Mike Crapo

Mr. CRAPO

Mr. CRAPO. You have.

Mr. CRAPO. Will the Senator entertain one more question before he moves on? I do appreciate him allowing me to engage in this discussion with him. Again, I am trying to make it clear so we understand just exactly what it is that is being said Miguel Estrada has not disclosed. We talked about the documents in the Solicitor General's Office that he prepared as a career attorney. We talked about his failure to identify which was his favorite and least favorite Supreme Court case. And apparently--I was not at the hearing because I don't sit on the Judiciary Committee--he did not answer Senator Kennedy's questions about some current cases to the satisfaction of the Senators. Is there anything else that is holding him back? Again, the reason I am getting at this is because we are facing a remarkably unique circumstance here, the filibuster of a circuit court nomination on the basis of nondisclosure. I want to get out exactly what that nondisclosure is so we and the American public can understand that. Then we can deal with it on a very focused basis, on a point-by-point basis and, where there is merit on either side, deal with it. But the general charges, it seems to me, of nondisclosure and not answering questions to the satisfaction of a Senator usually result in a Senator saying I don't like the way the answers were given so I am going to vote no on the nomination. Instead, at this point we are facing a filibuster, which I believe is a serious threat to the manner and the protocol with which the Senate has approached Presidential nominations to the judiciary and is much broader than just the nomination of this individual judge. So we have two issues which to me are much broader than this specific nomination. The first is whether we should have the Senate start inquiries into confidential Solicitor General documents, and the second is whether the Senate should be stopped from voting on a Presidential nomination by a filibuster when we are dealing with nominations to the judiciary. That will change the way this Senate has operated historically.

Mr. CRAPO. Will the Senator yield?

Mr. CRAPO. Not having sat in the hearing, I don't know how much it would trouble me. I can't tell you if a witness would not answer my questions I wouldn't be troubled by it. I don't think that would cause me to try to filibuster the nomination, which is really one of the core issues we are dealing with here. I might vote no because of it. And you are perfectly entitled to vote no if you don't like the answers to your questions. But we are way beyond not liking the answers to questions here. We are seeing a filibuster of a nomination to the Circuit Court of Appeals for the District of Columbia. It is based, as I understand it, in large part on the fact that confidential documents are not disclosed. What I am trying to get at is: What else? What I have heard at this point is the nominee did not identify which was his favorite and least favorite Supreme Court case, and that he would not say how he would have judged a particular case until he had read the briefs and studied the matter more carefully. Frankly, I think that makes him a better candidate.

Mr. CRAPO. I will respond and ask a question, how is that?

Mr. CRAPO. It is not just the White House. As I indicated, this is every living former Solicitor General in the United States who is saying this issue goes far beyond the Miguel Estrada nomination. It goes to the core of what the Senate should be dealing with in terms of its investigation of judicial nominees and what they can do to our judicial system and to the Justice Department in that context. But you indicated also in your answer that Miguel Estrada did not answer the questions asked of him by the Judiciary Committee. I wish to clarify this because I understand he would not reveal the documents that we are discussing. Were there any other questions which you asked him or which you are aware of that he has not answered?

Mr. CRAPO. Miguel Estrada believes his papers will show support for him. But the principle here is the principle--

Mr. CRAPO. I understand your position now, which is that you are asking for the disclosure of this broad array of confidential documents. I assume you are aware that every living former Solicitor General has rejected this request. This letter was signed by Democrats Seth Waxman, Walter Dellinger, and by Republicans, Ken Starr, Charles Fried, Robert Bork, and Archibald Cox for the very reasons we have been talking about. I want to get at this principle. Is it the correct policy, is it the right thing for us to do in the Senate, to change the practice? I understand you can list a few cases where there were exceptions in the history of handling judicial nominations in this country, but if you look at the thousands, indeed tens of thousands of judicial nominations, the policy and practice of the Senate has been not to delve into the confidential documents for the very reason every former living Solicitor General has said it would compromise the ability of its office to do its work effectively. Do you believe it is the right policy for the Senate to begin putting some standard on those who would become nominees of any President, Republican or Democrat, to a position in the U.S. Judiciary? Should we open this door and start demanding that the Solicitor General's Office, the Justice Department, and other contacts, or in any other situation, start revealing these confidential internal work documents by career lawyers? (Mrs. DOLE assumed the Chair.)

Mr. CRAPO. Will the Senator yield?

Mr. CRAPO. If I understand correctly, you are saying, based on the letter, that you indeed are seeking the disclosure of these confidential internal work documents and you believe that letter shows the precedent for disclosure exists, is that correct?

Mr. CRAPO. Will the Senator yield further?

Mr. CRAPO. If I understand correctly, you are reading that the internal work documents of a career attorney of the Solicitor General's Office in making recommendations on how to handle cases would not be something this Senate should try to investigate or to cause to be disclosed? In each of the cases you have discussed, either it was specific charges of misconduct about which very narrow documents were disclosed or general comments on politics such as the case of Justice Bork. And if you are agreeing with that, perhaps there is some progress we can make. It is my understanding the demand for disclosure is far broader than what you have just described.

Mr. CRAPO. Will the Senator yield further?

Mr. CRAPO. I have been listening to the arguments the Senator has made. I have been listening very carefully to the examples the Senator is pointing out about other nominations in which documents were provided. It is my understanding, however, that the Department of Justice has never disclosed confidential deliberative documents on career lawyers in the Solicitor General's Office. These are documents dealing with recommendations on internal deliberations regarding appeals and certiorari or amicus recommendations in pending cases. From the information I am aware of that the White House has provided in each of the cases that the Senator has listed, there is a very clear difference in each of those cases. Take the situation of Judge Bork to which the Senator was referring. The materials involving Judge Bork were very carefully limited to those that focused on his observations on political questions, such as President Nixon's assertion of the executive privilege or the pocket veto. Never has the Department of Justice allowed access to internal career lawyers' working documents on appeals or on certiorari or amicus recommendations, and that is what I understand the Senator to be requesting. First, does the Senator understand the distinction that is made between these document explanations that have been made? And does the Senator believe the Senate should start the precedent, which has never been done in this Senate, of asking for access to these career lawyers' deliberations on confidential matters in the Solicitor's Office?

Mr. CRAPO. Will the Senator yield for and respond to a question?

Mr. CRAPO

Mr. CRAPO. Mr. President, we rise today to ask the Senate to join us in recognizing the accomplishments of the 2002 Football Program at Boise State University (BSU), in our home State of Idaho. Senator Larry Craig, Congressman Mike Simpson, Congressman C.L. ``Butch'' Otter, and I wish to honor the players, Head Coach Dan Hawkins, his entire staff, the administrators of BSU, the Bronco Athletic Association, and the thousands of BSU fans for the outstanding season. The Broncos of BSU have excelled in both academics and sportsmanship. The team is a source of pride for the university, the city of Boise, and the entire State of Idaho. The Broncos began the season with optimism and commitment; their hard work was rewarded by the following accomplishments: 2002 Western Athletic Conference (WAC) Champions; 8 wins and no losses in the WAC; an overall record of 12 wins and only 1 loss; the highest overall margin of victory in the history of the WAC of 37.2 points per game; Humanitarian Bowl Champions with a 34 to 16 win over Iowa State University; #1 team in the Nation in team scoring; #1 team in the Nation in total offense; #1 team in the Nation in passing efficiency; #17 team in the Nation in scoring defense; ranked #15 in the Nation in the AP Poll; ranked #12 in the Nation in the ESPN/USA Today Coaches Poll, and Second longest current winning streak in the country, second only to National Champion Ohio State University. Through service, the BSU Broncos have taken the energy they generate on the field and spread it throughout the Boise community. Mentoring children, hosting youth football camps, and visiting the Ronald McDonald House are just a few examples of how the BSU Football Program benefits Idaho. We recognize the extraordinary progress and development of the BSU football program and look to its success as an example of what can be accomplished with leadership, commitment, determination, and, most importantly, teamwork. We congratulate the football program of Boise State University for the achievements made and look forward to future success and a strong defense of its conference title.

Mr. CRAPO

Mr. CRAPO. Mr. President, I rise today to ask the Senate to join me in honoring the retirement of Col. Edwin D. Strickfaden, director of the Idaho State Police. Colonel Strickfaden retired on December 31, 2002, after faithfully serving the citizens of Idaho for 35 years. I join with many Idahoans in recognizing Colonel Strickfaden's career as a sterling example of dedication to public safety and service to others. Enormous is the debt owed by us to the men and women who work in law enforcement, who, every day put their lives on the line to defend the rights and liberties we enjoy. Colonel Strickfaden exemplifies the sacrifices made by these exceptional people. He is deserving of our respect and honor as he concludes his distinguished career. Edwin D. Strickfaden's career with the Idaho State Police began in 1967 at the conclusion of 4 years of service to his country in the U.S. Air Force. He started with the Idaho State Police serving at the King Hill Port-of-Entry facility in King Hill, ID. He was made officer-in- charge of the facility in 1969. A year later, he was again promoted and assigned to the District Two office in Lewiston. In all, Colonel Strickfaden served in six offices of the Idaho State Police throughout Idaho, in three of them as commander. The year's many changes and transfers afforded him vast experience in all aspects of Idaho law enforcement and many opportunities to serve the people of Idaho. One of many salient moments that defined Mr. Strickfaden's distinguished career is a time when he dove into the icy December waters of the Clearwater River to rescue a woman from a submerged vehicle, an action given special recognition by then-Governor Cecil Andrus. This action typified the courage and dedication he was known for throughout his 35-year career. The invaluable knowledge and experience that Colonel Strickfaden gained through many years of service became critical in 1998 when he was asked to serve as director of the Department of Law Enforcement. Under Colonel Strickfaden's leadership, the former Department of Law Enforcement and State Police were combined into a single agency. The new Idaho State Police has become an effective organization with numerous successes in the war on drugs and other enforcement issues in Idaho. True to this mission, Idaho has experienced a decline in illegal drug use since Colonel Strickfaden served as director of the Idaho State Police. Without the effective work of the Idaho State Police, our ability to live in a safe and secure environment would be compromised. Colonel Strickfaden's tireless efforts have helped reach the goal of making Idaho a safe and secure environment for all of its residents. As he enters a new phase of his life, I know my Senate colleagues will join me in thanking Colonel Strickfaden on his distinguished career as an Idaho State Police Officer and wish him every success in his future endeavors.

Mr. CRAPO

Mr. CRAPO. Mr. President, I appreciate the opportunity to join with my colleague from Idaho, Senator Craig, and with the other Senators he has listed who are cosponsoring this critical legislation. Senator Craig has already laid out this circumstance. Some time ago, when we could not reach an agreement with Canada on this critical issue through trade negotiations, WTO and other trade sanctions were sought by American companies seeking to correct the problem that has been faced by subsidized timber flooding into the United States from Canada. As a result of that effort, the U.S. Department of Commerce found the Canadian provinces subsidize their industry by providing lumber mills timber at prices that are 33 to 50 percent below market value. As Senator Craig has indicated, as a result of that, a countervailing duty was applied and the Canadian timber producers, who are trying to bring their timber into the United States, are now required to pay this countervailing duty as a cost for their subsidized timber. The response of the Canadian Government to that has not been simply to comply and try to negotiate a new, workable softwood lumber agreement. Instead, the Canadian Government has continued to increase the available subsidies and to try to flood the United States markets with this timber. The outcome has been that from August 2000 to March 2001, the United States lumber manufacturers closed 27 mills permanently while only two Canadian mills were closed during that time. The reason, of course, was this continued support provided from the Canadian Government. How was it provided? As has already been indicated, allegedly bug kill timber. But timber wood that has not faced the impact yet was provided for prices which were as low as $1 per 1,000 board feet when the market price for that timber would have been somewhere in the neighborhood of $100 per 1,000 board feet. This significantly subsidized timber has been brought into the United States, exacerbating the problem. Second, as Senator Craig already indicated, the British Columbian government has already revised their forest practice code to reduce the cost of lumber manufacturers under their code, saving them millions of dollars annually. What we see is, in response to this anticompetitive situation of unfair trade practices that have been identified and which are now being dealt with in litigation, the Canadians have increased their subsidies and are continuing to flood timber into the United States markets. A number of changes need to occur. But one of them needs to occur in U.S. law because as a part of the entire process, it is important to determine the amount of subsidy. The subsidy is determined by evaluating whether the price that is being charged to the Canadian producers is above or below their cost of production. One of the critical elements is determining that value. Currently, we have found Canadian companies are selling their lumber into the United States at below their subsidized cost of production, requiring antidumping duty of 8.79 percent. The point I make is that their current subsidies are even below and make it so that they are able to provide their timber to U.S. markets below subsidized cost of production. The legislation we are introducing today will require them to include the countervailing duty which they pay as a part of their cost of production in determining what their true subsidy is. As long as the United States does not require the Canadians to include their countervailing duties as a cost of their production, then the amount of the subsidy which we determine will be even less than it truly is. It will not be accurately reflected. This is a simple change to clarify what is already on the books in the United States. This practice is pursued in Europe and in Canada already under their approach to these issues. It is only proper that the U.S. Government stand firmly behind this principle. Again, the principle is, when a nation is subsidizing its products and shipping them into U.S. markets to the detriment of our producers, that subsidy must be included as a cost of doing business when we calculate in our litigation with them the amount of subsidy and the resultant countervailing duties we can apply. I don't believe there is a legitimate argument against this legislation. I realize nations across the world are trying to figure out how to continue to do the best they can for their producers to help them get their products into our markets. However, we have now very aggressive negotiations underway in bilateral trade arrangements as well as in multilateral trade arrangements such as the world trade negotiations seeking to bring down the level of subsidies across the world to a level of zero. That is our objective in our international trade negotiations. We cannot tolerate the continued defiance of these types of laws in our negotiations. That is the simple purpose behind this legislation. The United States and the Department of Commerce and our United States trade negotiators in particular have been doing a tremendous job in helping deal with a very difficult situation resulting from the Canadian unfair trade practices in softwood lumber. They are to be commended for this. One of the things we need to provide to them as a tool in this ongoing process is a congressional and, indeed, American statutory declaration that countervailing duties must be included in the cost of production as we negotiate on these critical issues with our neighbors to the north. I thank the Senate for this time. I thank my colleague Senator Craig for his leadership on this issue and the other Senators supporting this effort.

Mr. CRAPO

Mr. CRAPO. Mr. President, I appreciate the opportunity to join with my colleague from Idaho, Senator Craig, and with the other Senators he has listed who are cosponsoring this critical legislation. Senator Craig has already laid out this circumstance. Some time ago, when we could not reach an agreement with Canada on this critical issue through trade negotiations, WTO and other trade sanctions were sought by American companies seeking to correct the problem that has been faced by subsidized timber flooding into the United States from Canada. As a result of that effort, the U.S. Department of Commerce found the Canadian provinces subsidize their industry by providing lumber mills timber at prices that are 33 to 50 percent below market value. As Senator Craig has indicated, as a result of that, a countervailing duty was applied and the Canadian timber producers, who are trying to bring their timber into the United States, are now required to pay this countervailing duty as a cost for their subsidized timber. The response of the Canadian Government to that has not been simply to comply and try to negotiate a new, workable softwood lumber agreement. Instead, the Canadian Government has continued to increase the available subsidies and to try to flood the United States markets with this timber. The outcome has been that from August 2000 to March 2001, the United States lumber manufacturers closed 27 mills permanently while only two Canadian mills were closed during that time. The reason, of course, was this continued support provided from the Canadian Government. How was it provided? As has already been indicated, allegedly bug kill timber. But timber wood that has not faced the impact yet was provided for prices which were as low as $1 per 1,000 board feet when the market price for that timber would have been somewhere in the neighborhood of $100 per 1,000 board feet. This significantly subsidized timber has been brought into the United States, exacerbating the problem. Second, as Senator Craig already indicated, the British Columbian government has already revised their forest practice code to reduce the cost of lumber manufacturers under their code, saving them millions of dollars annually. What we see is, in response to this anticompetitive situation of unfair trade practices that have been identified and which are now being dealt with in litigation, the Canadians have increased their subsidies and are continuing to flood timber into the United States markets. A number of changes need to occur. But one of them needs to occur in U.S. law because as a part of the entire process, it is important to determine the amount of subsidy. The subsidy is determined by evaluating whether the price that is being charged to the Canadian producers is above or below their cost of production. One of the critical elements is determining that value. Currently, we have found Canadian companies are selling their lumber into the United States at below their subsidized cost of production, requiring antidumping duty of 8.79 percent. The point I make is that their current subsidies are even below and make it so that they are able to provide their timber to U.S. markets below subsidized cost of production. The legislation we are introducing today will require them to include the countervailing duty which they pay as a part of their cost of production in determining what their true subsidy is. As long as the United States does not require the Canadians to include their countervailing duties as a cost of their production, then the amount of the subsidy which we determine will be even less than it truly is. It will not be accurately reflected. This is a simple change to clarify what is already on the books in the United States. This practice is pursued in Europe and in Canada already under their approach to these issues. It is only proper that the U.S. Government stand firmly behind this principle. Again, the principle is, when a nation is subsidizing its products and shipping them into U.S. markets to the detriment of our producers, that subsidy must be included as a cost of doing business when we calculate in our litigation with them the amount of subsidy and the resultant countervailing duties we can apply. I don't believe there is a legitimate argument against this legislation. I realize nations across the world are trying to figure out how to continue to do the best they can for their producers to help them get their products into our markets. However, we have now very aggressive negotiations underway in bilateral trade arrangements as well as in multilateral trade arrangements such as the world trade negotiations seeking to bring down the level of subsidies across the world to a level of zero. That is our objective in our international trade negotiations. We cannot tolerate the continued defiance of these types of laws in our negotiations. That is the simple purpose behind this legislation. The United States and the Department of Commerce and our United States trade negotiators in particular have been doing a tremendous job in helping deal with a very difficult situation resulting from the Canadian unfair trade practices in softwood lumber. They are to be commended for this. One of the things we need to provide to them as a tool in this ongoing process is a congressional and, indeed, American statutory declaration that countervailing duties must be included in the cost of production as we negotiate on these critical issues with our neighbors to the north. I thank the Senate for this time. I thank my colleague Senator Craig for his leadership on this issue and the other Senators supporting this effort.

Mr. CRAPO

Mr. CRAPO. Mr. President, would the distinguished Chairman of the Subcommittee yield for a colloquy regarding Land and Water Conservation Funds for Idaho?

Mr. CRAPO. First allow me to commend the Chairman and Ranking Member of the Subcommittee for their leadership and hard work on this bill. The Committee has had to make difficult decisions with scarce resources and have worked hard to do so in a fair manner. I appreciate Chairman Burns and Ranking Member Byrd's effort and diligence. Idaho is a state of spectacular natural beauty and wildlife habitat. One jewel within the Gem State is the Sawtooth National Recreation Area, SNRA. The SNRA is a national treasure enjoyed by locals and visitors to Idaho alike. The opportunity to preserve important parts of its pristine beauty is available through the purchase of scenic easements. Further, when the SNRA was established nearly thirty years ago, a commitment was made to private property owners to secure easements. In the past, funding has been inadequate to complete the easement purchases. However, in recent years, with the support of the Chairman and Ranking Member, we have been a renewed interest in completing the purchase of relevant easements within the SNRA. Idaho is grateful for the committee's support in obtaining these easements. It is expected that $3 million in Fiscal Year 2003 will fulfill the easement needs in the SNRA. Unfortunately, funding for easements in the SNRA was not included in the committee-passed bill. I recognize the subcommittee is operating under significant financial restraints and not all worthy projects can be funded. Yet, it is my hope the Chairman and ranking member can revisit their important project in the conference. Again, I am grateful the committee has previously responded to the opportunities to use land and water conservation funds to acquire easements in the SNRA to protect the valuable habitats and scenic values. Support for easements in the SNRA are locally-driven, with wide-spread support and anxious willing-sellers. Completion of this project will address the concerns of private property owners and protect this wonderful resource for all Americans to enjoy. I would ask the Chairman and ranking member if they would work with me in conference to evaluate this request, with an eye toward inclusion in the conference report.

Mr. CRAPO. I thank the Chairman and Ranking Member.

Mr. CRAPO

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

Mr. CRAPO

Mr. CRAPO. The Senate is in morning business for another 23\1/2\ minutes.

Mr. CRAPO

Mr. CRAPO. Mr. President, I rise today to acknowledge the upcoming retirement of Ron King, Director of Communications at the Department of Energy's Idaho Operations Office. The DOE Idaho Operations Office oversees manangement of the Idaho National Engineering and Environmental Laboratory, INEEL, and for almost 10 years Ron has served, with distinction, as the director of communications. Ron's service to his country began with a career in United States Navy, which included various intelligence and administrative positions. After retiring from the U.S. Navy in 1979, Ron continued to work with the Navy as a Government and contractor employee. Ron's public service culminated with his service to the Department of Energy with posting in Montana and Idaho. As Director of Communications, Ron served as the interface between the DOE and various stakeholders such as State of Idaho officials, the Idaho congressional delegation, tribal governments, community groups, academic institutions and media outlets. In each of these groups, Ron is well-known and respected and the DOE has benefited from Ron's representation. Public service involves personal sacrifice, commitment to duty and hard work. Ron King exemplified these values during his service in the Idaho Operations Office. Ron will leave big shoes to be filled and his service will not be forgotten. I want to wish Ron and his wife Cindy all of the best as Ron leaves Government service.