John Ensign

Mr. ENSIGN

Mr. ENSIGN. Madam President, I think the Senator from Arizona wishes to make a statement.

Mr. ENSIGN. Madam President, to wrap up this debate, let me address, first of all, the whole idea that changing this treaty in any way kills the treaty. Under the Constitution, certainly it is the President's role, the administration's role, to negotiate the treaties. We all recognize that. But under the Constitution, the Senate is tasked with advice and consent. That means we are to look at the treaties, and if we think they should be changed--and we have changed treaties over the years--then we are free to change the treaties. That is why there is a process set up, such as this amendment process, to change the treaties. So if we have fundamental objections to the treaty, I think we can have a debate on whether we should, on a particular amendment, change the treaty on the merits of the amendment, but we shouldn't just say we can't change any part of a treaty because it kills the treaty, because we have a constitutional role in advice and consent on whether we approve treaties. Just a couple points to make. First of all, this is from the State Department's Bureau of Verification, Compliance, and Implementation. I ask unanimous consent that it be printed in the Record.

Mr. ENSIGN. Madam President, let me just read one paragraph from this: If Russia chose to develop and deploy rail-mobile ICBMs, such missiles and their launchers would be subject to the Treaty and its limitations. That is according to our State Department. Specific details about the application of verification provisions would be worked out in the Bilateral Consultative Commission. So, in other words, if Russia decides to build these things, then the verification has to be worked out by the Bilateral Consultative Commission. It isn't that it is set in there exactly what would happen, but the verification certainly would have to be worked out. The bottom line is, we believe there is ambiguity because of the statements made by the Russians themselves. That is the problem. If the Russians, in their statements in the Duma, if they have been saying: Yes, we agree with exactly the interpretation the Americans have been making, it would be a different story and we probably wouldn't need this amendment. But because their statements--Senator Kerry's counterpart in the Russian Duma has said the Americans are trying to bring into this New START treaty mobile launchers, and the Russians don't think they should be in there. So we think we should clarify that language in a very unambiguous way, based on my amendment, to make sure there is no question on each side. I appreciate what the Senator from Massachusetts is saying, that they have destroyed their--it would be crazy for them to build them again. But as the Senator from Arizona just talked about, they are at least designing. Maybe they have a better system to use for rail-mobile launchers. We don't know that. But what we do know is, they don't think this language applies, the language in the treaty applies to the mobile launchers. So they could get around this treaty and the number of warheads they could have, based on the language that is currently in the treaty. I just ask our colleagues to seriously consider removing the ambiguity and voting for the Ensign amendment. I yield the floor.

Mr. ENSIGN

Mr. ENSIGN. Madam President, I rise today to talk about this New START treaty. I have some very serious concerns about it. I appreciate the work that has been done by my colleagues. This is an incredibly serious issue. I do not question anybody's motives, but I do think there are some serious flaws that lie not only within the four corners of the treaty text but also speak to the manner in which this administration has dealt with Russia. This policy of Russian ``reset'' has meant that the United States is making major concessions, while our Russian counterparts give up virtually nothing. Further, I have serious reservations about the manner in which the Senate is considering this treaty. This body, the Senate, is supposed to be the most deliberative body in the world. It is supposed to be a chamber that respects the rights of the minority. Senators are supposed to be afforded the right of unlimited debate and the right to have their amendments considered. Rushing a treaty of this magnitude through a lameduck session is not what the Founders had in mind when they gave this body the power of advice and consent in these serious matters. The American people sent a clear message in November to concentrate on jobs, taxes, and the economy. While I do not think this lameduck is the time to debate this very important treaty, I do plan on offering multiple amendments to address this treaty's flaws, as well as the resolution of ratification. My colleagues on both sides of the aisle will also offer amendments with topics ranging from how this treaty restrains our missile defense capabilities to ceding the Senate's advice and consent power to the flawed Bilateral Consultative Commission. For example, there needs to be an amendment which addresses the verification regime in this treaty, or lack thereof. Further, it is astounding to me that tactical nuclear weapons were left out of the treaty, considering that Russia has approximately a 10-to-1 advantage. Additionally, we need to consider how the rail-mobile ICBMs are counted, or not counted, and our Russian policy in a much broader sense. As the Senate moves forward in examining the intended consequences of this treaty, we also need to pay careful attention to those consequences that are unintended because that is where the danger truly lies. In order to properly examine these, the administration needs to provide the Senate with the full negotiating record which it has yet to do. Only upon examination of this record can we accurately determine how Russia views this accord to ensure that their understanding is the same as ours. On the topic of missile defense, this is clearly a case of the administration wanting to have its cake and eat it too. There should be zero--zero--mention of missile defense within 100 miles of this treaty. Yet there it is, right in the preamble to New START, which clearly recognizes an interrelationship between offensive nuclear weapons and missile defense. I believe this is unacceptable. Further, if we examine article 5, paragraph 3, of New START, missile defense is again referenced, plain as day, in a provision prohibiting the United States from converting ICBMs or sea-based launchers for missile defense purposes. Where is the wisdom in removing such an option from our toolkit for the whole life of the treaty? Russia must understand that we will not limit our options for national defense based on current plans, ideas, or technology. Should a breakthrough occur in missile defense technology or launcher development we cannot have already ruled out pursuing new courses of action. In their attempts to persuade Republicans to support the treaty, proponents have attempted to invoke the name of Ronald Reagan. Let's remember that over two decades ago, President Reagan returned from Iceland and made the following statement: While both sides seek reduction in the number of nuclear missiles and warheads threatening the world, the Soviet Union insisted that we sign an agreement that would deny me and future presidents for 10 years the right to develop, test and deploy a defense against nuclear missiles for the people of the free world. This we could not and would not do. This clearly states, in his own words, where Ronald Reagan would be on this New START treaty. Another especially troublesome facet of the New START is that it would establish a Bilateral Consultative Commission with the authority to agree upon additional measures to increase the effectiveness of the treaty. This seems like a broad and vague purview for a commission, and it is unclear why the Senate would delegate its advice and consent responsibilities to a commission. This leads me to ask the question: Since missile defense has fallen under the purview of this treaty, wouldn't it be logical that this commission could make decisions as to what we can and cannot do with our missile defense assets? We must make it clear this commission, the BCC, cannot have the authority to further handicap our national defense as it could otherwise do under this treaty without further scrutiny of the Senate. I hope we agree as a body to insist that the workings of the BCC are completely visible and accessible to the Senate and that we explicitly make these changes to the treaty itself, not just the resolution of ratification. As we move forward in examining this treaty, a colleague of mine will be sorely missed. The senior Senator from Missouri, Kit Bond, as vice chairman of the Senate Select Committee on Intelligence is the foremost expert in the Senate and likely in all of Congress on matters of intelligence. At least that is my opinion. I wish to quote my good friend. The Select Committee on Intelligence has been looking at this issue closely over the past several months. As the vice chairman of this committee, I have reviewed the key intelligence on our ability to monitor this treaty and heard from our intelligence professionals. There is no doubt in my mind that the United States cannot reliably verify the treaty's 1,550 limit on deployed warheads. The administration claims that New START is indispensable to reap the ``Reset'' benefits with Russia. If a fatally flawed arms control agreement is the price of admission to the Reset game, our Nation is better off if we sit this one out. I could not agree more. It is naively optimistic to assume that a world with fewer nuclear weapons is the same thing as a safer world. Our security has long depended on a strong and flexible deterrent. New threats are constantly emerging from every corner of the globe. This has been recently demonstrated by Iran's resistance to denuclearization and North Korea's increasingly violent saber rattling. The United States must be able to rapidly adapt and respond to new threats to our security. Now is the time for more flexible deterrent capability, not less. New START is riddled with U.S. concessions from which I can see little gain. U.S. leadership in this arena will be measured by how well we protect our ability to defend ourselves and our friends, not by how quickly we agree to an imperfect treaty. I yield the floor.

Mr. ENSIGN. Let me check.

Mr. ENSIGN

Mr. ENSIGN. Madam President, I rise to talk about the tax bill that is before us. I was one of just a few on our side who happened to vote against a procedural motion last night, and I wish to talk about why I will be opposing the final passage of this bill. This threat that is facing our country today is greater than any external threat we have faced for some time. It is an internal threat that is stemming from our own government that threatens the very future of our country. In the words of ADM Michael Mullen, the Chairman of the Joint Chiefs of Staff--this is exactly what he said: The biggest threat we have to our national security is our debt. . . . It's not sustainable. Our country is heading toward fiscal ruin. Nail after nail after nail is being put into our coffin of economic catastrophe. The Senate is now gearing up to put hundreds of billions of more debt onto our already debt-laden country. I fear our country's fate could be sealed. So what should we do? Is it too late for the United States to reverse its course? To best answer this question, I am reminded of a famous quote: ``Those who cannot remember the past are condemned to repeat it.'' In order to best determine the path our country will take in the future, we need to examine the road we have already gone down. This chart I have in the Chamber is from the Great Recession of 1920 that most people in America have never heard about. It shows that in 1920 we had a fairly healthy economy, with a little over 5 percent unemployment. The next year it shot up, it over doubled, to almost 12 percent. Well, during that same period of time, the economy declined by nearly 7 percent. In other words, GDP went down by almost 7 percent. From May of 1920 to July of 1921, automobile production declined by 60 percent and industrial production in America dropped by almost a third. The stock market also fell dramatically. As a matter of fact, it lost half its value. So you can see the economic time of 1920 to 1921 was dire, maybe even more dire than what we face today. Well, we had a Federal Government that decided to take a different course. Instead of spending money, what they decided to do was to cut tax rates and cut spending at the same time. President Harding actually proposed--and it was enacted by the House and the Senate--a dramatic cut in Federal spending by one-third. To cut the Federal budget by one- third--can you imagine that today, cutting the Federal budget by one- third? Tax rates across the board, marginal tax rates across the board were slashed. The top rate at that time was 75 percent. They cut it to 25 percent. So they did not just cut taxes and raise spending so you balloon the deficit, they cut taxes and cut spending at the same time. What were the results? Well, what do we know about the 1920s? What is the common term we hear about the 1920s? It is called the Roaring Twenties. It is because the economy boomed during the 1920s. This unemployment rate that was 11.7 percent--within a year and a half, that fell to a little over 1 percent. OK. So it went from 5.2 percent to 11 percent. They cut taxes and Federal spending and, boom, the unemployment rate plummeted--people had jobs. Guess what happened to the national debt--not the deficit--the national debt. The national debt was cut by one-third during this time. So if you cut taxes, you cut spending, you incentivize the private sector to create jobs. Guess what happened. When more people make more money and more people are employed, more money comes into the Federal Government to actually not only reduce the deficit but, in this case, actually pay down some of the national debt. Well, let's move forward just a little bit. The Great Depression. Many people have said we need to spend money to get us out of an economic downturn. During the Great Depression, we had a President, a Republican President, who started this. He was very much an interventionist President. During the Great Depression, he came in, had trade protectionist policies, raised taxes, and increased Federal spending with all kinds of different government projects on infrastructure. We always hear about how infrastructure is going to help take the economy out of the recession if we spend more and more money. Well, I will have another point about spending on infrastructure and government spending in another country in just a minute. But we have to remember-- and I ask this simple question to audiences back in Nevada whom I talk to: If government spending was going to take us out of that Great Depression, why did the Great Depression last as long as it did? I actually posed that question to the new OMB Director. The new OMB Director said he has actually studied the Great Depression at length. So I asked him the question: Why didn't government spending take us out of the Great Depression? His answer was this: He said we did not spend enough money. I was flabbergasted by that statement. But that was his belief, that we did not spend enough money. Many people believe the stimulus bill we had here almost 2 years ago was not large enough and that is why we have not had an economic recovery. Well, the reason we came out of the Great Depression was not because of government spending. It was because we kind of forgot about the Great Depression because of World War II, and our country completely focused on World War II. The stock market did not recover to 1929 levels for 25 years. FDR was a great wartime President, but his economic policies were not good for this country. Well, where else can we look in history to find whether government spending actually works to take you out of an economic downturn? In Japan, during the 1990s--this chart actually shows 1988 to 1998-- they had government spending as a percentage of GDP go up. Yet in Japan--this is the red line. The blue line is spending; the red line is unemployment--it kept going up. Japan tried six different stimulus bills--a total of $6 trillion on infrastructure on all kinds of road projects, bridge projects, everything you hear about that is supposed to be good to take you out of an economic downturn. Well, the 1990s in Japan is called the lost decade. They had basically zero growth during the 1990s. Actually, they have had another decade of lost economic output. So Japan certainly is not a good example of a place you can point to where government spending actually takes you out of an economic downturn. As a matter of fact, if you think about the $6 trillion Japan spent-- which is much larger than any economic stimulus we have tried, much larger as a percentage of an economy than what we tried during the Great Depression--so if it was going to work, why didn't it work in Japan? Why didn't it work during the Great Depression? Why didn't it work for the stimulus bill we tried? By the way, President Obama tried a stimulus bill close to $800 billion. President Bush 2 years before that tried an economic stimulus bill of $150 billion, basically sending checks to people hoping to get them to spend it. We need good economic policy to get us out of an economic downturn, and these temporary little spending bills are not the way to go. So to continue on with this, let me explain a little bit about what else happened in Japan. First of all, Japan's public debt in 1997 grew to over 100 percent of GDP. By 2009, it is now almost 200 percent of GDP. So this spending not only didn't take them out of an economic downturn, it added to their future problems, and that is, unfortunately, what we are threatening to continue to do today. Let me talk about the tax extensions before us today. Let me clearly state: I believe it would be a huge mistake for us to raise taxes on anybody during an economic downturn. I am for extending the current tax rates and making sure those tax increases don't go into effect. It has been argued by the other side that especially the top rates were the reason we ran up the debt and the deficits during the Bush years. Well, if my colleagues remember when President Bush came into office, similar to what happened when President Obama came into office, he inherited a recession. Then we had 9/11 happen, and it sent us into an even worse recession. In 2001, to stimulate the economy, we did cut taxes. The mistake we did make is we didn't cut spending at the same time, but at least we cut taxes. The blue line are revenues. So when the recession hit, we cut taxes and it takes a little while to recover, but after that, revenues--and these are the 2001 tax cuts and these are the 2003 tax cuts--actually went up. The reason for our deficit was not that we didn't have enough money coming in to the Federal Government. The reason for our deficit is we spent too much money. Republicans were thrown out of office because we spent too much money. But the deficit was not caused by the tax cuts of 2001 and 2003. So it would be a mistake to raise taxes during this economic downturn. However, I believe we need to cut spending, based on the economic models I have already talked about during the 1920s and how they actually worked. When you cut taxes and cut spending at the same time, it can actually pull your country out of an economic downturn. There are businesses across my State--I spent a lot of the last couple of months touring around my State talking to businesses. There is one small business owned by two women in Nevada called ``Nothing Bundt Cakes.'' They make little bundt cakes. Unfortunately, they are really good, because I like to eat them and it is not good for my waistline, but they have a great product. I was talking to them and they would love to expand their business right now. Do you know what they said to me? They said, We can't. Two reasons: One is we think our taxes are going to be going up so we can't plan for it; and No. 2 was the effects of the health care bill. We don't know how much that is going to cost us. So it is the uncertainty out there of why they would not expand their business, and they probably could have created another 20, 30, 40 jobs. Those jobs didn't get created because of the uncertainty of what is going on. So extending the tax cuts, I believe--extending the current tax rates is a better way to say it--is very important to give businesses some certainty. It is not the only thing we need to do to give them certainty, but it is certainly one of the things that is important. In this bill--which I agree with; I think it is good we are not going to let the death tax go back up to 55 percent. There are a lot of small businesses out there--try to imagine trying to plan estate planning and things such as that, especially in a small business where you want to see it continue. All of a sudden, maybe it is going to go down. Well, now we are going to do a 2-year extension. It is very difficult to plan for those things for the future. We need to give more certainty. Two years in this bill is better than nothing, but we still need to make that longer term so you can do estate planning and business continuation planning. Because think about this: If a small business is owned by a family versus a business that is owned by a corporation, if somebody dies in the corporation, the business continues. If somebody dies in a small business where the principal owns the business, they may have to sell the business to pay the taxes. That business actually may end up getting closed down and those jobs are lost. So it is important to give some certainty when it comes to death tax planning, estate tax, whatever term you want to use with it; that is important, especially for small businesses, ranches, and farms across America. The top rate we keep hearing criticized as far as extending that, they say it is only 1, 2, 3 percent of the people, whatever number I have heard tossed out from the other side. What people fail to realize, though, is that is 25 to 35 million people who are employed by those very small businesses that make the top rate. So if you raise taxes on those people, they have less money to spend to buy that next piece of equipment. Somebody had to make that--if it is in America, that created jobs in America--or they can't hire that next employee. So we don't get the job creation we want. Raising taxes on small businesses would be a mistake. Raising taxes on the middle class would be a mistake. Especially if they can plan long term, if the rates they know are going to be there for the long term, they can put that in part of their budget. If it is just a one-time check, they can't plan for the future. I actually disagree with the payroll tax that is in here, at least the way it is structured, the same way that in President Bush's stimulus package a couple of years ago where we sent $600 back to individuals. This isn't the long term solution that we need. Think about the mentality of families. If there is a difficult time that families are going through, if they get a check in the mail, and they know they may be losing a job or they are barely getting by as it is, if they get a little money in the bank, are they going to spend that? Or are they maybe going to pay down debt or save it because of the uncertain economic future? A lot of families are making the decision to save it or pay down debt. So it is not stimulating the economy as people think it will. The other problem also with the payroll tax and some of the other taxes in this bill that are extended is adding to our national debt. The Bush economic growth package, his stimulus bill he put together, we have heard about this being a bipartisan agreement. The bill was passed 81-16. Every single Democrat actually voted for that bill. Sixteen Republicans voted against it, but it was a bipartisan bill. People grabbed hands and added more money to our debt. People talk about this bill being a compromise. Democrats wanted certain things; Republicans wanted certain things. Here is what a compromise is around this body. A compromise is: You want certain things; I want certain things. We will get what we want and we will pass that debt on to our children and our grandchildren. That is how this body is operating right now. We are being fiscally irresponsible with the bill before us today. Yes, we need to extend the tax rates. But we should have at least sent a message to the rest of the world that said we are going to do something about the debt. Let's put up the chart. We just had the debt commission a few weeks ago come out with their report--the President's debt commission. This is one of the quotes from it: ``America cannot be great if we go broke.'' That is exactly what we are doing: We are going broke. Harken back to the first chart, Admiral Mullen. Remember what the Chairman of the Joint Chiefs of Staff said. I want to repeat this. This is so important: ``The biggest threat to our national security is our debt.'' He said, ``It's not sustainable.'' This debt is real. It is a very huge threat to the future prosperity of America. This bill before us is sending a message to the markets. It is saying, even though the debt commission came out and said we need to trim this by at least $4 trillion, this spending and this deficit we have going, you know what, we are just going to add hundreds of billions more to that problem. So I believe what we have before us is even going to get worse. Before this bill we will vote on today, these are the President's projections: The red bars are interest we pay on the national debt, such as interest on your credit card. A family pays interest on a credit card and doesn't get anything for it. It is because of their overspending habits. Well, this is the result of Congress's overspending habits. Next year, in 2011, it is going to be close to $250 billion. We get nothing for that. We get no roads, no schools, no veterans benefits, no anything. That is just money we are paying to the Saudis, the Chinese, and other foreign governments who have bought our debt. In 2012 it goes up further and further. In 2020, it is over $900 billion a year in interest on the national debt. That is more than we pay for Social Security, Medicare, Medicaid, or national defense, and we get nothing for that. This path we are on is unsustainable. We saw what happened to Greece earlier this year. Within 48 hours, there was an economic implosion, and if they hadn't had the European Union to bail them out, their country literally would have gone bankrupt. Not too long ago in Ireland, within about 7 days, the same thing happened. Once again, they had the European Union to bail them out. What happens if the same thing happens in America? Just this morning, this is what Moody's, one of the rating agencies, said: Unless there are offsetting measures-- That means spending cuts-- the package-- The package is the bill we have before us today-- will be credit negative for the U.S. and increase the likelihood of a negative outlook on the U.S. Government's AAA rating during the next 2 years. In common language, what does this say? This says we are becoming a bigger risk and it is threatening our AAA rating which means if this AAA rating goes down, we pay higher interest rates. Just like an individual, you are more of a risk. When you borrow money, you pay a higher interest rate. This number here is based on a AAA rating. These numbers all get much worse if we lose our AAA rating. The bill we have before us--we should have sent a message while we were continuing the current tax rate, if we wanted to do the unemployment benefits, which I believe we should have extended. We should have done that with spending cuts in other places. Senator Coburn has a package to vote on that has real spending cuts. I have offered amendment after amendment after amendment on this floor on spending cuts. We always hear during campaigns: I am for fiscal responsibility. I am for this, I am for that. When it comes time for voting, we never seem to get the votes. When are we going to actually show some fiscal responsibility around this place? This bill should have at least $100 billion, $200 billion in offsets. The Congressional Budget Office and the Joint Committee on Taxation said this bill is going to add $900 billion to the debt--$900 billion. Shouldn't we at least have offset some of that to show the world that we are actually serious about fiscal responsibility? That is all I am saying we should have done and why I am voting against this bill, because I don't think we can continue to add more and more and more debt. The debt commission had it right: America cannot be great if America is broke. Let me conclude. The 1920s showed you can have economic recovery without adding to the debt actually because the economy grows and you have held the line on spending, and you can actually pay down the debt. That is what we did in the late 1990s. We didn't actually cut spending then, but we at least slowed the rate of growth of spending, with the Republicans in Congress and a Democratic President, and we had economic growth, which got us to not only a balanced budget, but it got us to where we were paying down some of the debt. That is what we need to do now--start going back to 2008 spending levels. Spending has increased well over double digits over the past couple of years around this place, and we were spending plenty of money in 2008. So let's go back to 2008 levels--that will save us a couple billion dollars--and then let's work on eliminating some of what Senator Coburn has identified as a lot of wasteful spending programs in this country, which is at least another $150 billion in wasteful programs he has discovered. If this country is actually serious about debt, then we will continue to be the leader of the world, our economy can continue to grow, and America's best days really can be ahead of us. But if we choose to continue to be fiscally irresponsible, then I am afraid we could be headed down a path that we cannot reverse. If what happened to Greece and what happened to Ireland happens to the United States, there is no one to bail us out. So we need to start acting in a fiscally responsible way, not as Republicans, not as Democrats, but as Americans, and say to these young people, like we have sitting before us here today, we care about you, we care about your future, and we want America to be as great for you as it has been for us. The only way to do that is to make sure we get our fiscal house in order and quit passing so much debt on to future generations. Mr. President, I yield the floor.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, I rise today to address a new and very serious threat to our national security. In July of this year, the organization known as WikiLeaks, led by an Australian citizen named Julian Assange, published 90,000 classified intelligence documents related to our efforts in the ongoing war against the Taliban insurgents and al-Qaida in Afghanistan. In October, WikiLeaks dumped 400,000 classified documents that revolved around the efforts of our Nation and our coalition partners to bring democracy, peace, and stability to the people of Iraq. Now, just a few days ago, WikiLeaks has dumped another 250,000 documents that reveal private, often personal, communications between diplomats and heads of state--communication that is necessary for the critical discourse that occurs between governments on the many relevant and challenging international issues of our day. In light of the damage that has already been done and the continuing threat posed by WikiLeaks, I am here to introduce a bill that will help defend our national interests, protect our troops, and provide assurance to our friends and allies that what they say to us in private will stay with us, and that there will be consequences for the reckless actions taken by WikiLeaks, or others, who may attempt to do what they have done--consequences that are consistent with our values and with our first amendment. Let me spend a few moments examining the nature of this threat and some of the serious implications. After WikiLeaks dumped 400,000 classified documents concerning our efforts to promote democracy in Iraq, Pentagon spokesman Geoffrey Morrell stated the Department of Defense had to scramble to notify 300 Iraqis because we were immediately concerned about their safety. He went on to say that as many as 60,000 Iraqis could possibly be identified in these leaked documents. Let us consider the plight of those Iraqis just for a moment. These individuals came forward to us with information that they felt would help their government deal with the insurgency and terrorist presence that has been an impediment to peace and stability within their nation. Yet this despicable character, Julian Assange, has rewarded their bravery by naming them to their enemies. This puts their very lives and the lives of their families in jeopardy. This discourages other Iraqis from coming forward and standing up for freedom. This, in turn, jeopardizes the lives of our American troops and harms our efforts to provide stability in Iraq to the point where we can withdraw our troops. Unfortunately, if Iraqis become afraid to speak out against the terrorists in their midst for fear of being named by Julian Assange, succeeding becomes that much more difficult. Let's turn to Afghanistan. Back in July, I read in the Times of London a very interesting assessment about the implication of Mr. Assange's actions. Let me quote: Hundreds of Afghans' lives have been put at risk by the leaking of 90,000 intelligence documents because the files identify informants working with NATO forces. Let me quote again from the Times: In just two hours of searching the WikiLeaks archive, the Times found the names of dozens of Afghans credited with providing detailed intelligence to U.S. forces. Their villages are given for identification and also, in many cases, their fathers' names. To the credit of the Times, they cited examples to back up their claims. But as any responsible media organization should, they at least, in their report, took the steps of hiding the names of the villagers who came forward with information to assist their government and NATO. Madam President, just as WikiLeaks recklessly dumped the leaked intelligence on Afghanistan, a Taliban spokesperson gave an interview in which he said: We are studying the report. . . .We will investigate through our own secret service whether the people mentioned are really spies working for the U.S. If they are U.S. spies, then we know how to punish them. I don't think I need to elaborate on how the Taliban punishes their enemies. Now we have this latest dump of classified State Department cables and information. I applaud our former colleague, Secretary Clinton, for the excellent remarks she has made on this issue. She pointed out that the leaks have put people's lives in danger, threatened our national security, and undermined our efforts to work with other countries to solve shared problems. An essential dialog takes place between nations--a dialog that has existed since nations first began. With that dialog, diplomats need to be able to express their views candidly and, yes, privately. This is how a lot of problems are solved. Our Nation is working toward international solutions to some very complex problems. The Government of Yemen is fighting terrorists that reside within their own borders. The proliferation of nuclear weapons technology and the threat of long-range missiles in North Korea are problems that require multilateral international engagement. Secretary Clinton made another point I will focus on for a moment. Assange didn't just leak classified details about meetings between diplomats. Our diplomats overseas meet with local human rights workers, journalists, religious leaders, and others--people with unique insight into a wider range of issues. Unfortunately, we live in a dangerous world where revealing the identity of someone fighting for social issues, such as women's rights or children's rights or the identity of an advocate for religious freedom could have serious repercussions that include imprisonment, torture, or even death. I wonder if WikiLeaks understands if Afghan villagers or activists fighting for human rights under oppressive regimes are killed as a result of being named in these leaks, the blood of these good people is on their hands. Before I proceed with an examination of the bill that I have crafted to address this threat, let's be clear about some things. No one should do Julian Assange any credit by referring to him as a journalist or as part of the news media. He is a computer hacker and an anarchist. True to his hacker roots, he has devised a portal through which he hopes members of our government will anonymously and surreptitiously provide him unfettered access to our closest secrets. Make no mistake, these actions have harmed our friends and helped our enemies in a manner prejudicial to the safety and national interest of the United States. So with this threat in mind, a threat that the Founders could have never seen coming, we have crafted a bill that amends the Espionage Act, specifically Title 18, Section 798. Under current law, it is a criminal act for someone who knowingly and willfully communicates, furnishes, transmits, publishes, or otherwise makes available to any unauthorized person any classified information concerning the communication intelligence activities of our United States of America. My bill, which we are introducing today, extends this protection currently afforded to the communications intelligence to human intelligence, known as HUMINT. This bill protects human intelligence sources and methods. I want to be very clear. It is my opinion that we can go after Julian Assange under the current statute. But what our legislation does is updates this decades-old statute to address this evolving threat prospectively. I have no doubt that Assange is going to put out another document dump on his Web site and another one after that. Once he does, this bill would give the administration increased flexibility to deal with him and potentially other copycat organizations that aspire to his likeness. There are a couple of concerns I want to address. First, one might wonder how this bill stands with our first amendment. While I hope we can all agree that Julian Assange is no journalist, some might wonder if the amended law that would result from this bill could be applied to the news media. It is pretty frustrating for the intelligence community when communications intelligence sources and methods are blown. When this happens, sources of vital intelligence dry up or become inaccessible, and potentially millions of defense dollars go down the drain. However, despite the serious consequences associated with losing a communications intelligence source or method, and the damage that does to our national security, no Presidential administration has ever prosecuted a member of the news media under the existing statute, which has been on the books since 1951. Let's face it, leaks do happen. As Secretary Gates stated just a few days ago, regrettably, our government leaks classified information like a sieve. This bill does not stop anybody from publishing leaks, but it does provide legal incentive to Julian Assange to do what Amnesty International has repeatedly asked him to do: be more responsible about how classified leaks are handled by not revealing the identity of these classified human intelligence sources. Let me be clear. This bill doesn't target journalists. Instead, it provides flexibility for the Attorney General with a targeted solution and increased flexibility to deal with WikiLeaks. Some might be wondering whether Julian Assange, who is a foreign citizen, can be prosecuted under the Espionage Act. In fact, the courts long ago established that he can be prosecuted under these statutes. I am not a lawyer, but if you study the United States v. Zehe from 1986, it becomes immediately clear that Assange can be prosecuted under the Espionage Act. That said, my concern is that our existing laws may have some loopholes through which he can escape. In fact, just a few days ago in the Washington Post, I read where Attorney General Holder said: To the extent that there are gaps in our laws . . . we will move to close those gaps. Well, I submit that the bill I am introducing today, with a couple of others, will do just that. It closes a gap in our laws and it moves to protect vital human intelligence sources and methods consistent with the manner in which current law communications intelligence is already protected. I thank Senators Lieberman and Brown of Massachusetts for joining me in this important legislation and for the input Senators Lieberman and Brown of Massachusetts have given me on this important legislation. I hope we can take up this bill, consider it, work with the administration, work with the House, and pass this important legislation so the next time, and we know there will be a next time, that Julian Assange and his associates leak classified intelligence that puts people's lives in danger, we can actually have another tool in the arsenal so our Department of Justice can go after these despicable people.

Mr. ENSIGN

Mr. ENSIGN. Madam President, reserving the right to object, because the Republicans want to extend unemployment benefits without increasing the deficits, would the Senator agree to include an amendment proposed by Senator Brown that would offset the cost of the bill with unspent Federal funds, the text of which is at the desk?

Mr. ENSIGN. Further reserving the right to object, first of all, I would love to offset the tax cuts with spending reductions in areas across the board because I think the deficit is a problem. Because the Senator from Pennsylvania just wants to increase the deficit with unemployment benefits, without offsetting it, without spending cuts, I am forced to object.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, I rise today to address a new and very serious threat to our national security. In July of this year, the organization known as WikiLeaks, led by an Australian citizen named Julian Assange, published 90,000 classified intelligence documents related to our efforts in the ongoing war against the Taliban insurgents and al-Qaida in Afghanistan. In October, WikiLeaks dumped 400,000 classified documents that revolved around the efforts of our Nation and our coalition partners to bring democracy, peace, and stability to the people of Iraq. Now, just a few days ago, WikiLeaks has dumped another 250,000 documents that reveal private, often personal, communications between diplomats and heads of state--communication that is necessary for the critical discourse that occurs between governments on the many relevant and challenging international issues of our day. In light of the damage that has already been done and the continuing threat posed by WikiLeaks, I am here to introduce a bill that will help defend our national interests, protect our troops, and provide assurance to our friends and allies that what they say to us in private will stay with us, and that there will be consequences for the reckless actions taken by WikiLeaks, or others, who may attempt to do what they have done--consequences that are consistent with our values and with our first amendment. Let me spend a few moments examining the nature of this threat and some of the serious implications. After WikiLeaks dumped 400,000 classified documents concerning our efforts to promote democracy in Iraq, Pentagon spokesman Geoffrey Morrell stated the Department of Defense had to scramble to notify 300 Iraqis because we were immediately concerned about their safety. He went on to say that as many as 60,000 Iraqis could possibly be identified in these leaked documents. Let us consider the plight of those Iraqis just for a moment. These individuals came forward to us with information that they felt would help their government deal with the insurgency and terrorist presence that has been an impediment to peace and stability within their nation. Yet this despicable character, Julian Assange, has rewarded their bravery by naming them to their enemies. This puts their very lives and the lives of their families in jeopardy. This discourages other Iraqis from coming forward and standing up for freedom. This, in turn, jeopardizes the lives of our American troops and harms our efforts to provide stability in Iraq to the point where we can withdraw our troops. Unfortunately, if Iraqis become afraid to speak out against the terrorists in their midst for fear of being named by Julian Assange, succeeding becomes that much more difficult. Let's turn to Afghanistan. Back in July, I read in the Times of London a very interesting assessment about the implication of Mr. Assange's actions. Let me quote: Hundreds of Afghans' lives have been put at risk by the leaking of 90,000 intelligence documents because the files identify informants working with NATO forces. Let me quote again from the Times: In just two hours of searching the WikiLeaks archive, the Times found the names of dozens of Afghans credited with providing detailed intelligence to U.S. forces. Their villages are given for identification and also, in many cases, their fathers' names. To the credit of the Times, they cited examples to back up their claims. But as any responsible media organization should, they at least, in their report, took the steps of hiding the names of the villagers who came forward with information to assist their government and NATO. Madam President, just as WikiLeaks recklessly dumped the leaked intelligence on Afghanistan, a Taliban spokesperson gave an interview in which he said: We are studying the report. . . .We will investigate through our own secret service whether the people mentioned are really spies working for the U.S. If they are U.S. spies, then we know how to punish them. I don't think I need to elaborate on how the Taliban punishes their enemies. Now we have this latest dump of classified State Department cables and information. I applaud our former colleague, Secretary Clinton, for the excellent remarks she has made on this issue. She pointed out that the leaks have put people's lives in danger, threatened our national security, and undermined our efforts to work with other countries to solve shared problems. An essential dialog takes place between nations--a dialog that has existed since nations first began. With that dialog, diplomats need to be able to express their views candidly and, yes, privately. This is how a lot of problems are solved. Our Nation is working toward international solutions to some very complex problems. The Government of Yemen is fighting terrorists that reside within their own borders. The proliferation of nuclear weapons technology and the threat of long-range missiles in North Korea are problems that require multilateral international engagement. Secretary Clinton made another point I will focus on for a moment. Assange didn't just leak classified details about meetings between diplomats. Our diplomats overseas meet with local human rights workers, journalists, religious leaders, and others--people with unique insight into a wider range of issues. Unfortunately, we live in a dangerous world where revealing the identity of someone fighting for social issues, such as women's rights or children's rights or the identity of an advocate for religious freedom could have serious repercussions that include imprisonment, torture, or even death. I wonder if WikiLeaks understands if Afghan villagers or activists fighting for human rights under oppressive regimes are killed as a result of being named in these leaks, the blood of these good people is on their hands. Before I proceed with an examination of the bill that I have crafted to address this threat, let's be clear about some things. No one should do Julian Assange any credit by referring to him as a journalist or as part of the news media. He is a computer hacker and an anarchist. True to his hacker roots, he has devised a portal through which he hopes members of our government will anonymously and surreptitiously provide him unfettered access to our closest secrets. Make no mistake, these actions have harmed our friends and helped our enemies in a manner prejudicial to the safety and national interest of the United States. So with this threat in mind, a threat that the Founders could have never seen coming, we have crafted a bill that amends the Espionage Act, specifically Title 18, Section 798. Under current law, it is a criminal act for someone who knowingly and willfully communicates, furnishes, transmits, publishes, or otherwise makes available to any unauthorized person any classified information concerning the communication intelligence activities of our United States of America. My bill, which we are introducing today, extends this protection currently afforded to the communications intelligence to human intelligence, known as HUMINT. This bill protects human intelligence sources and methods. I want to be very clear. It is my opinion that we can go after Julian Assange under the current statute. But what our legislation does is updates this decades-old statute to address this evolving threat prospectively. I have no doubt that Assange is going to put out another document dump on his Web site and another one after that. Once he does, this bill would give the administration increased flexibility to deal with him and potentially other copycat organizations that aspire to his likeness. There are a couple of concerns I want to address. First, one might wonder how this bill stands with our first amendment. While I hope we can all agree that Julian Assange is no journalist, some might wonder if the amended law that would result from this bill could be applied to the news media. It is pretty frustrating for the intelligence community when communications intelligence sources and methods are blown. When this happens, sources of vital intelligence dry up or become inaccessible, and potentially millions of defense dollars go down the drain. However, despite the serious consequences associated with losing a communications intelligence source or method, and the damage that does to our national security, no Presidential administration has ever prosecuted a member of the news media under the existing statute, which has been on the books since 1951. Let's face it, leaks do happen. As Secretary Gates stated just a few days ago, regrettably, our government leaks classified information like a sieve. This bill does not stop anybody from publishing leaks, but it does provide legal incentive to Julian Assange to do what Amnesty International has repeatedly asked him to do: be more responsible about how classified leaks are handled by not revealing the identity of these classified human intelligence sources. Let me be clear. This bill doesn't target journalists. Instead, it provides flexibility for the Attorney General with a targeted solution and increased flexibility to deal with WikiLeaks. Some might be wondering whether Julian Assange, who is a foreign citizen, can be prosecuted under the Espionage Act. In fact, the courts long ago established that he can be prosecuted under these statutes. I am not a lawyer, but if you study the United States v. Zehe from 1986, it becomes immediately clear that Assange can be prosecuted under the Espionage Act. That said, my concern is that our existing laws may have some loopholes through which he can escape. In fact, just a few days ago in the Washington Post, I read where Attorney General Holder said: To the extent that there are gaps in our laws . . . we will move to close those gaps. Well, I submit that the bill I am introducing today, with a couple of others, will do just that. It closes a gap in our laws and it moves to protect vital human intelligence sources and methods consistent with the manner in which current law communications intelligence is already protected. I thank Senators Lieberman and Brown of Massachusetts for joining me in this important legislation and for the input Senators Lieberman and Brown of Massachusetts have given me on this important legislation. I hope we can take up this bill, consider it, work with the administration, work with the House, and pass this important legislation so the next time, and we know there will be a next time, that Julian Assange and his associates leak classified intelligence that puts people's lives in danger, we can actually have another tool in the arsenal so our Department of Justice can go after these despicable people.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, I am honored to rise today to pay tribute to Margot Allen, an exceptional employee, a dedicated patriot, an extraordinary woman, and a treasured friend, in celebration of her 70th birthday. Margot has been an invaluable part of my congressional team since our first campaign in 1994. Raised in Alabama, Margot has the charm and grace of a true southern belle. Add to that her demand for precision and professionalism and her quick wit, and it explains why she has been known to elicit a, ``Why, thank you!'' from an obtuse obstructionist who has quite politely been told to ``take a long walk off a short pier'' in that captivating southern drawl. Margot's work on behalf of veterans and seniors in Nevada has earned her a stellar reputation as the authority among her peers and a miracle worker among those constituents who have benefited from her tenacious advocacy. She has gained the respect and admiration of those both in and out of government agencies with whom she collaborates. As a Regional Representative in my Las Vegas office, Margot has been a champion for Nevada's servicemen and women, working tirelessly to resolve problems arising from bureaucracy or errors--often times being able to bring relief and hope to battle weary constituents. Her association with active duty and retirees from all branches of service coupled with her deep appreciation for the ``Tradition of Honor and Legacy of Valor'' has earned her profound admiration from privates and generals alike. At Nellis Air Force Base in Las Vegas, NV, the Commanding Officer of the 99th Airbase Wing is often referred to as the ``Mayor of Nellis.'' However, anybody who has been stationed at Nellis will definitely concede that it is Margot who is the mayor. She knows everybody and everybody knows her. Her passion for accuracy in grammar and written composition took her to the University of Alabama where she worked as a professor. Margot also taught English language skills to Panamanians while she and her beloved husband Leonard were living in Panama where he worked for the Department of Defense. Her love of the English language and her commitment to scholarship has not only served her well over the years but also become an unequaled resource for my staff and me. Margot provides the final inspection for every document that is sent from any of my offices. She calmly, methodically, and repeatedly teaches the placement of commas, patiently explains when healthcare is one word or two, and has been known to ask staff on more than one occasion, ``Honey, why don't you just tell me what you meant to say.'' I am very privileged as a United States Senator to work with a team of highly skilled, capable, and dedicated staff members who are committed to this great country and the people of Nevada, and any measure of excellence that we achieve will bear the distinct handprint of Margot Allen. It is truly my pleasure and my honor to recognize the outstanding contribution Margot Allen has made to my organization and to the people of Nevada in the years she has been part of my congressional team and to wish her a very blessed and happy birthday.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, many Americans may be wondering what this huge stack of paper is that I have on my desk. Over 2,000 pages of this stack of paper represent the actual health care bill. The rest of the stack consists of the regulations that have been written to this point. From what we understand, once the whole health care bill and regulations are written, this stack of paper will grow much higher; estimates are as much as 20,000 pages total. The complexity of the health care law is incredible. The resolution we have before us today concerns grandfathered health plan status. This regulation is one of those regulations that many of us believe is going to do damage to our health care system. I want to talk a little bit about the regulations under discussion today. Over the last couple of months, I have gone around to many businesses in my home State of Nevada, to talk about many of these regulations as well as the health care bill. Let me tell you, many small business owners in my State are very concerned about what this health reform bill is going to do to their businesses. A lot of small businesses struggle to do the right thing by giving their employees health care. A lot of them cannot afford the Cadillac plans that a lot of big businesses have, but they are trying to do the right thing. Some businesses cover half of what their employees pay. Some businesses have slimmed-down plans. The vast majority of the health plans that small businesses offer would not meet the minimum standards that this health care bill is going to require. Why is that important? The President said during the health care debate that if you like your plan you can keep it. If you like your doctor, if you like your plan, you will absolutely be able to keep it. There is a small detail he left out. The detail is this: If you change your health plan--and it does not have to be in a significant way--or if you change your copays--you could lose your grandfathered status. If you lose your grandfathered status you now have to comply with the minimum standards in the Federal law. That is a problem because, for most small businesses, these standards will dramatically increase the cost of their health insurance for their employees and a lot of them are barely keeping their doors open today. A lot of small businesses I talk to are actually putting pencil to paper and figuring out whether they are even going to be able to keep the plans they have today. The advocates will say: Well, don't change your plan. The reality is that every single year, businesses look at the health care plans that they offer and almost every year they make changes to those health care plans. Under this regulation, if you make changes to your health care plan you could lose the grandfather status. That is a major problem. According to the government's own statistics, by 2013 as many as almost 70 percent of all employer plans and 80 percent of small business plans will relinquish their grandfathered status. Those are the government's own estimates. Based on these numbers, it doesn't sound like everybody is going to be able to keep their plan, as the President talked about in his promises about this health care legislation. In my view--and I think this view is shared by a lot of experts who are studying this health care plan, this bill is going to raise costs for those who currently have insurance. Think about it; if you are going to cover 30 million people there will be costs associated with that coverage. There was a $500 billion cut in Medicare and there was an increase in taxes. We know that a lot of different taxes were increased to pay for this bill. But the other pay-for in this bill, that was not officially scored as a pay-for, is that for people who have insurance--it is going to become more expensive for them because of a lot of the mandates in the bill. We have seen recently, insurance company after insurance company, when they are going to their State commissions bringing forward fairly large increases. I was talking to a small business owner the other day in Nevada. He told me his plan is going up 38 percent. That was the lowest bid he could get; a 38-percent increase for this year. The insurance companies told him it is because of this health care bill. I was on a telephone call yesterday. I did a telephone townhall meeting back in my State. A senior citizen was on the phone. He was telling me about his Medicare supplemental insurance that is covered by his union. The copays and the premiums for that were going up dramatically. He was wondering how he was going to be able to pay his rent. He has virtually no discretionary income, so any premium increase is going to make it tough for him. He is actually figuring out how he is going to be able to make his rent payments. Those are some of the unintended consequences with this bill and the regulations that are being written. I think we need to take a second look at health reform. First of all, obviously I wish to see the health reform bill repealed and replaced with real health insurance reform that makes insurance more affordable. I support things such as buying insurance across State lines--similar to how we buy car insurance across State lines. I also wish to see us enact real medical liability reform that would lower the costs of health care in this country. All of these things would be good to make health care more affordable and accessible for more Americans as opposed to what we have today. But let's at least start this process by rejecting the regulations that are going to hurt the grandfathered-in status of a lot of these plans. If you take away grandfathered status from a lot of plans, a lot of small business owners are going to be hurt and a lot of people who work for small businesses are going to lose their health insurance. This is because the small businesses will not be able to afford to comply with this health care bill and the regulations that are associated with it. I urge support of this resolution of disapproval. I appreciate Senator Enzi for bringing this resolution of disapproval of these regulations forward. I think this resolution is something the Senate should support and support in a bipartisan way. I yield the floor.

Mr. ENSIGN

Mr. ENSIGN. Madam President, I rise today to discuss the resolution before us--a resolution of disapproval to prevent the implementation of the recent National Mediation Board regulations. Many Americans are likely unaware of the vote we are about to have today, let alone the controversial rule it concerns. Last May, the National Mediation Board finalized a new regulation that would turn 75 years of union voting precedent on its head. I believe a vote to support this resolution of disapproval is a vote to protect our Nation's workers. Specifically, the National Mediation Board has changed the voting rules under the Railway Labor Act. The Railway Labor Act is the law that sets labor union rules for railways and airline employees. For the past 75 years, under this act, a majority of employees in an ``organizing unit'' have had to vote yes to form a union. Under this new change, only a majority of employees who actually vote are needed to form a union. How does this new rule work in practice? For example, if an airline has 1,000 employees who are nonunion today, currently 501 must vote yes to unionize. But under this new union rule, if only 300 of those employees vote, then it would require only 151 of those employees to unionize and speak for the entire 1,000 employees. Since there is no procedure to deunionize under the Railway Labor Act, once this union is formed, these 1,000 employees would be permanently unionized. There is simply no way to vote out a certified union in this part of the law even if a majority is unhappy with the union leadership. This doesn't make sense given that the National Labor Relations Act--the law that governs most labor unions in this country--does allow workers to deunionize. It is also concerning that the National Mediation Board effectively blocked out the input of its sole Republican member, Chairman Elizabeth Dougherty, during the rulemaking process. Chairman Dougherty stated: The proposal was completed without my input or participation, and I was excluded from any discussions regarding the timing of the proposed rule. That sounds like what has been going on here lately. It certainly doesn't sound like the transparency on which the other side of the aisle campaigned. The American people listening to this debate may be thinking this rule change sounds like nothing more than a political payback to labor, and in my opinion, they are right. The American people listening today may also be thinking this whole debate sounds vaguely familiar, and they would be right again. A proposal called card check may ring a bell. Recall that under the Democrats' card check litigation, American workers would be deprived of the right to a secret ballot when voting on whether to form a union. And while card check and the National Mediation Board rule change may not be one in the same, they both lead to an identical outcome: undermining the fundamental rights of American workers. You may be asking whether this rule will help workers in the airline and railway industries unionize. Perhaps this rule is needed because the employers have stacked the deck of cards against unionization efforts. But let's look at the facts. An average of 72 percent of airline and railway employees today are unionized, compared to only 8 percent in the rest of the private sector. I repeat: 72 percent in airlines and railways, only 8 percent in the rest of the private sector. So it can't be the case that this new policy is in response to the failure of 75 years of voting precedent or employers blocking the ability for employees to unionize. In fact, workers at Delta have voted down six organizing drives over the past 10 years. This Nation is facing unprecedented economic difficulties. I speak from experience. The unemployment rate in my State of Nevada is 14.4 percent. We lead the country, unfortunately. The Federal bureaucracy should be working to strengthen our economy, not create an environment for American businesses that leads to an uneven playing field and, at the end of the day, more uncertainty. Uncertainty does not help create jobs. To conclude, the members of the National Mediation Board have not provided Congress with any substantial evidence that a change in union voting procedures is needed. I believe this rule change is a sign of a dangerous trend--a trend that runs counter to the core principles of American democracy and the ability to choose freely through a fair voting process. As such, I urge my colleagues to support Senator Isakson's resolution, S.J. Res. 30, and vote down the National Mediation Board rule. Madam President, I yield the floor, and I suggest the absence of a quorum.

Mr. ENSIGN

Mr. ENSIGN. Well, I think her statement was shocking. It also proves she doesn't believe the second amendment codifies the preexisting natural right to self-defense. Her statement is in stark contrast with the belief of our Founders, who fervently believed that the right to keep and bear arms was a natural right. Our Founders discussed natural rights in one of the founding documents, the Declaration of Independence: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. Yet Ms. Kagan doesn't ``have a view of what are natural rights independent of the Constitution.'' The failure to recognize the natural right to self-defense as articulated by our Founders and expressed in the Bill of Rights, I believe, is deeply disturbing. The Constitution doesn't create these inalienable rights, as the Senator from Mississippi said. It recognizes and protects these rights that are considered bestowed upon us by our Creator.

Mr. ENSIGN. Mr. President, I ask my friend from South Dakota, why is it so significant that both of these groups have opposed her nomination?

Mr. ENSIGN. Mr. President, I ask the ranking member about the McDonald case, and maybe he can go into some details about the McDonald case and the significance of that when it comes to future decisions.

Mr. ENSIGN. As a matter of fact, she did teach constitutional law. I suspect that in the course of her career, she came to understand where the Founders included these words in the second amendment in the Bill of Rights: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. I don't think there was a lack of time or certainly a lack of ability to find this source material, but I suspect it may be more of her unwillingness to accept and ultimately admit that the Constitution and the second amendment run contrary to her political beliefs. I find this extremely troubling. I also think it shows this nominee's tendency to rely on her own personal beliefs and to read these into her decisions instead of the intent of the Framers of the Constitution.

Mr. ENSIGN. As a matter of fact, I was surprised. I think she did a real disservice to her prior employers, Justice Marshall, President Clinton, by not studying the history of the second amendment before she provided them with legal advice. I also think she did a disservice to her students, one that a professor of constitutional law should understand. Ms. Kagan confirmed the importance of studying founding documents when interpreting second amendment rights when she said during her Solicitor General hearing: The individual rights view and the collective rights view present cogent and sometimes powerful arguments. And I have come away thinking that immersion in the primary sources, which I have never attempted, would be necessary to choose between them with any degree of confidence. That is what she said. She confirmed this when I met with her as well. Yet the choice between the individual and collective rights view was crucial to her work for Justice Marshall in the Sandidge case and was certainly important to her work during the Clinton administration.

Mr. ENSIGN. Yes.

Mr. ENSIGN. I think my friend from South Dakota makes an excellent observation. This admission of her failure to study the history surrounding the second amendment is also in stark contrast to her emphasis on the importance of students studying international law at Harvard Law School. When Solicitor General Kagan became dean of the Harvard Law School, she spearheaded a sweeping overhaul of the academic curriculum to require law students to take an international and comparative law course during their first year. When asked, ``What specific subjects or legal trends would you like [Harvard] to reflect?'' she responded: First and foremost, international law. . . . we should be making clear to our students the great importance of knowledge about other legal systems throughout the world. For 21st century law schools, the future lies in international and comparative law, and this is what law schools today ought to be focusing on. She also said: Our goal, then, has been to . . . better equip graduates to be proactive and creative problem solvers . . . to work with a global perspective, whether the particular problem involves a local contract dispute, or an international treaty. Thanks to Dean Kagan, international law is a required course at Harvard Law School for first-year law students. However, constitutional law--U.S. constitutional law--is not only not a first-year requirement--in fact, somebody graduating from Harvard Law School can graduate without ever taking U.S. constitutional law.

Mr. ENSIGN. That is the way it appears to me. This is another example of where her personal beliefs come in to affect the way she is going to be as a judicial activist.

Mr. ENSIGN. I am glad the Senator from Alabama asked that critical question. I think it is so important for Americans, people in this body, but especially our Supreme Court Justices, to understand. We have to remember that the founding generation had just finished fighting the Revolution against a tyrannical government. They knew the true value of having an armed citizen population. Thomas Paine wrote in ``Thoughts on Defensive War'' in 1775: Arms discourage and keep the invader and plunderer in awe, and preserve order in the world, as well as property. . . . Horrid mischief would ensue were the law-abiding deprived of the use of them. Thomas Jefferson once said in a 1787 letter to William Smith: And what country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms. . . . Patrick Henry said: Are we at last brought to such an humiliating and debasing degradation that we cannot be trusted with arms for our own defense? Where is the difference between having our arms under our own possession and under our own direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands? In fact, if you only take a cursory look at the 20th century, every single government that has perpetrated genocide has first disarmed its citizens. It is my understanding that every known dictator who has come to power has followed this course.

Mr. ENSIGN. I know that our Founders certainly looked at writings of prominent philosophers when debating the importance of the right to keep and bear arms. William Blackstone, whom the Supreme Court has called the ``preeminent authority on English law for the founding generation,'' cited the right to keep and bear arms as ``one of the fundamental rights of Englishmen,'' calling it ``the natural right of resistance and self-preservation--the right of having and using arms for self- preservation and defense.'' Judge St. George Tucker, who wrote the first commentary on the Constitution in 1803, describes the second amendment as ``the true palladium of liberty.'' He continued: The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. Judge Tucker also said: If, for example, a law passed by congress, prohibiting the free exercise of religion . . . or abridging the freedom of speech, or of the press; or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases be the province of the judiciary to pronounce whether any such act were constitutional. . . . The judiciary, therefore, is the department of the government to whom the protection of the rights of the individual is by the constitution especially, confided, interposing its shield between him and the sword of usurped authority, the darts of oppression, and the safety of faction and violence. I would like to ask my colleague from Mississippi, what did Ms. Kagan say about this natural right of self-defense?

Mr. ENSIGN. In the McDonald case, as I understand, there were several restrictions put on citizens when it came to their second amendment right: paying a $100 processing fee and a $15 fee for each gun registered; undergo and pass a firearms safety test which consists of 4 hours of training and 1 hour target range practice, which, by the way, costs about $100 for each one of those activities; undergo and pass a vision test, if you do not have an Illinois driver's license; provide fingerprints; be at least 21 years of age or 18 years with parents' permission; wait 45-120 days for processing; own only one operational firearm; and reregister every 3 years. I ask the ranking member, why are these restrictions necessary?

Mr. ENSIGN. I will add, concluding my remarks, that this issue is of critical importance. Without the second amendment, the rest of the Bill of Rights can go away. That is what our Founders recognized. Our colleagues, before they vote on Solicitor General Kagan, need to understand that. That is why this colloquy is so important today. We have brought out some very important points. It was an honor to be with my colleagues to discuss Solicitor General Kagan's views on the second amendment and how that potentially could impact her decisions in the future.