to fully accommodate the increased demand is not possible. Relying solely on fossil fuels to make up the difference is environmentally irresponsible, and with the price of natural gas increasing dramatically, less economically appealing. Nuclear energy is the most environmentally sound technology capable of adequately meeting such increased demand. But even simply maintaining the current share of electricity generation provided by nuclear energy will require constructing many new nuclear powerplants in this country. So should we continue to push for opening Yucca Mountain to begin accepting waste as soon as possible? The answer is clearly yes. Electric utilities demand confidence that spent fuel will be managed responsibly if they are going to continue to build new nuclearpower plants in the U.S. But can we build many more Yucca Mountains to accommodate the additional waste? I think the answer is clearly no. Still, new nuclear powerplants are being planned--and not only in this country, which has not ordered a new nuclear plant in 30 years, but around the world. China, Russia, several European countries, and others are planning--or building--new nuclear powerplants. Somewhere between 100 and 150 new nuclear plants are likely to be built in the next 20 years or so. In fact, the U.S., despite having pioneered nuclear power, risks falling far behind in this home-grown technology. Furthermore, the growth in nuclear power worldwide, while avoiding the potential environmental impact of a similar number of fossil-fuel powerplants, raises serious concerns about nuclear proliferation. An increasing number of countries are interested in developing nuclear power, and in some cases, developing or acquiring technologies that could lead to their ability to produce nuclear weapons. North Korea and Iran constantly remind us of the potential danger. Therefore, the U.S. and other responsible nuclear-capable countries need to work together to help developing countries acquire clean, affordable energy, but not the means to develop nuclear weapons. And this is another farsighted goal of the Global Nuclear Energy Partnership. Through GNEP, this administration proposes to work with international partners to help developing nations deploy proliferation- resistant and emission-free nuclear energy by developing international fuel services and small-scale modular reactors. Finally, if this country is to eventually wean itself off its dependence on foreign oil and gas, we need to develop a clean-burning fuel for transportation. In fact, even if nuclear power replaced all the fossil-fueled powerplants in this country, it would make little impact on our oil use. We would still need to import about 70 percent of our oil for transportation. This need to reduce our dependence on foreign oil, in addition to reducing carbon emissions, was the impetus for President Bush to propose his Hydrogen Initiative in the 2001 State of the Union, and he has restated his convictions in all subsequent State of the Union addresses. Consistent with President Bush's vision, we must continue our efforts to make the transition to a hydrogen-based economy, and we need to generate that hydrogen by using environmentally responsible technologies. Nuclear energy provides one such technology with high- temperature reactors such as the Next Generation Nuclear Plant that will be able to produce market-competitive hydrogen. Nuclear power has the potential to provide clean, affordable, and emission-free electricity to an increasingly energy-hungry world, and the next generation of nuclear plants will produce fuel for transportation in an increasingly oil-starved world. Access to affordable energy is crucial for improved quality of life and overall economic prosperity. The Global Nuclear Energy Partnership promises to increase energy security, both here in the United States and abroad. It will encourage environmentally responsible energy development around the world, and will provide that energy with minimal impact on the environment. I congratulate our President for his vision and commitment to helping make all this possible.

Mr. CRAIG

Mr. CRAIG. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. CRAIG. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. CRAIG

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

Mr. CRAIG. Mr. President, I am here today to discuss the nomination of Judge Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court. Over 200 years ago, the Framers of the United States Constitution had a similar discussion. On the topic of judicial nominations, they emphasized the need for qualified judges--those who possess virtue, honor, requisite integrity, competent knowledge of the laws, fit character, and those who have the ability to conduct the job with utility and dignity. They also talked about the courts that these judges sit on and warned against them exercising will instead of judgment, the consequence of which would be the substitution of the courts' pleasure to that of the legislative body. These principles have stood the test of time--have been a constant standard that has guided the Senate's constitutional obligation of advice and consent and--today, over two centuries later, we see these principles embodied in Judge Samuel Alito. You can tell this by Judge Alito's record. Judge Alito has served as a judge on the Third Circuit Court of Appeals for 15 years. He was confirmed unanimously by a voice vote and since his appointment, he has participated in more than 1,500 Federal appeals and written more than 350 opinions. From 1987 to 1990, he was the U.S. attorney for the District of New Jersey--the chief Federal law enforcement officer in the State. As a Federal prosecutor, he oversaw the prosecutions of numerous organized crime figures, white-collar criminals, environmental polluters, drug traffickers, terrorists, and other Federal defendants. Judge Alito also served as an Assistant to the Solicitor General from 1981-1985, arguing 12 cases before the Supreme Court and writing briefs or petitions in more than 250 cases. He was a Deputy Assistant Attorney General in the Office of Legal Counsel, which is the highest authority within the executive branch for answering legal questions and advising the federal government on complex statutory and constitutional questions. He is also a distinguished student and scholar. He earned his bachelor's degree from Princeton University and his law degree from Yale Law School, where he served as editor of the Yale Law Journal. You can also tell his qualifications by the kind of human being he is--and by the kind that others know him to be. Judge Edward Becker, Senior Court of Appeals Judge for the Third Circuit, who served with Judge Alito for 15 years, called him a wonderful human being, gentle, kind, considerate, patient, self- effacing, brilliant, highly analytical and meticulous, a soul of honor, with no chinks in the armor of his integrity. Judge Leonard Garth, who has known Judge Alito since he clerked for him in 1976 and served with him on the Third Circuit for the 15 years of Judge Alito's tenure there, called him thoughtful, modest, and self- effacing, and that it is rare to find humility such as his in someone of such extraordinary ability. And Edna Axelrod, a former colleague and lifelong Democrat, called him a man of unquestionable ability and integrity, one who approaches each case in an openminded way, seeking to apply the law fairly. You can also tell his qualifications from his judicial philosophy-- and the way he judges. Judge Becker testified that Judge Alito scrupulously adheres to precedent. A former colleague and friend of 20 years likewise said that those who know him know that he is not an ideologue, he does not use his position to pursue personal agendas, and he has a profound respect for the law and precedent. Judge Alito himself testified that he makes decisions knowing a judge can't have any agenda, a judge can't have any preferred outcome in any particular case, and a judge certainly doesn't have a client. The judge's only obligation--and it is a solemn obligation--is to the rule of law. And that means in every single case, the judge has to do what the law requires. All of these things--his record, character, and judicial integrity-- don't simply make him qualified to be an Associate Justice of the Supreme Court--they make him well qualified, according to the American Bar Association. After interviewing more than 300 people and analyzing nearly 350 published opinions, a panel at the ABA concluded that Judge Alito's integrity, his professional competence, and his judicial temperament are of the highest standard--and his time on the bench established a record of both proper judicial conduct and even-handed application in seeking to do what is fundamentally fair. Some of those now opposing the nomination of Judge Alito used to agree. When Judge Alito was in the process of being confirmed to the Third Circuit, one Senator said that Judge Alito ``obviously had a very distinguished record'' and commended him for his ``long service in the public interest.'' Another, referring generally to the nominations process, said ``we need to get away from rhetoric and litmus tests, and focus on rebuilding a constructive relationship between Congress and the courts . . . we do not need nominees put on hold for years . . . while we screen them for their Republican sympathies and associations.'' And the Senate did this some years ago. I recall when the nomination of Ruth Bader Ginsburg to the Supreme Court came before the Senate in 1993, I was confronted with a nominee whose past revealed that she had a vastly different political ideology than my own. My constituents from Idaho made clear just how different and how far out of the Idaho mainstream that ideology was. However, Justice Ginsburg was a judge of great ability, character, intellect, and temperament. Her record was replete with evidence of these qualities. And although at one time she had been a vocal advocate for particular political issues, she had a sharp understanding of the limited character of the judiciary and her role within it as a neutral arbiter, not an advocate. I voted for Ruth Bader Ginsburg. Not because she had the same ideology as I do, but because there was a lack of convincing evidence that she believed the Supreme Court was a place for judicial activism rather than restraint. Judge Alito's record reflects the same belief, perhaps even more so than Justice Ginsburg's. But now we have the same senators who supported him the first time around suddenly calling his record ``ominous'' and uniting their opposition on the basis of his alleged ``extreme views of executive power.'' In a recent hearing, Judge Alito acknowledged that ``the President, like everybody else, is bound by statutes that are enacted by Congress'' and that there is ``no question about that whatsoever.'' He also testified that ``as a judge, he would have no authority and certainly would not try to implement any policy ideas about federalism.'' There is nothing in Judge Alito's record to suggest otherwise. What his record does show is a man of character, competence, and integrity who can apply the laws, regardless of his own views. It is hard to argue against that. Let us vote to confirm Judge Samuel Alito as an Associate Justice of the Supreme Court.

Mr. CRAIG

Mr. CRAIG. Mr. President, I would like to announce for the information of the Senate and the public that a hearing has been scheduled before the Subcommittee on Public Lands and Forests. The hearing will be held on Wednesday, February 15, 2006, at 2:30 p.m. in Room SD-366 of the Dirksen Senate Office Building. The purpose of the hearing is to review the progress made on the development of interim and long-term plans for use of fire retardant aircraft in Federal wildfire suppression operations. Because of the limited time available for the hearing, witnesses may testify by invitation only. However, those wishing to submit written testimony for the hearing record should send two copies of their testimony, to the Committee on Energy and Natural Resources, United States Senate, Washington, DC 20510-6150. For further information, please contact Frank Gladics or Kristina Rolph of the Committee staff.

Mr. CRAIG

Mr. CRAIG. Mr. President, today, as you may know, Jim Connaughton, chairman of the White House Council on Environmental Quality, called for a comprehensive and collaborative approach to salmon recovery in the Pacific Northwest. While I may not agree completely with Chairman Connaughton's statement, we must stop ignoring what is going on. It is about time that someone speaks out about the reality of the situation in the Northwest in regards to salmon recovery. He proposed to end outdated hatchery programs and to stop harvest levels and practices that impede recovery of salmon listed under the Endangered Species Act, ESA. He also outlined a comprehensive collaborative process to promote a shared goal and responsibility of salmon recovery. As early as next week, the National Oceanic and Atmospheric Administration's fisheries service, NOAA Fisheries, will launch a collaborative review of how harvest and hatcheries are affecting the recovery of ESA-listed salmon and steelhead. There has been no clear direction in the past, and CEQ is taking the first step to provide a meaningful direction. We have sat back and idly watched while the region moved from injunction to injunction and lawsuit to lawsuit. In fact, over the past 2 years, two injunctions have been ordered and more lawsuits are being filed. This situation just fosters mistrust and the inability to meet common goals and objectives. Our past practices have focused on keeping the fish in the river and in abundant numbers so that we can have our cake and eat it, too. In no other place in the world do we treat an ESA-listed species this way. We don't raise bald eagles only to use their feathers for our clothes, so why do we spend hundreds of millions of dollars--each year--to recover the species, and then allow a majority of them to be killed through harvesting? The people who pay for these absurd practices are the Northwest ratepayers. Here are some facts that the region should know. The total cost of fish mitigation in the Northwest from 1978 to 2005 has been approximately $7 billion. Fish costs now make up to 30 percent of the Bonneville Power Administration's power rates, 30 cents of every dollar paid for BPA-managed power. Snake River Fall Chinook are the most impacted ESA-listed species in the Columbia River system. These fish drive BPA's fish and wildlife program. Approximately 40 percent to 60 percent of this species is harvested. Last summer, Judge Redden ordered a change in river operations that resulted in an approximately $75 million dollar hit to the region's ratepayers. This means that depending on how many fish survive, summer spill costs between $225,000 and $3 million per fish, and consequently, ratepayers are left with the bill. Even at $225,000 per fish, that is a lot of money. Judge Redden, once again, second-guessed the region's fish managers and made the decision to increase spill this spring and summer. This will result in another cost to the ratepayers of approximately $60 million dollars. Management of the river by the courts is not management at all. I would like to help the management agencies--the appropriate managers of the river system--to succeed in their efforts to manage the river, in partnership with local, State, and tribal governments. Why not trust the experts who have the scientific knowledge to make those decisions and help empower the region to work together instead of giving up and having the court systems make management decisions? How are we to succeed in the future if we keep allowing others to make our decisions for us? When will this silliness stop? When will the region take ownership and responsibility for the river? And when will we work together as a region and get serious about salmon recovery? CEQ made the first step today. I will work with other Members of Congress to finally face these challenges and to help provide direction and be more accountable to the public and to recovery of the species. If we are serious about recovery, we need to start acting serious and not avoid the tough questions. I would like to challenge my colleagues to come together in a bipartisan way to help the region get back on track.

Mr. CRAIG

Mr. CRAIG. Mr. President, I rise to commend Chairman Gregg on his leadership regarding the Deficit Reduction Act. The Budget Committee has had to make hard decisions and has labored to do so fairly. I have seen first-hand and appreciate the Chairman's dedication to the integrity of this process. On behalf of myself and Senator Burns, I would like to state for the record our understanding of the effect of the language in the bill regarding repeal of the Continued Dumping Subsidy Offset Act CDSOA. We understand that the bill requires distribution of all antidumping and countervailing duties finally determined, ultimately assessed on any and all imports of merchandise that are entered, or withdrawn from warehouse, for consumption by the deadline of October 1, 2007. Further, we understand that liquidation or assessment of duties need not occur prior to the deadline of October 1, 2007, as a condition of distribution and that the duties ultimately assessed will be distributed regardless of the date on which they are finally determined and collected. In other words, while appeals to U.S. courts or NAFTA panels or other proceedings at administrative agencies may prevent final assessment and collection of the duties owed until after the deadline of October 1, 2007, so long as the imports are entered, or withdrawn from warehouse, for consumption by that date, the duties ultimately assessed will be distributed annually under the processes currently specified in law. Finally, we understand that subsection (b) specifies that the CDSOA shall operate ``as if'' there had been no repeal; meaning that Customs will maintain all existing aspects of the program codified at 19 U.S.C. Sec. 1675c, and contained in accompanying regulations, including all accounting procedures, all administrative and other mechanisms, and all infrastructure in place to collect, account for, track, and distribute duties on merchandise entered, or withdrawn from warehouse, for consumption by the deadline of October 1, 2007. And at all times we would expect that collections of duties are to be pursued aggressively by U.S. Customs and Border Protection.

Mr. CRAIG. I thank the leader for that clarification and I appreciate all of his hard work in reaching this compromise language.

Mr. CRAIG

Mr. CRAIG. Mr. President, may I ask what the order is at this moment?

Mr. CRAIG

Mr. CRAIG. Mr. President, I rise today to express my concern that language was not included yet again by this Congress in the supplemental bill--which is now embodied in Defense appropriations--to clarify that categorical exclusions as used by the U.S. Forest Service under the Appeals Reform Act of 1993 are exempt from comment and appeals. That sounds technical, doesn't it? It isn't so technical if you believe in the Healthy Forest Act and the ability of the Forest Service, as so prescribed by the Congress, to operate under that specific act. A legislative fix is desperately needed as projects continue to pile up and create additional backlog for our U.S. Forest Service. At the heart of this issue is when, where, and how the public is included in the execution of categorical exclusions extended in the projects. By definition, categorically excluded projects are categories of action which do not individually or cumulatively have a significant effect on the human environment and therefore normally do not require further analysis in either an environmental assessment or an environmental impact statement. The Forest Service requires scoping on each and every project on Forest Service land in which they want to utilize the categorical exclusion. Let me quote from the Forest Service Environmental Procedures Handbook: Scoping is required on all proposed actions, including those that would appear to be categorically excluded. In other words, those actions the Forest Service may take on Forest Service ground in a given watershed that we have said are excluded under the Healthy Forest Act, as it relates to the National Environmental Policy Act--meaning an environmental impact statement--we still say the Forest Service scoping is required on all proposed actions, including those that would appear not to need a categorical exclusion. If the responsible officials determine, based on scoping, that it is uncertain whether the proposed action may have a significant effect on the environment, prepare an EA [and that is chapter 40]. If the responsible official determines, based on scoping, that the proposed actions may have a significant environmental effect, prepare an EIS. That is an environmental impact statement. In other words, we have tried to be very careful within the law to make sure that happens. I am going to submit for the Record a much more detailed understanding of what exactly we mean because it is critically important at this moment that we allow the Forest Service to get back on track. Having said that, I have talked legalese as it relates to a specific act of Congress and a law that is in place now for our Forest Service to act. What does it mean in real life, what does it mean on the ground? I think all of us witnessed the fires of late fall and early winter in the greater Los Angeles watershed that were burning the scrub oak in the foothill country in back of Los Angeles. In most instances, those fires in the past have not only consumed the scrub oak, they have consumed, in some instances, hundreds of beautiful and very expensive homes that are within those areas. This year, it is interesting that, of the thousands of acres that were burned, only one home was burned. In talking to the firefighters, why were they able to control the fires in a better way and why were fewer homes lost, they said very clearly, because it was the thinning and the cleaning of the brush and undergrowth that was allowed by the categorical exclusions of the Healthy Forest Act. In other words, the fuel buildup that naturally occurs on public lands, and in this instance in urban watersheds in which the Healthy Forest Act is more specific, categorical exclusions were granted. In other words, the scoping process of the Forest Service to determine the impact that the action of cleaning and thinning would have on public lands was determined not to be of major environmental consequence, and therefore the Forest Service was allowed to proceed. Along comes a judge just this summer and says: no no, you have to do an EA, you have to do an EIS, on all, including those provisions the Congress spoke specifically to as it related to categorical exclusions. In other words, within the category an exclusion is allowed for certain actions on forested public lands for the purpose of sustaining the quality of the watershed and the health of the forest, and so on and so forth. What is clearly a loss now is that the Forest Service, in planning for next year's actions on the ground--the thinning and the cleaning of our forests to ensure forest health, to bring down the overall threat of fire--has been dramatically diminished by this judge's action. We had hoped in the supplemental to gain the language necessary to reinstate the categorical exclusions, as was and as has been clearly debated as the intent of Congress. That has been denied. So when Congress reconvenes in January and early February, we are going to have to work overtime to make sure that we get this law into place. What does it mean? It means protecting watersheds. It means protecting homes that have been built up against the forested lands, doing the right kinds of actions which result in the cleaning up of our forests and the ensuring of the vitality of the environment within. What the judge's action means in essence is that you have to spend tens of millions of dollars perfecting an EA--or in this instance a full environmental impact statement--to be able to proceed. We believe that under certain circumstances where the health of the forest is critical, and in this instance the Los Angeles Basin, where we saw the action of being able to control fires because the overall fuel load on our public lands was dramatically reduced by the thinning and the cleaning in that region of the country--without that we simply will not be able to move forward as expeditiously as the Healthy Forest Act intended that we move. That is what is at issue here. I had hoped we would gain that. We have not gained that in the DOD appropriations and supplemental language that was applied. Federal lands recovery work that is going on in Mississippi and Louisiana and Texas, work that was caused by the hurricanes Katrina and Rita, is now included in this problem. So are, overall, 800 planned, categorically excluded low-impact projects and hazardous fuel reduction projects affecting over 234 communities and 200 currently planned, prescribed burning projects that, if delayed, would more than likely put them beyond optimum and safe burning conditions, delayed because of the action of the judge and therefore pushed off for another year. That is the critical nature of this issue and why I have come to the Chamber. As one of the chief cosponsors of the 1993 Appeals Reform Act, I know we had no expectation or belief that categorical exclusions placed in 1993 would be subject to the Appeals Reform Act. It is important that we move forward to clarify this language. I understand some on this floor today think otherwise. Perhaps it would be wise to review the amount of public participation involved in the development of the Categorical Exclusions regulations that both the Clinton administration and then the Bush administration have developed since the Appeals Reform Act was first passed in 1993. In the mid-1990s, the Clinton administration proposed significant changes to the Categorical Exclusions. They did this through an Administrative Procedures Act--APA--rulemaking process which included both a proposed and final rulemaking, including extensive review of numerous public comments. Those categorical exclusions withstood a number of legal challenges and remained in place until 2003. In 2000, the Bush administration undertook extensive analysis of thousands of projects to develop a series of new categorical exclusion proposals. After review of literally thousands of projects the Bush administration proposed a number of changes to the Clinton administration's categorical exclusions. They did this through an APA rulemaking that again included extensive public comments. I think it is important that my fellow Senators understand that the original Heartwood II settlement agreement, which attempted to nullify categorical exclusions, was rejected by the District Court in which it was brought and the case was dismissed. Now, the Eastern District Court of California has chosen to resurrect that settlement agreement and impose it nationally. I know that some people in the Chamber today may still be concerned that the land managers may miss something and not realize there could be a potential problem. Between the scoping that is required, the extraordinary assessment that is required, and the public notice requirements that will be required if this language is maintained, it is inconceivable to me that projects that might be environmentally detrimental could be carried out through the categorical exclusion process. This body should reject the efforts of the ``gum up the works'' crowd who want more process to slow down more projects. The current categorical exclusions are based on more data and analysis than anytime in history. We have more protections to ensure they are not misused than anytime in history, and we will have more public notice on categorical exclusions than anytime in history if we adopt the language in this bill. I hope this Congress sees fit to address this situation before it is too late. We thought we could. We will have to return early next year to get that kind of work done. What is at stake now is the health of the forest, the health of the watershed, and literally hundreds of thousands of homes spread across the landscape that are about or near public forest, public lands, that could find themselves in a condition that would jeopardize their presence by fire, which could ensure where fuel-laden lands exist. I thought it was important that I submit that for the Record because it is critically important that we move forward on that issue. I yield the floor.

Mr. CRAIG

Mr. CRAIG. Mr. President, I think in the closing moments prior to the cloture vote and following that the Senator was very open, and I appreciate his willingness to come together with the House to try to resolve it. What is most important--and I want to say it and I want to say it again--for those of us who offered the SAFE Act and stood together, our intent was not to kill the PATRIOT Act and it never has been. I would hope that this process does not end up in the PATRIOT Act expiring without modifications of it and the reauthorization of it. The chairman certainly has spent a good deal of time in that effort, as have I and many others. His willingness now to sit down and to attempt to work this out, all of that is doable and can be accomplished, especially if the time we are now involved in, in dealing with DOD conference and DOD reauthorization and the budget reconciliation conference is going to be protracted to the extent of the rules of the Senate, then we do have that time more than ever. I would hope it is possible to come together. I do know the Justice Department has stated that all ongoing investigations would not be compromised during the period of time in which the PATRIOT Act might expire. That is not the point. The point is we ought to do it. We ought to do it appropriately, and I would hope that in the end the chairman would take us as close to the Senate version as we could possibly get because I think the work that came out of the Senate Judiciary Committee is what this Senate ought to vote on once again and what ought to become law. I thank the chairman for yielding and I yield the floor.

Mr. CRAIG

Mr. CRAIG. Mr. President, I thank the ranking member of the Judiciary Committee for yielding. Let me also thank the chairman of the Judiciary Committee. I thought he gave a thoughtful overview of the progression of time and thought that has gone into the conference report that is before the Senate at this moment. Of all that we do this year that is lasting beyond tomorrow, clearly the PATRIOT Act is one of those pieces of legislation. I say that because it deals with fundamental constitutional rights in this country. At the same time, it deals with our right to protect ourselves against foreign interests that might intrude upon our shores. The chairman has said so well, it is a very precarious balancing act between the right of the free citizen and a civil society that is protected by law. That is what we as Senators are about at this moment. That is what I have always been about, along with my colleagues. That is why some of us joined well over a year and a half ago to say that when it came time to reauthorize the PATRIOT Act, here were some provisions that stepped us back toward the right of free citizens to be protected by their Government, in fact, against their Government's law enforcement capability; while at the same time not hand-tying the ability of law enforcement and intelligence to come together to review, to investigate, and to determine whether someone's acts were terrorist in nature and might put free citizens of our country in jeopardy. I cannot, nor will I, vote for cloture today because I am here to defend what the Senate has already done so well in such a bipartisan and in such a thoughtful way. We will not adjourn this session of this Congress without a PATRIOT Act in place, whether it is the 3-month extension we offered or whether it is the chairman, as he said, and the ranking member sitting down with the House to once again shape, in limited ways, those areas we think are critically necessary to make sure the balance the chairman so clearly spoke to is adhered to within a reauthorized PATRIOT Act. So I would urge my colleagues' calmness and sensitivity to the fundamental civil liberties of our country, as we worked so hard to balance them against our country's and our Constitution's and our Government's primary responsibility; and that is to keep us safe and secure in a free environment. I thank the ranking member for yielding, and I yield the floor.

Mr. CRAIG

Mr. CRAIG. Mr. President, I rise in support of this bill to expand the Radiation Exposure Compensation Act, RECA, to include the States of Idaho and Montana. I am an original cosponsor of the legislation being introduced by Senator Crapo. The National Academy of Sciences, NAS, recognizes that citizens affected by fallout from atomic bomb testing in Nevada were not only the citizens of that State or Utah, but also citizens to the north, and east, and throughout much of the world. This bill, consistent studies showing that parts of Idaho and Montana were among the most affected, expands RECA geographically to include these two States. My colleagues and I are in the business of making Idahoans eligible for RECA compensation as expeditiously as possible. Studies that take years will simply not do for citizens who would otherwise be eligible if they lived on the other side of a State line. The NAS recommended that RECA should be overhauled, and I will make sure this happens. In the meantime, those Idahoans and Montanans who qualify for compensation today should be made eligible immediately.

Mr. CRAIG

Mr. CRAIG. I thank my colleague from Vermont for yielding. I am glad I have been able to follow my colleague, my friend and associate from Arizona, and to say to him: Senator, you are wrong. You are just flat wrong--that this Senate or this Congress is going to allow the PATRIOT Act to expire. I find it fascinating, if not almost humorous, that I am on the floor defending the position of Jon Kyl and my chairman, Arlen Specter, who brought a bill to the floor which brought unanimity to the Senate; that they accepted, that the House rejected, in part; and that they are now saying we should not revisit it again. It is a phenomenally unique responsibility. Folks, when we are dealing with civil liberties, you don't compromise them, and you don't let the bad guys win. The Senate of the United States and the Congress and this President will not let the bad guys win. But we are sure not going to compromise civil liberties. How do you do it? The check and balance that has always been within the law is what we strive for today. When I began to become involved in the PATRIOT Act, looking at its reauthorization, I knew it would be an uphill battle. I knew it would be an uphill battle because Americans have grown to be frightened. But now they have grown to be emboldened when they recognized that some of their freedoms were and are at risk. I began to work, as did some of my colleagues. And out of that, knowing it must be reauthorized, we produced a piece of legislation. I must say Chairman Specter took us seriously. I am pleased he did. The Judiciary Committee took us seriously. I am glad they did. Out of that commitment came a work product of which all of us were very proud. And it passed the Senate unanimously. I think those charges are simply untrue, that somehow we wanted to destroy the act or that we wanted it to expire and go away. I know the rest of the country doesn't believe us anymore in that sense because they now understand the importance of the balance we are striving to create. I also find it very unique that we are talking about and focusing on a very small part of the PATRIOT Act itself. It is not sweeping change we are proposing. It is not sweeping change we hope to achieve by opposing cloture and asking the House to reconsider the work we have done. Is it an impossible task and is it a leap too far? Not at all. Look at the House vote yesterday. Two hundred and twenty four voted for the conference report we are now considering. That isn't the important vote, fellow Senators. The important vote was the 202 who agreed that we ought to agree with the Senate on what they had accomplished. That is simply 13 short of a majority in the House. Rarely--and we know that, those of us who have been around a while--do you ever get the House to agree with the Senate as much as the House agrees with the Senate on this issue. I am very confident, if the Senate revision of the PATRIOT Act and the reauthorization provision we provided, which passed the Senate unanimously, had been on the floor of the House yesterday and that had been the document being voted on, the vote would not have been 224; it would have been 240 or 250 or possibly 300. It is very possible that they would have been able to achieve that kind of broader support. Why? For all of my colleagues who have joined the debate today, and this is why I think the issues we are talking about are so important. If we had wanted to kill the PATRIOT Act, we would not have gone as far as we have to work with the chairman and the ranking member of the Judiciary Committee to fine-tune it and to make sure those safeguards are in place. Americans clearly understand we are at war. That does not need to be restated on the floor of this Senate. Blood has been spilled on our soil, and we know that. We recognize the very important task at hand, and the authority we have given our security organizations and our intelligence and law enforcement organizations in this area. But it is incumbent upon me, and it is incumbent upon all of us, to make sure that we don't gray or in some way make it easier for free citizens to have their rights violated, either by accident or if by a rogue investigator who found he or she could use the privilege granted here to somehow leverage a situation of a free citizen. And that is not what we are about. There is so much to be said here, and my time is very limited. I ask unanimous consent that the ``Dear Colleague'' letter that many of us sent out yesterday to our colleagues that breaks down part by part what we have done be printed in the Record.

Mr. CRAIG. Mr. President, let me, for a moment, touch on something I think is important. This issue has spread beyond these walls and beyond this building. The Idaho Legislature, my legislature in Idaho, by a resolution, a house joint memorial and a senate joint memorial to the Congress, asked that we support the SAFE Act. The SAFE Act was the passage of amendments that the Senate Judiciary Committee incorporated within our version of the reauthorization of the PATRIOT Act that passed this body unanimously. From the beginning, those of us who have concerns about PATRIOT have had an uphill battle. Practically before the ink was dry on our bill-- and certainly well before any committee had reviewed it--we faced a veto recommendation. Before they even read our reform proposals, some of PATRIOT's defenders charged us with wanting to repeal the law and do away with all the tools it provided law enforcement to protect our country against terrorism. Those charges were not true when we began, and they're not true today. We are not trying to undo PATRIOT. If some Senators still believe that, well, the rest of the country does not. Most of PATRIOT isn't even at issue today--just a small part of the law is up for renewal. Of that small part, we are only focusing on a few controversial and very important provisions. And even for those few provisions in the small part of the law up for renewal, we are asking for modest checks and balances, not repeal. And we have even been flexible about what shape those reforms should take. We introduced the SAFE Act, offering one way to ``fix'' what we saw as problems, but in the end, we accepted a Senate Judiciary Committee bill that took a couple of different approaches. Here is an interesting reaction: When we are dealing with constitutional freedoms, just a little can make all the difference. Some are saying that we are asking for so little, we should just drop it altogether. Our point is that it would take very little to close the gap and provide the assurances we are seeking. Our ask is very do-able. The conference on this bill was squeezed into the very end of the year; changes were being made in the conference agreement even up to the day of its filing. We believe a limited timeframe would allow further discussion and an opportunity to get beyond whatever political issues are in the way. Some of us have even introduced legislation that would extend the expiring provisions of PATRIOT for 3 months, for this purpose. Furthermore, it's worth emphasizing that our concerns are not about insignificant or technical issues--they relate to what happens when innocent Americans come within the sphere of surveillance in antiterrorism investigations. Regardless of what Americans think about the PATRIOT Act's effectiveness, they also care about preserving their freedom within the fight against terrorism. Let me read the resolution passed by the Idaho State Legislature earlier this year on the subject: A Joint Memorial to the Senate and House of Representatives of the United States in Congress Assembled, and to the Congressional Delegation Representing the State of Idaho in the Congress of the United States We, your Memorialists, the House of Representatives and the Senate of the State of Idaho assembled in the First Regular Session of the Fifty-eighth Idaho Legislature, do hereby respectfully represent that: Whereas, citizens of the state of Idaho strongly believe that basic civil liberties must be preserved and protected, even as we seek to guard against terrorist and other threats to the national security; and Whereas, there are some principles of our democracy which are so fundamental to the rights of citizenship that they must be preserved to guard the very liberties we seek to protect; and Whereas, legislation known as the SAFE Act has been introduced in the Congress of the United States to adopt amendments to the Patriot Act which would address some of the most problematic provisions of the Act; and Whereas, the SAFE Act amends the Patriot Act to modify the provision regarding the roving wiretaps to require that the identity of the target be given and that the suspect be present during the time when surveillance is conducted; and Whereas, the SAFE Act revises provisions governing search warrants to limit the circumstances when the delay of notice may be exercised and to require reports to the Congress when delays of notice are used; and Whereas, the SAFE Act requires specific and articulable facts be given before business records are subject to investigation by the Federal Bureau of Investigation; and Whereas, the SAFE Act provides that libraries shall not be treated as communication providers subject to providing information and transaction record of the library patrons; and Whereas, it is appropriate that the Legislature of the State of Idaho, on behalf of the citizens of Idaho, express support of the efforts of Senator Larry Craig to adopt the SAFE Act, and encourage the full support of the Idaho congressional delegation. Now, therefore, be it Resolved by the members of the first Regular Session of the Fifty-eighth Idaho Legislature, the House of Representatives and the Senate concurring therein. That the Idaho Legislature endorses the efforts to amend the Patriot Act to assure that it works well to protect our security but that it does not unnecessarily compromise essential liberties of the citizens of the United States. We urge the congressional delegation representing the State of Idaho in the Congress of the United States to support legislation introduced by Senator Larry Craig, known as the SAFE Act. This is just one of hundreds of such statements issued by states, cities, and communities across the Nation on this subject. I have actually heard colleagues saying that because there have been no publicly reported abuses of PATRIOT Act powers, there is no justification for changing the law. Since when do we have to wait for the Constitution to be breached to take action? Since when do the American people have to justify demanding checks and balances that will make sure there can be no such abuses? Since when did it become the American people's burden of proof to support protecting their civil liberties? I thought the government worked for the people, and not the other way around We are not the ones who should have to be justifying a call for checks and balances. It's up to the government to prove those checks and balances are not workable and not in the best interests of the Nation. Now, we have heard a lot about the civil liberties protections that have been included in this conference report. I stand second to none in giving credit to our Judiciary Committee chairman, Arlen Specter, for achieving these reforms. I well know the opposition he was up against, and I am very pleased he was able to persuade conferees--as he persuaded some in this body--that we can have both: protection of the privacy and civil liberties of innocent citizens, and aggressive fighting against terrorism. It is worth noting that even those of our colleagues who opposed our original SAFE Act proposals ended up supporting the Senate bill that contained civil liberties reforms. Today these same colleagues are praising the conference report's provisions along those lines--and my message to them is: why not go just a little further toward the Senate's version in some of these areas? You voted for them once before--why not again? That's how much confidence I have in Chairman Specter--that with this additional expression of support from the Senate, he will be able to make a few last--but important--improvements. The other body voted yesterday on the PATRIOT Act conference report, and a motion to reject that report and instead accept the entire Senate-passed version was narrowly defeated, 202-224. This is a remarkable vote. The U.S. House is a body of 435 Members. 215 is the majority, they were 13 short of passing the Senate bill, the very reform I am asking for today. But those of us seeking more time for negotiations aren't asking that the entire conference report be defeated; we aren't asking for the House to swallow the entire Senate bill. Instead, we have identified a few areas where we believe improvements could and should be made, and I think the House vote shows these changes would be welcomed by a substantial number in that body. To those of my colleagues who are telling us to ``quit while we're ahead,'' I say: where would we be if they had stopped at the First Amendment of the bill of Rights? Should they have quit while they were ahead, and forgotten about those other nine amendments? These are important issues. let's allow a little more time for the process to work, and respond to the concerns that our citizens have expressed. 1. The changes we are seeking: The conference report that we are voting on would allow the government to obtain library, medical and gun records and other sensitive personal information under Section 215 of the PATRIOT Act on a mere showing that those records are relevant to an authorized intelligence investigation. As business groups like the U.S. Chamber of Commerce have argued, this would allow government fishing expeditions targeting innocent Americans. We believe the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy, as the three-part standard in the Senate bill would mandate. Some conferees argue that the language in the conference report would permit the government to use the ``relevance'' standard only in limited, extraordinary circumstances, and that the Senate bill's three- part standard would continue to apply in most circumstances. To the contrary, the conference report never requires the government to demonstrate that the individual whose records are sought is connected to a terrorist or spy; rather, it permits the ``relevance'' standard to be used in every case. It has also been asserted that the government should not be required to abide by the three-part Senate standard because the Department of Justice demonstrated in a classified setting that ``circumstances may exist in which an individual may not be known to a foreign power or be a recognized terrorist but may nevertheless be crucial to an authorized terrorism investigation.'' We are convinced, however, that the three- part standard provides the necessary flexibility in such circumstances. Indeed, the government need only show that the records they seek are relevant to the activities of a suspected terrorist or spy, a very low burden to meet, but one that will protect innocent Americans from unnecessary surveillance and ensure that government scrutiny is based on individualized suspicion, a fundamental principle of our legal system. Unlike the Senate bill, the conference report does not permit the recipient of a Section 215 order to challenge its automatic, permanent gag order. Courts have held that similar restrictions violate the First Amendment. While some have asserted that the FISA court's review of a government application for a Section 215 order is equivalent to judicial review of the accompanying gag order, the FISA court is not permitted to make an individualized decision about whether to impose a gag order when it issues a Section 215 order. It is required by statute to include a gag order in every Section 215 order; the gag order is automatic and permanent in every case. The recipient of a Section 215 order is entitled, but does not receive, meaningful judicial review of the gag order. The conference report does not sunset the National Security Letter, NSL, authority. In light of recent revelations about possible abuses of NSLs, which were reported after the Senate passed its reauthorization bill, the NSL provision should sunset in no more than four years so that Congress will have an opportunity to review the use of this power. The conference report does not permit meaningful judicial review of an NSL's gag order. It requires the court to accept as conclusive the government's assertion that a gag order should not be lifted, unless the court determines the government is acting in bad faith. As a result, the judicial review provisions do not create a meaningful right to review that comports with due process. The conference report does not retain the Senate protections for ``sneak and peek'' search warrants, as Chairman Specter's letter suggests. The conference report requires the government to notify the target of a ``sneak and peek'' search within 30 days after the search, rather than within 7 days, as the Senate bill provides and as pre- PATRIOT Act judicial decisions required. That 7-day period was the key safeguard included in the Senate sneak and peek provision. The conference report should include a presumption that notice will be provided within a significantly shorter period in order to better protect Fourth Amendment rights. The availability of additional 90-day extensions means that a shorter initial time frame will ensure timely judicial oversight of this highly intrusive technique but not create undue hardship on the government. Unlike the Senate bill, the conference report requires a person who receives an NSL to notify the FBI if he consults with an attorney and to identify the attorney to the FBI. This will have a significant chilling effect on the right to counsel. There is no such requirement in any other area of law. Unlike the Senate bill, the conference report for the first time imposes criminal penalties on an NSL recipient who speaks out in violation of an NSL gag order, even if the NSL recipient believes his rights have been violated. The conference report for the first time gives the government the power to go to court to enforce an NSL, effectively converting an NSL into an administrative subpoena. An NSL recipient could now potentially be held in contempt of court and subjected to serious criminal penalties. The government has not demonstrated a need for NSLs to be court enforceable and has not given any examples of individuals failing to comply with NSLs. The conference report would give the government unilateral authority to keep all its evidence secret from a recipient who is challenging an NSL, regardless of whether the evidence is classified. This will make it very difficult for an NSL recipient to obtain meaningful judicial review that comports with due process. As with Section 215, the conference report fails to require notice to the target of an NSL if the government seeks to use the records obtained from the NSL in a subsequent proceeding, and fails to give the target an opportunity to challenge the use of those records. The conference report does not eliminate the catch-all provision that allows sneak and peek searches any time that notice to a subject would ``seriously jeopardize'' an investigation. This exception could arguably apply in almost every case. Many of my colleagues say the PATRIOT Act is just giving law enforcement powers in terrorism investigation what they already have in drug investigation. Well not here. The conference report does not include meaningful checks on ``John Doe'' roving wiretaps, a sweeping power never authorized in any context by Congress before the PATRIOT Act. A John Doe roving wiretap does not identify the person or the phone to be wiretapped. Unlike the Senate bill, the conference report does not require that a roving wiretap include sufficient information to describe the specific person to be wiretapped with particularity. The conference report does not require the government to determine whether the target of a roving intelligence wiretap is present before beginning surveillance. An ascertainment requirement, as has long applied to roving criminal wiretaps, is needed to protect innocent Americans from unnecessary surveillance, especially when a public phone or computer is wiretapped. Yes, new technology is challenging but should not allow our privacy rights to be swept away. The conference report retains the PATRIOT Act's expansion of the pen/ trap authority to electronic communications, including e-mail and Internet. In light of the vast amount of sensitive electronic information that the government can now access with pen/traps, modest safeguards should be added to the pen/trap power to protect innocent Americans, but the conference report does not do so. The conference report retains the PATRIOT Act's overbroad definition of domestic terrorism, which could include acts of civil disobedience by political organizations. While civil disobedience is and should be illegal, it is not necessarily terrorism. This could have a significant chilling effect on legitimate political activity that is protected by the First Amendment. While the issues discussed above are the core concerns about the conference report that the original cosponsors of the SAFE Act asked to be modified, they are not the only problems that we see with the conference report. There are a number of other areas where we believe the conference report falls short. Unlike the Senate bill, the conference report requires a person who receives a Section 215 order to notify the FBI if he consults with an attorney and to identify the attorney to the FBI. This will have a significant chilling effect on the right to counsel. There is no such requirement in any other area of law. The conference report would give the government unilateral authority to keep all its evidence secret from a recipient who is challenging a 215 order, regardless of whether the evidence is classified. This will make it very difficult for the recipient of a Section 215 order to obtain meaningful judicial review that comports with due process. Under the conference report, the target of a Section 215 order never receives notice that the government has obtained his sensitive personal information and never has an opportunity to challenge the use of this information in a trial or other proceeding. All other FISA authorities--wiretaps, physical searches, pen registers, and trap and trace devices--require such notice and opportunity to challenge. The conference report would allow the government to issue NSLs for certain types of sensitive personal information simply by certifying that the information is sought for a terrorism or espionage investigation. This would allow government fishing expeditions targeting innocent Americans. As business groups have argued, the government should be required to certify that the person whose records are sought has some connection to a suspected terrorist or spy. Again, what is important is to understand and plead with our colleagues--that how you negotiate is through power and leverage, not to give up and walk away. I am not going to suggest that the chairman did that at all. He and I dialogued many times over the course of the last 2 weeks as to what we might do to gain greater position, to gain the Senate position with the House. My compliments to him for the successes that are in the conference report because there are some. But my frustration is that what we did in the Senate in this very important instance has not been adhered to. Those safeguards have not been put in place to the extent that we had asked. And I believe it is reasonable and right to say: No, let us live for 3 more months with the current law while we attempt to achieve even greater protection for the private citizens of this country but most importantly recognize that the law enforcement community needs that time to ask permission and to show that they have very real reason to believe that somebody is involved. I think it has been a very excellent debate which has gone on on the floor of the Senate. But there is a reality check. That reality check is a vote on the conference report, and I ask my colleagues to vote against cloture so that we can reenter this debate one more time with the House to make sure we get it right so that the first amendment and the fourth amendment are not, in some way, in jeopardy. I yield the floor.

Mr. CRAIG. I know my chairman thinks that is a success. First, we have broken and entered a private citizen's home without telling them. Does it take 30 days for law enforcement to determine that what they have found is so valuable that they cannot tell the citizen they have broken into their home? Why not 7 days? And then go to a judge and prove your worth with the evidence you have established by that ``break-in''--because that is what you have done. My home is my sanctuary. We have said, yes, we are going to let you break and enter, sneak and peek, but we are going to make sure it is very limited. So I don't view 30 days as a compromise. Seven days. You were right to begin with. You are wrong now.

Mr. CRAIG. If the Senator will yield, I will be kinder.

Mr. CRAIG. All right.

Mr. CRAIG. It is broadening of the application, not the establishment.

Mr. CRAIG. It was third on my list.

Mr. CRAIG

Mr. CRAIG. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. CRAIG

Mr. CRAIG. Mr. President, may I inquire as to the state of the Senate? Are we in morning business?

Mr. CRAIG. I thank the Chair. I will speak as in morning business.