Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. I rise to draw the Senate's attention to events in Zimbabwe, where a continuing political and economic crisis is devastating the country and threatening the future of the southern African region. A combination of corruption at the highest levels of government, political desperation leading to ill-conceived economic and agricultural policies implemented in chaotic fashion, and severe political repression have brought the country to its knees. Already devastated by the HIV/AIDS pandemic, Zimbabwe is now gripped by a food crisis--one in large part caused by the government's policies. Nearly 40 percent of Zimbabweans are malnourished. This in a country that used to be a net exporter of food to the region. Members of Zimbabwe's ruling party and their cronies have led their own country to ruin--even starvation--in order to manipulate the population and retain power. We are talking about a government that tortures independent journalists, beats respected civil society leaders who have testified before Congress, murders opposition supporters, and recently even arrested and detained a U.S. diplomat. Last week, President Bush signed an executive order freezing the assets of 77 Zimbabwean individuals responsible for this repression and abuse, and prohibiting Americans from having business dealings with them. This is a step many of us in Congress had been anticipating for some time. Just last month I asked Secretary of State Powell about the status of the asset freeze, and more recently I spoke with the President's National Security Advisor, Dr. Condoleezza Rice, about this matter. I am glad the delay is over, and I commend the President for taking this step. I was recently in Botswana and South Africa, and it is clear the consequences of the crisis are spilling over into other parts of the southern African region. Zimbabweans desperate to escape are spilling across borders. Foreign investors are nervous about engagement in the region. And the muted reaction of other African leaders is calling into question their commitment to the basic principles so critical to the development of the region. I also commend the President and the administration for making it clear that the U.S. condemnation of the Zimbabwean government has nothing to do with race, and everything to do with basic principles like the rule of law, democratic governance, and freedom of expression. As the ranking member of the Subcommittee on African Affairs, I look forward to continuing to work with the administration, with colleagues on both sides of the aisle, with African leaders, and with the many brave and capable Zimbabweans who are working to stop Zimbabwe's decline into disorder and to realize the potential of the Zimbabwean people.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise to take note of International Women's Day, which people around the world commemorated last Saturday. For nearly a century, women's groups worldwide have paused on March 8 to celebrate the achievements and contributions of women in all fields of human endeavor throughout our history. It is a special occasion to remember the progress women have made and to reflect upon the injustices and hardships they still face. When I arrive here a decade ago, there were only six women in the Senate, and four of them had just come in with me in the Class of `92. Today there are 14. Of the 18 women who have ever been elected to a full term in the Senate, 13 are here now. There are now 62 women in the House of Representatives--the most ever. And Nancy Pelosi recently became the first woman ever chosen to lead a majority party in the Congress. Around the world, at latest count, almost 500 million people live in countries with female elected heads of government. These are encouraging signs that we are making progress toward achieving full equality for women in the political realm. But even after the great advances of the past decade, women, who are more than half the electorate, account for only 14 percent of each House of the U.S. Congress. This is just one example of how, in so many areas, we still have a long way to go. Women have made tremendous strides in the last century. In the United States today, more women than ever are attending college and earning post-graduate degrees. More women are entering the workforce and starting their own companies. But although equal pay for equal work has been the law of the land since 1963, on average, women still earn substantially less than men. Wage discrimination persists, costing families thousands of dollars each year. I am proud to support legislative efforts to correct this discrepancy. While many women are going to work, many have to sacrifice time spent with their children in order to afford child care, education, and health care for their kids. Too often, women and children fall through the cracks of our system. Violence against women is still all too prevalent in our country. Domestic violence is the leading cause of injury among women of child-bearing age. One out of every six American women has been a victim of a rape or an attempted rape. Many rapes go unreported. Only recently have States begun to recognize crimes such as stalking or marital rape. Outside the United States, the situation for women is often far starker. Last year, the world came to understand the brutal treatment of Afghan women under the reign of the Taliban. Unfortunately, the Taliban regime was just an extreme example of the kinds of repression and denial of basic freedoms that women face in much of the developing world. Women in many places are denied such basic rights as owning property. They are more likely to live in poverty, suffer from malnutrition, and lack access to education. Despite the expansion of women's health care research and practices in the last two decades, women still have unequal access to these services. Such policies are not only unjust, they are unwise. Numerous studies have shown that one of the best investments a developing society can make is educating its girls. In societies where women are literate, infant mortality is lower and children are healthier and better fed. ``Women are critical players in ensuring household food security and nutrition,'' according to the International Fund for Agricultural Development. ``Increasing the economic resilience of the poor is largely about enabling women to realize their socio-economic potential more fully and improve the quality of their lives. To do so, women need access to assets, services, knowledge and technologies, and must be active in decision-making processes.'' This is important to keep in mind as we grapple this year with food crises in Africa and elsewhere. As we contemplate going to war with Iraq, we should bear in mind that women often suffer more than men from armed conflict. Women and girls are among those most affected by the violence, economic instability, and displacement associated with warfare, and they frequently are threatened by rape and sexual exploitation, whether at home, in flight, or in refugee camps. Rape and sexual assault have often been used as weapons of war. The U.N. Security Council passed a resolution on Women, Peace and Security in 2000. Yet the deliberate killing, rape, mutilation, forced displacement, abduction, trafficking, and torture of women and girls continue unabated in contemporary armed conflicts, according to UNIFEM. Although it is usually men who go off to war, women often bear much of the burden. It is therefore crucial that women be active and respected participants in peace-building and reconstruction. In peacetime as well, women are often victims of domestic violence and illegal trafficking for slavery and prostitution. In some countries, women fall victim to ``honor killings,'' a deplorable practice whereby women are murdered by male relatives for actions that are perceived to bring dishonor to the family. The Senate will likely soon be considering landmark legislation to deal with the global problem of HIV/AIDS, which I hope to be able to support. Here again, women must be at the center of our deliberations. Statistics compiled by UNAIDS show that both the spread and impact of HIV and AIDS disproportionately affect women and adolescent girls who are socially, culturally, biologically, and economically more vulnerable. In 1997, 41 percent of HIV-infected adults worldwide were women. In the latest report, they accounted for half. In North Africa and the Middle East, 54 percent of HIV-positive adults are women; in the Caribbean, 52 percent are. U.N. experts believe that women's empowerment is one of the only AIDS vaccines available today in most of the world, and that gender equality should be a guiding principle in the fight against HIV/AIDS. I have had the opportunity to travel to numerous countries in Africa and see firsthand the devastating toll that HIV/AIDS and other infectious diseases are taking on the people of that continent. Young women are especially at risk. The United Nations reports that in Africa girls aged 15 to 19 are infected with HIV at a rate of 15 to 23 percent, whereas infection rates among boys of the same age group are 3 to 4 percent. Mr. President, the protection of women's rights is vital to the success of promoting fundamental human rights. The Senate can work towards protecting women's rights and improve the status of women domestically and internationally by acting upon the United Nations Convention on the Elimination of Discrimination against Women, or CEDAW. CEDAW is the most comprehensive treaty on women's human rights, addressing almost all forms or discrimination in areas such as education, employment, marriage and family, health care, politics, and law. It has been over two decades since the United States signed this treaty, and it still awaits consideration before the Senate. Once again, I urge the Committee on Foreign Relations to take up this treaty and finally allow the Senate the opportunity to offer its advice and consent. In conclusion, as we honor women everywhere and celebrate their accomplishments and contributions to history, we must recognize that there is still more to be done in the struggle for gender equity. Discrimination and violence against women still exist here at home and abroad. The United States and the rest of the international community must reaffirm their commitment to promote gender equality and human rights around the world.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today, with great admiration and as a proud alumnus, I congratulate the University of Wisconsin in Madison men's basketball team for their victory over the University of Illinois this week. This victory allowed the Badgers to claim the Big Ten conference title outright for the first time since 1947. As a lifelong Badger, I am proud of their accomplishment and I look forward to their play in the postseason. In this, the 105th season of men's basketball at UW-Madison, the players and the coaching staff won their first consecutive conference crown since the 1923 and 1924 seasons. For the second year in a row, Badger basketball has made the people in Madison and around Wisconsin and the country proud to be Badgers. With this win, Coach Bo Ryan becomes only the third coach in Big Ten history to win titles in his first two seasons as coach. With this championship, UW-Madison continues its long tradition of dominance in Big Ten athletics. As a graduate of UW-Madison, I take great pride in commending our men's basketball team, and I wish Coach Ryan and his Badger team all the best in postseason play. Wisconsin is behind you, and we wish you all the luck. Go Badgers.

Mr. FEINGOLD

Mr. FEINGOLD. I compliment the Senator from Michigan for his tremendous leadership on this issue. I rise today to add my thoughts to the debate on the first arms control treaty between the United States and Russia during the 21st century, and to offer an amendment that will reaffirm the role of the Senate in the treaty extension and withdrawal process. When the Senate adopts this resolution of ratification, as I expect that it will be a wide margin, the Moscow Treaty will be on its way to becoming the law of the land, and the Senate will have fulfilled its constitutional responsibility to provide advice and consent to its ratification. As a member of the Foreign Relations Committee, I believe that we covered a lot of ground in the series of hearings that the Committee had to examine this brief, 3-page document last year, and that we explored a number of the concerns that I and a number of members of the Committee and of the Senate have regarding the issues of compliance and verification, the lack of a timetable for the reductions required by the treaty, the fact that this treaty does not require that any nuclear warheads actually be destroyed, and a number of other important issues. I continue to be troubled by the language contained in article IV of the Moscow Treaty regarding the process by which one of the Parties may withdraw from this treaty. I am concerned that either of the Parties would be able to withdraw with only 3 months' written notice and without a reason. And unlike other arms control treaties, the Moscow Treaty does not require that the Parties cite ``supreme national interest'' upon announcing withdrawal. In fact, this concept is not even mentioned in article IV. As my colleagues may recall, I found the President's decision to unilaterally withdraw the United States from the 1972 Anti-Ballistic Missile Treaty last year troubling on both policy and constitutional grounds. I discussed this issue at some length with Secretaries Powell and Rumsfeld during the Foreign Relations Committee's hearings on this treaty last year, and I am troubled by the administration's contention that consultation with and approval by the Senate would not be required to withdraw from the Moscow Treaty. I agree with the Senator from Michigan. The Senate has a constitutional role to play in treaty withdrawal, and I am concerned that the administration is not taking seriously our role in this process. While I recognize that Declaration (6) in the resolution before the Senate today urges the President to consult with this body prior to withdrawing from the Moscow Treaty, I am concerned that there is no specific requirement for such consultation. So, Mr. President, I send a second-degree amendment to the desk and I ask for its immediate consideration.

Mr. FEINGOLD. I ask unanimous consent that reading of the amendment be dispensed with.

Mr. FEINGOLD. Mr. President, the second-degree amendment that I offer today would add to the underlying Levin amendment a provision that would require the President to obtain the approval of two-thirds of the Senate before withdrawing from or extending this treaty. Mr. President, Article II, Section 2 of the Constitution states that the President ``shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided that two thirds of the Senators present concur. . . .'' The Senator from Michigan pointed out in his remarks that the Constitution is silent on the process by which the United States can withdraw from a treaty, and the record in the Congress and the executive branch is mixed. However, I believe and I think many others believe the intent of the Framers as explained by Thomas Jefferson is clear. In section 52 of Jefferson's Manual, he writes: Treaties are legislative acts. A treaty is the law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation. Article II, Section 3 of the Constitution states that the President shall: take Care that the laws be faithfully executed. . . . Jefferson continues: Treaties being declared, equally with the laws of the United States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded. This was accordingly the process adopted in the case of France in 1798. It is worth noting, that four signers of the Constitution were serving in Congress when this first treaty termination occurred--by an Act of Congress--in 1798, just 11 years after the Constitutional Convention. It is clear to me, as it was to Thomas Jefferson, that the Senate has a constitutional role to play in terminating treaties. Since the advice and consent of the Senate is required to enter into a treaty, this body should at a minimum be consulted before the President makes the decision to withdraw this country from a treaty, and especially from a treaty of this magnitude. As Jefferson noted, a treaty is equal with a law. A law cannot be declared to be repealed by the President alone. Only an Act of Congress can repeal a law. Action by the Senate or the Congress should be required to terminate a treaty. Anything less could tip the scale dangerously in favor of the executive branch. That said, I recognize it is unlikely that my amendment would be adopted, or that the President would agree to move forward with this process if my amendment were included in this resolution of ratification, but I very much thought we ought to make this point on the floor of this body that is charged by the Constitution with this responsibility. It is a responsibility which I believe was intended by the Founders, that we act specifically with a two-thirds vote to withdraw from a treaty. Amendment No. 253 To Amendment No. 252, Withdrawn In light of the reality here, I now withdraw my amendment.

Mr. FEINGOLD. Mr. President, I regret that this Treaty will move forward without a requirement for a Senate vote on its abrogation or extension, but I do express my support for the amendment offered by the Senator from Michigan, Mr. Levin, of which I am pleased to be a cosponsor. I also want to thank the Senator for his work on this important issue. The Levin amendment is consistent with my view that the Senate should--at a minimum--be consulted if the President decides to withdraw from or extend this treaty in the future. I believe that this is a step in the right direction, and I urge my colleagues to support the Levin amendment. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I am pleased today to show my support for the Milk Import Tariff Equity Act of 2003 by being an original cosponsor of Senator Craig's bill. This legislation will prevent foreign dairy products from continuing to circumvent U.S. trade laws. Currently, milk protein concentrate, MPC, is not subject to the same quotas required of other dairy products. Foreign dairy producers have begun exploiting this loophole by blending previously processed dairy proteins with nonfat dry milk to boost its protein content so that it qualifies as milk protein concentrate. This allows the milk protein concentrate to circumvent any laws that would subject the imports to tariff rate quotas. The result has been a flood of foreign dairy blends being imported in the U.S. market, displacing sales of domestic dairy products and lowering prices for American dairy farmers. As milk prices are at historic lows, down about 38 percent from prices last year, this flood of foreign dairy products has put a strain on many of the dairy farmers in my State of Wisconsin. Since many of the blended products imported into this country are heavily subsidized, American farmers are forced to compete on an unfair playing field. This loophole in our tariff schedule allows certain heavily subsidized foreign dairy products nearly unfettered access to our dairy markets, hurting the American dairy farmers. As I travel across Wisconsin, I have heard from any dairy farmers who are struggling to stay in business. Many of these farmers are concerned about the flood of unfair imports that are hurting our American dairy markets. In March of 2001, the General Accounting Office, GAO, released a report that highlighted the increase of milk protein concentrates coming into this country under outdated trade laws. The report pointed to a loophole in our trade laws that has resulted in increased imports of blended dairy proteins. The importing of blended dairy proteins is being done solely for the purpose of avoiding the U.S. tariff rate quota for nonfat dry milk. The GAO study determined that MPC imports surged by more than 600 percent in the six years before the report was released. MPC imports lower prices for U.S. dairy farmers by displacing sales of domestic dairy products. Since I have received the results from the General Accounting Office study that reported this loophole in U.S. trade laws, I have participated in a bipartisan effort to amend this loophole, so that we may protect our dairy farmers from unfair trade practices and help them in the struggle to farm on such an unfair playing field. This bill would close this loophole by regulating milk protein concentrate imports in the same manner all other dairy import products are regulated. It would correct a loophole that exists in U.S. trade law that is contributing to such low dairy prices experienced in my state of Wisconsin and across the Nation. This loophole depresses the price of milk for farmers, costs U.S. taxpayers money, and gives foreign dairy producers an unfair advantage over our own dairy farmers. It is time for this Congress to stand behind our farmers and that is why I support the Milk Import Tariff Equity Act of 2003.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I am pleased today to show my support for the Milk Import Tariff Equity Act of 2003 by being an original cosponsor of Senator Craig's bill. This legislation will prevent foreign dairy products from continuing to circumvent U.S. trade laws. Currently, milk protein concentrate, MPC, is not subject to the same quotas required of other dairy products. Foreign dairy producers have begun exploiting this loophole by blending previously processed dairy proteins with nonfat dry milk to boost its protein content so that it qualifies as milk protein concentrate. This allows the milk protein concentrate to circumvent any laws that would subject the imports to tariff rate quotas. The result has been a flood of foreign dairy blends being imported in the U.S. market, displacing sales of domestic dairy products and lowering prices for American dairy farmers. As milk prices are at historic lows, down about 38 percent from prices last year, this flood of foreign dairy products has put a strain on many of the dairy farmers in my State of Wisconsin. Since many of the blended products imported into this country are heavily subsidized, American farmers are forced to compete on an unfair playing field. This loophole in our tariff schedule allows certain heavily subsidized foreign dairy products nearly unfettered access to our dairy markets, hurting the American dairy farmers. As I travel across Wisconsin, I have heard from any dairy farmers who are struggling to stay in business. Many of these farmers are concerned about the flood of unfair imports that are hurting our American dairy markets. In March of 2001, the General Accounting Office, GAO, released a report that highlighted the increase of milk protein concentrates coming into this country under outdated trade laws. The report pointed to a loophole in our trade laws that has resulted in increased imports of blended dairy proteins. The importing of blended dairy proteins is being done solely for the purpose of avoiding the U.S. tariff rate quota for nonfat dry milk. The GAO study determined that MPC imports surged by more than 600 percent in the six years before the report was released. MPC imports lower prices for U.S. dairy farmers by displacing sales of domestic dairy products. Since I have received the results from the General Accounting Office study that reported this loophole in U.S. trade laws, I have participated in a bipartisan effort to amend this loophole, so that we may protect our dairy farmers from unfair trade practices and help them in the struggle to farm on such an unfair playing field. This bill would close this loophole by regulating milk protein concentrate imports in the same manner all other dairy import products are regulated. It would correct a loophole that exists in U.S. trade law that is contributing to such low dairy prices experienced in my state of Wisconsin and across the Nation. This loophole depresses the price of milk for farmers, costs U.S. taxpayers money, and gives foreign dairy producers an unfair advantage over our own dairy farmers. It is time for this Congress to stand behind our farmers and that is why I support the Milk Import Tariff Equity Act of 2003.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent that editorials concerning the Estrada nomination from the Portland Oregonian, the Omaha World, and the Los Angeles Times, and an article on the same topic by Chris Mooney that appeared in TomPaine.com, be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, I want to speak briefly on the clear violation of Judiciary Committee rules that occurred last week in our executive business meeting. It was a sad moment for our committee and does not bode well for the harmonious functioning of the committee this year. I believe that a discussion of this issue is also relevant to our debate of Miguel Estrada. In both cases we are talking about rules that protect the rights of the minority in this body from being run over by the majority. And in both cases we are talking about the use of those protections by the minority not to stonewall or block action by the majority indefinitely but to seek information about nominees that has not been forthcoming. Let me quickly review the background of what happened last Thursday. All of this goes back, of course, to our duty under Article II, Section 2 of the Constitution, which specifically provides that the President shall appoint judges to our courts ``by and with the Advice and Consent of the Senate.'' The Senate's role is not just a matter of historical tradition, or comity with the Executive Branch, it is constitutionally mandated. All of us on the Judiciary Committee, and in the full Senate take this responsibility very seriously. One of the ways that we exercise our constitutional responsibilities in this area, on behalf of the Senate and our colleagues who are not on the committee, is to closely examine the records of judicial nominees. We do that in part by holding hearings so that nominees can be questioned about their records, their judicial philosophy, their previous writings, their judicial opinions if they are currently or have been judges on other courts, and their views on legal issues. These hearings are not a mere formality, they are crucial to the role of the Judiciary Committee in carrying out the Senate's constitutionally mandated responsibilities. This year, it appears that there is an effort underway to push through nominations in the shortest possible time. Prior to the President's Day recess, the committee held three nominations hearings in three weeks. By February 12, the committee had held hearings on five circuit court nominees. This is an extraordinary pace, particularly when you consider that the earliest that the committee had held hearings on five circuit court court nominees during President Clinton's term was April 29. In some years, that milestone wasn't passed until June, July, or even September, and in 1996, the committee never held a hearing on a 5th nominee to the circuit courts. So this effort really gives the impression of a forced march. Our constitutional responsibilities are being subjugated to a schedule that seems to be aimed at forcing nominations through as quickly as possible, without regard to the Senate's prerogatives. The Democrats on the committee have not tried to block all of the nominees. We voted on Miguel Estrada, and Jeffrey Sutton, and Jay Bybee in the ordinary course of business on the committee. But when it came to two other nominees, Justice Deborah Cook, a nominee for the Sixth Circuit and John Roberts, nominated to the D.C. Circuit, we tried to draw a line. The reason we made that effort was that Justice Cook and Mr. Roberts were both considered in a single hearing on January 29th, along with Jeffrey Sutton, who was reported to the floor just prior to the recess. Actually, it is misleading to say they were considered in that hearing. They were all sitting at the witness table, but the vast majority of the questioning was directed to Mr. Sutton. There simply was not sufficient time for members of this committee to examine the other nominees. A number of Senators asked repeatedly that further hearings be scheduled so that Senators could examine Justice Cook and Mr. Roberts. We even made the offer to have a single additional hearing for these two important nominees, even though we would prefer to examine a single controversial nominee at a time. We were rebuffed at every turn, even when it became abundantly clear that the single hearing would not suffice to let members of this committee examine the records of all of these nominees. The single hearing that was held on January 29, 2003, on these three nominees was unprecedented. Never before has the committee held one hearing on three circuit court nominations over the objections of the minority. Indeed, it is highly unusual for the committee to hold a single hearing on even two controversial nominees, as a 1985 agreement among Senators Dole, Byrd, Thurmond, and Biden demonstrates. That agreement was that only one controversial nomination would be considered at a time. It gave the minority some control over the pace of nominations, without of course giving it any kind of veto. A number of Democrats on the committee raised the need for an additional hearing on Justice Cook and Mr. Roberts publicly during the hearing and privately during the breaks. We have repeated that request to the chairman of the committee on many occasions subsequently. Early last week, when it become clear that the chairman would not schedule a second hearing so that Justice Cook and Mr. Roberts could receive proper consideration by the committee, we tried another approach. The nominees had said they are available to meet with us to answer any questions we have. So we sent a letter to the White House and requested that the two nominees make themselves available for a meeting to answer further questions. In order to be able to proceed quickly in the committee following such a meeting, we suggested a joint meeting that Senators could attend at different times based on their individual schedules. We stated that we would have a transcript of the meeting prepared so that we could refer back to the nominees' answers, and that the meeting would be open to the public. The response from the White House, which has repeatedly offered to have nominees meet with us privately was an immediate ``No.'' The immediate and unqualified refusal to our reasonable request seem to be part of the forced march. The Administration seems to be saying, ``We are to going to jam these nominees through, our way, regardless of how reasonable your request is.'' So that left us with only one option: To delay the vote on these two nominees until agreement could be reached on a further hearing, or some substitute for it. Some Senators on the Democratic side were simply not prepared to vote on Justice Cook or Mr. Roberts. We did not believe the committee has been given adequate opportunity to assess the qualifications and examine the record of Justice Cook and Mr. Roberts. So when the chairman of the committee asked for a vote on Justice Cook, we objected. The proper course under our committee's longstanding Rule IV was for the chairman to hold a vote on a motion to end debate on the matter. The Rule provides that debate will be ended if that motion carries by a majority vote, including one member of the minority. In this case, our side was united in opposing ending the debate, so the motion would have failed. It is, in effect, as the chairman of the committee himself recognized in 1997 when the Rule was invoked in connection with the Bill Lann Lee nomination, a kind of filibuster rule in the committee. The vote to end debate is like a cloture vote, and it cannot succeed unless at least one member of the minority votes for it. Now I have heard the argument, made by the chairman of the committee in a letter to the Democratic leader, that this rule was designed to allow a majority of the committee to force a so-called ``rogue chairman'' to hold a vote on a matter when he doesn't want to, but not to limit the chairman's ability to call for a vote over the objections of the minority. That is clearly an erroneous interpretation. It conflicts with text of the rule, the practice of the committee for 24 years under five separate chairmen, including the current chairman, and with the history of the rule itself. The rule was adopted in 1979 when Senator Kennedy chaired the committee. The committee at that time had 10 Democrats and 7 Republicans. Until that time there was no way to end debate in the committee. Recent years had seen controversial matters such as the Equal Rights Amendment stalled in committee. The Civil Rights era had seen the committee headed by a segregationist chairman block civil rights legislation by allowing it to be filibustered and never voted on. Chairman Kennedy sought a new committee rule to allow him to bring a matter to a vote. His original proposal was simply to let a majority vote of the committee end debate. On January 24, 1979, he proposed such a committee rule. Republicans on the committee, including Senator Thurmond who was the ranking member, and Senators Simpson, Dole, Cochran, and Hatch, spoke up to protest that the minority should retain the right to debate a matter for as long as it felt it needed to. The next week, the committee reached agreement and adopted Rule IV, which has been in effect ever since. The compromise ended the ability of one or a few Senators to tie up the committee indefinitely. But it gave the majority the power to end debate if it could convince one member of the minority to agree. That was the compromise reached, and that is the rule we have had for over two decades. The chairman's argument that the rule places no limit on his ability to end debate is clearly answered by this history. It is clearly wrong. The committee rule was violated when Justice Cook and Mr. Roberts were reported over the objection of some members without a ``cloture vote'' in the committee. There is simply no question about this. It is very disappointing to have to discuss and debate committee rules on the floor of this body. This might seem like a petty matter. But it isn't. Honoring the rules of the Senate and the rules of the committees gives credibility and legitimacy to the work we do here. Rules are the hallmark of a democracy. In many ways our rules are analogous to the rule of law in our society. We have to respect those rules or we have nothing left. In situations like these, I often think of the words of the great philosopher Sir Thomas More as portrayed in the play ``A Man for All Seasons.'' More questions a man named Roper whether he would level the forest of English laws to punish the Devil. ``What would you do?'' More asks, ``Cut a great road through the law to get after the Devil?'' Roper affirms, ``I'd cut down every law in England to do that.'' To which More replies: And when the last law was down, and the Devil turned round on you--where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast . . . and if you cut them down . . . d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake. It is clear from the history of Rule IV that it was insisted on by Republican Senators then in the minority to preserve their rights in committee. They should not cut down that forest just to have their way now that they are in the majority. We cannot permit that kind of results-oriented approach to the rules of the committee or of this body. The rules of this body, like the laws of this country, protect all of us. We must stand up to efforts to ignore them. What happened in the committee last week did not reflect well on this body. I sincerely hope that the chairman will reconsider his rulings and return some comity to our proceedings. Let me just finally say that I voted Present on both Justice Cook and Mr. Roberts. I have not made a final decision on their nominations. I could very well support one or both of them here on the floor. But I think the committee must hold a proper hearing on them, giving all Senators a better opportunity to be well informed on these nominees before exercising their constitutional responsibilities.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I am introducing important legislation to affirm Federal jurisdiction over the waters of the United States. I am pleased to have three members of the Environment and Public Works Committee, the Senator from California, Mrs. Boxer, the Senator from Vermont, Mr. Jeffords, and the Senator from Connecticut, Mr. Lieberman, as original cosponsors of this bill. In the U.S. Supreme Court's January 2001 decision, Solid Waste Agency of Northern Cook County versus the Army Corps of Engineers, a 5 to 4 majority limited the authority of Federal agencies to use the so-called migratory bird rule as the basis for asserting Clean Water Act jurisdiction over non-navigable, intrastate, isolated wetlands, streams, ponds, and other bodies of water. This decision, known as the SWANCC decision, means that the Environmental Protection Agency and Army Corps of Engineers can no longer enforce Federal Clean Water Act protection mechanisms to protect a waterway solely on the basis that it is used as habitat for migratory birds. In its discussion of the case, the Court went beyond the issue of the migratory bird rule and questioned whether Congress intended the Clean Water Act to provide protection for isolated ponds, streams, wetlands and other waters, as it had been interpreted to provide for most of the last 30 years. While not the legal holding of the case, the Court's discussion has resulted in a wide variety of interpretations by EPA and Corps officials that jeopardize protection for wetlands, and other waters. The wetlands at risk include prairie potholes and bogs, familiar to many in Wisconsin, and many other types of wetlands. In effect, the Court's decision removed much of the Clean Water Act protection for between 30 percent to 60 percent of the Nation's wetlands. An estimate from my home state of Wisconsin suggested that more than 60 percent of the wetlands in my state lost federal protection. Wisconsin is not alone. The National Association of State Wetland Managers has been collecting data from states across the country. For example, Nebraska estimates that it will lose protection for more than 40 percent of its wetlands. Indiana estimates they will lose 31 percent of total wetland acreage and 74 percent of the total number of wetlands. Delaware estimates the loss of protection for 33 percent or more of their freshwater wetlands. These wetlands absorb floodwaters, prevent pollution from reaching our rivers and streams, and provide crucial habitat for most of the nations ducks and other waterfowl, as well as hundreds of other bird, fish, shellfish and amphibian species. Loss of these waters would have a devastating effect on our environment. In addition, by narrowing the water and wetland areas subject to Federal regulation, the decision also shifts more of the economic burden for regulating wetlands to State and local governments. My home State of Wisconsin has passed legislation to assume the regulation of isolated waters, but many other States have not. This patchwork of regulation means that the standards for protection of wetlands nationwide is unclear, confusing, and jeopardizes the migratory birds and other wildlife that depend on these wetlands. Since 2001, the confusion over the interpretation of the SWANCC decision is growing. On January 15, 2003, the EPA and Army Corps of Engineers published in the Federal Register an Advanced Notice of Proposed Rulemaking raising questions about the jurisdiction of the Clean Water Act. Simultaneously, they released a guidance memo to their field staff regarding Clean Water Act jurisdiction. The agencies claim these actions are necessary because of the SWANCC case. But both the guidance memo and the proposed rulemaking go far beyond the holding in SWANCC. The guidance took effect right away and has had an immediate impact. It tells the Corps and EPA staff to stop asserting jurisdiction over isolated waters without first obtaining permission from headquarters. Based on this guidance, waters that the EPA and Corps judge to be outside the Clean Water Act can be filled, dredged, and polluted without a permit or any other long-standing Clean Water Act safeguard. The rulemaking announces the Administration's intention to consider even broader changes to Clean Water Act coverage for our waters. Specifically, the agencies are questioning whether there is any basis for asserting Clean Water Act jurisdiction over additional waters, like intermittent streams. The possibility for a redefinition of our waters is troubling because there is only one definition of the term ``water'' in the Clean Water Act. The wetlands program, the point source program which stops the dumping of pollution, and the non-point program governing polluted runoff all depend on this definition. If we don't protect a category of waters from being filled under the wetlands program, we also fail to protect them from having trash or raw sewage dumped in them, or having other activities that violate the Clean Water Act conducted in them as well. Congress needs to re-establish the common understanding of the Clean Water Act's jurisdiction to protect all waters of the U.S.--the understanding that Congress held when the Act was adopted in 1972--as reflected in the law, legislative history, and longstanding regulations, practice, and judicial interpretations prior to the SWANCC decision. The proposed legislation does three things, and it is a very simple bill. It adopts a statutory definition of ``waters of the United States'' based on a longstanding definition of waters in the EPA and Corps of Engineers' regulations. Second, it deletes the term navigable from the Act to clarify that Congress's primary concern in 1972 was to protect the nation's waters from pollution, rather than just sustain the navigability of waterways, and to reinforce that original intent. Finally, it includes a set of findings that explain the factual basis for Congress to assert its constitutional authority over waters and wetlands on all relevant Constitutional grounds, including the Commerce Clause, the Property Clause, the Treaty Clause, and Necessary and Proper Clause. In conclusion, I am very pleased to have the support of so many environmental and conservation groups, and well as organizations that represent those who regulate and manage our country's wetlands, such as: the Natural Resources Defense Council, Earthjustice, the National Wildlife Federation, Sierra Club, American Rivers, the National Audubon Society, U.S. Public Interest Research Group, Defenders of Wildlife, the Ocean Conservancy, Trout Unlimited, the Izaac Walton League, and the Association of State Floodplain Managers. They know, as I do, that we need to re-affirm the federal government's role in protecting our water. This legislation is a first step in doing just that. I ask unanimous consent that the text of the legislation be printed in the Record.

Mr. FEINGOLD. Mr. President, I rise today to introduce legislation on behalf of Wisconsin's seniors and taxpayers whose wallets are being gauged by certain pharmaceutical companies. My legislation is in response to certain pharmaceutical companies' decision to target seniors who are crossing into Canada to get more affordable prescription drugs for their own use. If these pharmaceutical companies are going to price gauge seniors's wallets, they don't deserve the taxpayers' support. A growing number of American seniors are obtaining their prescription drugs from Canada for personal use. Unfortunately, many of these seniors who are crossing the boarder to access more affordable prescription drugs for their personal use are being targeted by the very pharmaceutical companies that receive millions in tax breaks. I recently received a call from seniors in my state that Glaxo Smith Klein had decided to stop supplying Canadian pharmacies that resell its drugs to Americans, thereby preventing them from receiving the same benefits these pharmacies provide to Canadians. The Seniors in my State were not the only ones who took notice of this action. On February 21st of this month, Seniors groups from 12 States, including Wisconsin, sent Glaxo a message by launching a boycott of nonprescription products of Glaxo-Smith-Kline. Congress should also send all pharmaceutical companies a message that this practice simply is unacceptable. I think the single most important step we can take is to modernize Medicare and make it better is to eliminate the current inequities in the Medicare system and provide the prescription drug coverage senior citizens need. At the same time Congress should pass legislation, that Senators Schumer, McCain, and I introduced that would bring lower-cost generic drugs to the market faster and lower the cost of prescription drugs by $60 billion. Until we pass a comprehensive prescription drug benefit, we must ensure that seniors are not targeted by pharmaceutical companies. If these drug companies actively discriminate against American seniors, we should not provide them tax breaks. That's why my legislation would deny tax breaks to drug companies who discriminate against Canadian pharmacies that provide Americans the same discount that they provide to Canadians. I urge my colleagues to join me in cosponsoring this legislation.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I am introducing important legislation to affirm Federal jurisdiction over the waters of the United States. I am pleased to have three members of the Environment and Public Works Committee, the Senator from California, Mrs. Boxer, the Senator from Vermont, Mr. Jeffords, and the Senator from Connecticut, Mr. Lieberman, as original cosponsors of this bill. In the U.S. Supreme Court's January 2001 decision, Solid Waste Agency of Northern Cook County versus the Army Corps of Engineers, a 5 to 4 majority limited the authority of Federal agencies to use the so-called migratory bird rule as the basis for asserting Clean Water Act jurisdiction over non-navigable, intrastate, isolated wetlands, streams, ponds, and other bodies of water. This decision, known as the SWANCC decision, means that the Environmental Protection Agency and Army Corps of Engineers can no longer enforce Federal Clean Water Act protection mechanisms to protect a waterway solely on the basis that it is used as habitat for migratory birds. In its discussion of the case, the Court went beyond the issue of the migratory bird rule and questioned whether Congress intended the Clean Water Act to provide protection for isolated ponds, streams, wetlands and other waters, as it had been interpreted to provide for most of the last 30 years. While not the legal holding of the case, the Court's discussion has resulted in a wide variety of interpretations by EPA and Corps officials that jeopardize protection for wetlands, and other waters. The wetlands at risk include prairie potholes and bogs, familiar to many in Wisconsin, and many other types of wetlands. In effect, the Court's decision removed much of the Clean Water Act protection for between 30 percent to 60 percent of the Nation's wetlands. An estimate from my home state of Wisconsin suggested that more than 60 percent of the wetlands in my state lost federal protection. Wisconsin is not alone. The National Association of State Wetland Managers has been collecting data from states across the country. For example, Nebraska estimates that it will lose protection for more than 40 percent of its wetlands. Indiana estimates they will lose 31 percent of total wetland acreage and 74 percent of the total number of wetlands. Delaware estimates the loss of protection for 33 percent or more of their freshwater wetlands. These wetlands absorb floodwaters, prevent pollution from reaching our rivers and streams, and provide crucial habitat for most of the nations ducks and other waterfowl, as well as hundreds of other bird, fish, shellfish and amphibian species. Loss of these waters would have a devastating effect on our environment. In addition, by narrowing the water and wetland areas subject to Federal regulation, the decision also shifts more of the economic burden for regulating wetlands to State and local governments. My home State of Wisconsin has passed legislation to assume the regulation of isolated waters, but many other States have not. This patchwork of regulation means that the standards for protection of wetlands nationwide is unclear, confusing, and jeopardizes the migratory birds and other wildlife that depend on these wetlands. Since 2001, the confusion over the interpretation of the SWANCC decision is growing. On January 15, 2003, the EPA and Army Corps of Engineers published in the Federal Register an Advanced Notice of Proposed Rulemaking raising questions about the jurisdiction of the Clean Water Act. Simultaneously, they released a guidance memo to their field staff regarding Clean Water Act jurisdiction. The agencies claim these actions are necessary because of the SWANCC case. But both the guidance memo and the proposed rulemaking go far beyond the holding in SWANCC. The guidance took effect right away and has had an immediate impact. It tells the Corps and EPA staff to stop asserting jurisdiction over isolated waters without first obtaining permission from headquarters. Based on this guidance, waters that the EPA and Corps judge to be outside the Clean Water Act can be filled, dredged, and polluted without a permit or any other long-standing Clean Water Act safeguard. The rulemaking announces the Administration's intention to consider even broader changes to Clean Water Act coverage for our waters. Specifically, the agencies are questioning whether there is any basis for asserting Clean Water Act jurisdiction over additional waters, like intermittent streams. The possibility for a redefinition of our waters is troubling because there is only one definition of the term ``water'' in the Clean Water Act. The wetlands program, the point source program which stops the dumping of pollution, and the non-point program governing polluted runoff all depend on this definition. If we don't protect a category of waters from being filled under the wetlands program, we also fail to protect them from having trash or raw sewage dumped in them, or having other activities that violate the Clean Water Act conducted in them as well. Congress needs to re-establish the common understanding of the Clean Water Act's jurisdiction to protect all waters of the U.S.--the understanding that Congress held when the Act was adopted in 1972--as reflected in the law, legislative history, and longstanding regulations, practice, and judicial interpretations prior to the SWANCC decision. The proposed legislation does three things, and it is a very simple bill. It adopts a statutory definition of ``waters of the United States'' based on a longstanding definition of waters in the EPA and Corps of Engineers' regulations. Second, it deletes the term navigable from the Act to clarify that Congress's primary concern in 1972 was to protect the nation's waters from pollution, rather than just sustain the navigability of waterways, and to reinforce that original intent. Finally, it includes a set of findings that explain the factual basis for Congress to assert its constitutional authority over waters and wetlands on all relevant Constitutional grounds, including the Commerce Clause, the Property Clause, the Treaty Clause, and Necessary and Proper Clause. In conclusion, I am very pleased to have the support of so many environmental and conservation groups, and well as organizations that represent those who regulate and manage our country's wetlands, such as: the Natural Resources Defense Council, Earthjustice, the National Wildlife Federation, Sierra Club, American Rivers, the National Audubon Society, U.S. Public Interest Research Group, Defenders of Wildlife, the Ocean Conservancy, Trout Unlimited, the Izaac Walton League, and the Association of State Floodplain Managers. They know, as I do, that we need to re-affirm the federal government's role in protecting our water. This legislation is a first step in doing just that. I ask unanimous consent that the text of the legislation be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to introduce legislation on behalf of Wisconsin's seniors and taxpayers whose wallets are being gauged by certain pharmaceutical companies. My legislation is in response to certain pharmaceutical companies' decision to target seniors who are crossing into Canada to get more affordable prescription drugs for their own use. If these pharmaceutical companies are going to price gauge seniors's wallets, they don't deserve the taxpayers' support. A growing number of American seniors are obtaining their prescription drugs from Canada for personal use. Unfortunately, many of these seniors who are crossing the boarder to access more affordable prescription drugs for their personal use are being targeted by the very pharmaceutical companies that receive millions in tax breaks. I recently received a call from seniors in my state that Glaxo Smith Klein had decided to stop supplying Canadian pharmacies that resell its drugs to Americans, thereby preventing them from receiving the same benefits these pharmacies provide to Canadians. The Seniors in my State were not the only ones who took notice of this action. On February 21st of this month, Seniors groups from 12 States, including Wisconsin, sent Glaxo a message by launching a boycott of nonprescription products of Glaxo-Smith-Kline. Congress should also send all pharmaceutical companies a message that this practice simply is unacceptable. I think the single most important step we can take is to modernize Medicare and make it better is to eliminate the current inequities in the Medicare system and provide the prescription drug coverage senior citizens need. At the same time Congress should pass legislation, that Senators Schumer, McCain, and I introduced that would bring lower-cost generic drugs to the market faster and lower the cost of prescription drugs by $60 billion. Until we pass a comprehensive prescription drug benefit, we must ensure that seniors are not targeted by pharmaceutical companies. If these drug companies actively discriminate against American seniors, we should not provide them tax breaks. That's why my legislation would deny tax breaks to drug companies who discriminate against Canadian pharmacies that provide Americans the same discount that they provide to Canadians. I urge my colleagues to join me in cosponsoring this legislation.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I wish to speak on the military's recent discharge of several linguists who are critically needed in our Nation's fight against terrorism but who, in the military's eyes, are unfit for the job because of their sexual orientation. The military's treatment of these individuals is not only a grave injustice to these talented men and women who have bravely volunteered to defend our Nation, but it poses a serious threat to our Nation's preparedness. After the terrorist attacks of September 11, 2001, our Nation's security agencies and all branches of the military recognized that they must increase the recruitment and training of linguists who can speak and interpret languages such as Arabic, Farsi, Korean, Mandarin Chinese, and Russian. Understanding these languages is critical to ensuring our Nation's security. Those who are able to communicate in these languages can translate communications that may be made by terrorists or others intent on doing us harm. In fact, a large portion of the intelligence information retrieved by the U.S. security agencies currently cannot be translated, hindering the ability of the Federal Government to protect our country. According to a study released by the U.S. General Accounting Office in January 2002, the Army is facing a serious shortfall of linguists in five of the six languages it categorizes as most critical--Arabic, Korean, Mandarin Chinese, Farsi, and Russian. The Army has met only 50 percent of its need for linguists who speak Arabic, 63 percent of its need for Korean speakers, 62 percent of its need for Mandarin Chinese speakers, 32 percent of its need for Farsi speakers, and 63 percent of its need for Russian speakers. This leads to a 44 percent total shortfall in translators and interpreters for 5 of the 6 critical languages. Furthermore, the Army only has 75 percent of the cryptology linguists needed who speak Korean and Mandarin Chinese, and has a 13 percent shortfall of Army Human Intelligence Collectors in five of the languages found to be of critical importance. Spanish is the only language for which the Army has met its linguist needs. Although the military faces a crisis in the linguistics field, linguists with a high level of proficiency in languages determined critical by the military and security agencies have continued to be discharged from the Armed Forces simply because they are gay, lesbian, or bisexual. In 1993, the military instituted a plan known as ``Don't Ask, Don't Tell, Don't Pursue, Don't Harass,'' known more commonly as the ``Don't Ask, Don't Tell'' policy. The basic premise of the ``Don't Ask, Don't Tell'' policy is that, while military leaders know that gays, lesbians, and bisexuals have always played an important part in America's military, homosexual members of the military are not allowed to be asked about or to tell anyone about their sexual orientation. Furthermore, the Department of Defense generally cannot conduct investigations regarding the sexual orientation of service members, and the Armed Forces has a policy that does not tolerate harassment of anyone based on perceived or actual homosexuality. The ``Don't Ask, Don't Tell'' policy has been, by most accounts, a failure. Homosexual military personnel continue to be harassed within all the branches of the Armed Forces. In fact, according to the Servicemembers Legal Defense Network, SDLN, an advocacy organization dedicated to aiding gay, lesbian, and bisexual service members who face discrimination in the armed services, in 2001 the armed services fired more than 1,250 gay, lesbian, and bisexual Americans B more than any other year since 1987. Furthermore, since the initiation of the ``Don't Ask, Don't Tell'' policy, more than 7,800 American service members have lost their jobs because of anti-gay sentiment. Not only does the ``Don't Ask Don't Tell'' policy needlessly discriminate against courageous Americans, it also wastes millions in taxpayer dollars. For example, according to SLDN, the government spent $36 million to replace gays, lesbians, and bisexuals who were discharged from the military in 2001. Even more staggering is the fact that the government has spent over $234 million to train replacements for homosexual service members since the ``Don't Ask, Don't Tell'' policy was enacted in 1993. Thus, instead of using those millions of dollars on fighting terrorism, the military is spending it to replace linguists that they already have in their ranks. Not only does the ``Don't Ask, Don't Tell'' policy waste time, money and linguistic skill, it also initiates discrimination against those who simply want to serve their country. One of these Americans is Alastair Gamble. He had been in training in Arabic for only a few months at the Defense Language Institute when the terrorist attacks of September 11 occurred. After the attacks, he decided that his skills were needed more than ever. He continued his studies and soon was able to converse about military operations, economics, and politics in Arabic. He, however, would not be able to serve his country. Why? Because he was caught one night in his partner's room after hours. Though Gamble admits that he broke the military's policy, he states that many heterosexual couples also broke this same rule on that same night. The heterosexual couples, however, were only reprimanded. In stark contrast, Gamble's infraction led to a search of his room where military officials found evidence that led to the discovery of a relationship with another officer who was studying Korean at the time. Soon both Gamble and his partner were dismissed from the Army, and the American people were denied the service of two young men who were learning badly needed language skills. Gamble and his partner are not alone. From October 2001 through December 2002, seven other linguists specializing in critical languages were also discharged after telling superiors that they were gay. Gamble and the eight other linguists should not be treated this way. It is past time for the U.S. military to modernize its attitudes toward soldiers' sexual orientation. It is time for the U.S. military to recognize the contributions of gay, lesbian, and bisexual military officers and enlisted personnel by allowing them to serve in the Armed Forces without fear and prejudice. Currently, security organizations within the United States allow for open service--most notably, the Central Intelligence Agency and the National Security Agency. These openly gay men and women serve our country well. In fact, they sometimes serve along-side military men and women who cannot discuss their sexual orientation. Not only do United States intelligence agencies allow for open service, but many other nations allow open service as well. Some of our closest allies--Germany, France, the United Kingdom, Australia, the Czech Republic, Sweden, Canada, Belgium, the Netherlands, Spain, Denmark, Norway, Luxembourg, Iceland and Italy--allow open service in their military. In fact, the United States and Turkey are the only two NATO countries that do not allow open military service for gay men. Nations that allow for open military service have not reported any change in the way the military is run because of their policies. According to a study by Aaron Belkin, the Director of the Center for the Study of Sexual Minorities at the University of California, Santa Barbara, and Jason McNichol, senior officials, commanders, and military scholars within the Australian Defense Forces consistently praise the lifting of the gay ban, which occurred in 1992. The report states that there has been no overall pattern of disruption to the military, recruitment and retention have not suffered, and military performance was not affected because of the ban. In January 2000, Britain too lifted its ban on gays in the military. According to PlanetOut News, a review of the policy by the British military, released in late 2000, found that there was no discernable impact on the military after it lifted the ban. If some of our closest allies have been successful in allowing open service in the military, why not the United States? Our military has been fighting terrorism and may soon go to war against Iraq. We desperately need the specialized language skills of our fellow Americans as resources. Our military should cease the discriminatory and counter-productive policy of discharging competent military personnel simply because of their sexual orientation. I hope that this administration will consider the consequences of the decision to discharge the linguists I have spoken about today and will give gay, lesbian, and bisexual Americans the chance to serve openly in the United States military.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, attention is understandably on Iraq this week as we move ever closer to a decision on use of military force there to disarm the regime of Saddam Hussein. But as we contemplate whether such action makes sense in terms of protecting our people from the threat of global terrorism, it is important that we not lose sight of important developments in other parts of the world. Earlier this week, Secretary of State Powell visited Beijing, reportedly to seek the support of China's leaders in dealing with Iraq and North Korea. This makes sense, since China has the power to veto any U.N. resolution on Iraq and is reputed to have influence with Kim Jong-Il. Our relations with China have warmed since September 11, as its support was deemed important to the success of the ``war on terrorism,'' both in Afghanistan and beyond. Unfortunately, China's leaders appear to have a very different agenda for this war. As the Chinese would say, we are sleeping in the same bed but having different dreams. Earlier this month, Wang Bingzhang, a Chinese democracy activist who has lived most of the past 20 years in New York as a U.S. legal permanent resident, was sentenced to life in prison following a secret trial on charges of espionage and ``leading a violent terrorist organization.'' Chinese authorities had had him in custody, unbeknownst to his family, since last July, when he was apparently abducted while visiting Vietnam and brought across the border into China. The Chinese authorities have presented no public evidence linking Wang to any violent activities. Since being exiled to Canada in 1979, however, he has advocated peaceful democratic change in China, founding the magazine China Spring in New York in 1982 and serving as an adviser to the outlawed China Democracy Party. He sneaked across the border into China in 1998, when the China Democracy Party was attempting to organize and register itself within the boundaries of Chinese law, and was detained and deported. The Chinese Communists clearly see him as a nuisance, and the ``war on terrorism'' provided a convenient excuse to silence him. Last month, Chinese authorities executed a former Tibetan monk, Lobsang Dhondrup, who was accused of carrying out a series of bombings in Sichuan Province. Lobsang was detained near the scene of one of the bombings last April. But the only evidence made public against him was his confession, which was very likely extracted through torture. He was killed immediately after the Intermediate Court for the Ganzi Tibetan Prefecture upheld his death sentence. The same day, the Sichuan Provincial High Court in Chengdu rejected the appeal of Tenzin Delek Ripoche, a senior Tibetan Buddhist monk and social and environmental activist, and reaffirmed his suspended death sentence in connection with the same case. Chinese authorities have provided no public evidence linking Tenzin to the bombings, according to Human Rights Watch. A third man, Tsereng Dhondrup, was given 5 years for merely circulating petitions in defense of Lobsang and Tenzin. Authorities are thought to be holding 10 other ethnic Tibetans in connection with the bombings but will not release their names or locations. Mr. President, I do not dispute for a moment that Chinese authorities have the right--indeed the duty--to take firm measures against terrorism within their borders, just as we are doing here. The bombings in Sichuan, which took innocent life, were without question terrorist acts, as were the bombings this week on Beijing university campuses, and they should be condemned. The imperative to combat terrorism does not absolve any nation, however, of its obligation to respect basic human rights, including the right to due process. Whether Lobsang was involved in the bombings in Sichuan we may never know. But Assistant Secretary of State Lorne Craner has expressed ``deep concern'' as to whether Lobsong received a fair trial, according to the Washington Post. Neither Lobsang nor Tenzin was allowed to choose his own defense attorney. Tenzin was held incommunicado for 8 months, up to the day of his trial, and appeal hearings were closed to the public on the grounds that ``state secrets'' were involved. These cases illustrate a deeply cynical misappropriation of the anti- terrorist struggle by a repressive regime to suppress legitimate dissent, persecute restive minority groups, and literally get away with murder. Administration officials maintain that, while seeking China's cooperation in combatting international terrorism, they have at the same time made clear that China should not interpret that as a license to violate basic human rights. But violate them they have, and apparently with increasing frequency. In the Northeast Chinese Rustbelt city Liaoyang, two labor leaders-- Yao Fuxin and Xiao Yunliang--are awaiting sentencing following their January 15 trial for ``inciting the subversion of the political authority of the state.'' The prosecution said they conspired to ``overthrow the socialist system.'' In fact, what they did was organize protest marches last spring for workers laid off from a state-owned plant that went bankrupt in 2001, owing them several months of back wages, as well as pension and other benefits and severance allowances. Workers suspected the plant's management had embezzled funds that should have been used to pay those benefits. The authorities declared the protests illegal and arrested Yao, Xiao, and two other organizers. According to labor activists in Hong Kong who have been monitoring the case, Yao and Xiao were held for several months without formal charges and were denied access to their lawyer on the grounds that the case involved ``state secrets.'' The initial indication was that they had been arrested for illegal assembly. But when the workers of Liaoyang continued to rally behind their leaders and the case attracted international attention, Chinese authorities asserted that the men had carried out ``destructive activities,'' including car-bombings and destroying public property. This was something not even the Liaoyang police and prosecutors had alleged. Even the local representative of the official Communist Party labor organization called the allegations ``a complete fabrication.'' Nonetheless, when formal charges were finally announced against the men last month, they were charged not just with illegal assembly but with the much more serious offense of subversion. At their four-hour trial January 15, the prosecution made no attempt to tie Yao and Xiao to any violent activities. Instead, they argued, Yao and Xiao had subverted the authority of the Chinese state by attending preparatory meetings of the then not-yet-banned China Democracy Party back in 1998 and communicating with ``hostile foreign elements,'' such as Agence France Presse and the Wall Street Journal. Here again, China's rulers have appropriated the language of antiterrorism to persecute people who have done nothing more than challenge the authority of the Communist Party through peaceful means. Meanwhile, throughout China, the brutal suppression of the Falungong spiritual movement, which President Jiang Zemin has branded an ``evil cult,'' continues. Charles Li, a U.S. citizen Falungong practitioner, is about to enter his sixth week of detention in Jiangsu Province, where he returned to spend Chinese New Year with his parents. Authorities have not charged him, and he has been allowed only one half-hour meeting with U.S. consular officials. Initial reports indicated he was accused of hijacking television broadcasts to spread the banned Falungong message. But his friends and associates maintain he was not even in China when those incidents occurred. His actual sin appears to be having had the temerity to serve a subpoena on the Mayor of Beijing, when he visited San Francisco last year, under the Alien Tort Claims Act and Torture Victim Protection Act, as was his right as a U.S. citizen on U.S. territory under U.S. law. Why is it that we are seeing so many egregious violations of basic human rights in China in such a short span of time? Could it be that the senior leadership in Beijing knows that the world's attention is currently focused elsewhere? Could it be they think U.S. criticism of their actions will be muted, since the administration needs their support, or at least their acquiescence, on Iraq and North Korea? Or could it be that President Jiang and his cohorts, who will step down next month, want to clear the dockets so that Hu Jintao and the new crew can begin with a clean slate? Remember that Jiang rode to power on the tide of blood from Tiananmen Square, and he has snuffed out anything that even smelled of political reform ever since. I hope China's incoming leaders, by virtue of their shared generational experience, will adopt a more enlightened view toward political modernization than their predecessors did. They are less likely to do so if they infer that the rest of the world is not paying attention or doesn't care. We must keep the disinfectant of sunlight focused on them, and anyone else who would deny people their basic freedoms and dignities in the name of ``stability,'' ``security'' or the ``war on terror.'' Thank you, Mr. President.

Mr. FEINGOLD

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

Mr. FEINGOLD. Mr. President, for the past few weeks, we have had a vigorous debate on the floor and in the country on this nomination. I discussed my reasons for opposing Mr. Estrada's nomination before the recess. As I said then, I would probably vote to confirm Mr. Estrada to a lower court. But for this crucial court, at this crucial time, he is not the right person for the job. I have reached that conclusion in part because Mr. Estrada gave us so little to work with in trying to understand what kind of judge he would be. When we are talking about a lifetime appointment to the second highest court in this country, we cannot be expected to take it on faith that Mr. Estrada will be a fair and impartial judge, with no ideological axe to grind. The Senate's role is too important to just ``hope for the best.'' No, when we are asked to confirm a nominee to such a significant post, we have a right to expect that nominee to be forthcoming in answering our questions, and we have a right to expect the administration to be cooperative in providing any information that is relevant to making our decision. That is what the advice and consent process is about. Not some kind of phony ``consultation'', and certainly not a rubberstamp for the President's nominees. Today I want to respond to some of the arguments that have been raised by those who support the nomination. Many of the arguments come in the form of twisting and misstating the reasons given by opponents, in order to ridicule them. Many have been creating straw men in order to knock them down. For example, we have heard numerous times that Senators oppose Mr. Estrada because he has no judicial experience, and the answer to that straw man is that many distinguished judges had no judicial experience. That is certainly true. I agree with that. Some great appellate judges had no prior judicial experience. Some of them sat or sit on the DC Circuit. But those of us who note Mr. Estrada's lack of judicial experience are not saying that that should disqualify him from serving in this position. What we are saying is that his lack of experience means he lacks a record to evaluate, unlike many of the other individuals that President Bush has nominated to the circuit courts, who have served for many years as US District Court judges. At the same time, Mr. Estrada has not been a law professor and written scholarly articles for publication. His lack of judicial experience is part of his lack of a record that we can review in order to see what kind of judge he will be. That brings me to the Solicitor General memos. In a way, this is really the crux of the problem with Mr. Estrada. Because Mr. Estrada has no judicial experience, because he has not written articles as a law professor, because he is so young and some of his most significant legal experience was as a lawyer in the Solicitor General's office, and because questions have been raised about his performance in that office, we have asked to see the memos that he wrote to his superiors on questions such as whether the United States Government should appeal an adverse ruling to the Supreme Court or whether it should file an amicus brief in a case that the Supreme Court has decided to hear. This request was originally made by then Chairman Leahy in May 2002, months before Mr. Estrada had his hearing before the Senate Judiciary Committee. So the claim that the request for these documents is a last minute effort to derail the nomination is patently untrue. We have been seeking these documents for nearly a year now, and the administration has been stonewalling for nearly a year now. I am afraid I have to say it has also been stonewalling in a really disingenuous way. The administration, echoed by supporters of Mr. Estrada here on the floor, has claimed that our request is unprecedented, that no such memos have ever been turned over to the Senate. One Senator stated unequivocally: Never in the history of the Justice Department have those type of materials that are privileged, confidential work product materials been given to this branch of Government or any other branch. That is a pretty strong statement. It is also untrue. For example, during the consideration of the nomination of William Bradford Reynolds to be Associate Attorney General at the Department of Justice, exactly these kinds of memos--recommendations on appeals and amicus briefs written by line attorneys--were turned over to the Judiciary Committee. Then, during the consideration of the nomination of Robert Bork to the Supreme Court, a large amount of material was turned over to the Committee, including memos written to or from Judge Bork when he served as Solicitor General. In particular, memos to Judge Bork from Judge Frank Easterbrook, who then served in exactly the same position as Mr. Estrada did when he was in Solicitor General's office, were made available to the Senate. Still the Justice Department disputed the facts and continued to insist that only limited materials were made available during the Bork nomination and other materials must have been leaked. But Senator Leahy has disclosed a 1988 letter from Acting Assistant Attorney General Thomas Boyd to Senator Biden, requesting the return of materials that had been turned over during the confirmation proceedings. Mr. Boyd states: [M]any of the documents provided to the Committee, ``reflect or disclose purely internal deliberations within the Executive Branch, the work product of attorneys in connection with government litigation or confidential legal advice received from or provided to client agencies within the Executive Branch.'' We provided these privileged documents to the Committee in order to respond fully to the Committee's request and to expedite the confirmation process. It is abundantly clear that the Justice Department has provided these kinds of materials in the past, despite their confidentiality. And that is as it should be. I have enormous respect for some of the former Solicitors General who have written to us and given their view that these memos should not be released. But with respect, they are not Senators. They are not accountable to constituents for the votes that they take on whether to confirm judicial nominees. They have never made policy for this body, and unless they run for election in the States where they live, they never will. The White House and some of our colleagues have also argued that these kinds of memos have not been requested of all nominees who once served in that office or in a similar position in the Department of Justice. True enough. But that only underscores how important our request is. I say again, it is because Mr. Estrada has no judicial experience, because he has not written articles as a law professor, because he is so young and some of his most significant legal experience was as a lawyer in the Solicitor General's office, and because questions have been raised about his performance in that office, that we have asked to see these materials. The administration's failure to comply with our legitimate request, a request which is strongly supported by precedent in the Judiciary Committee's handling of past nominations, frankly leads to the question of whether there is something to hide in those memos. We will never know until we have a chance to read them. But what we do know is that until they are turned over this logjam will continue. Now some have made the argument on this floor and in the press that our action in delaying a vote on Mr. Estrada is unprecedented. That is plainly not the case, and again illustrates the amount of distortion that is occurring in this debate. According to CRS, there have been cloture motions filed on 14 judicial nominees since 1980. Just three years ago, cloture votes were required before two of President Clinton's nominees to the Ninth Circuit, Marsha Berzon and Richard Paez, could be confirmed. When these nominations were finally reported from committee after years and years of delay, motions to proceed to their consideration on the floor were defeated by the Republican majority. Over 5 months later, the nominations were finally brought to the floor. The two nominations were considered and debated together, and a cloture motion was required to end the debate on each nominee. It is true that both the majority leader at the time, Senator Lott, and Senator Hatch, supported cloture on the nominations. But still, there certainly was a filibuster on those nominees. That is what cloture votes do; they end filibusters. Senator Bob Smith was leading the opposition to the nominees. He put out a press release indicating that he was filibustering to stop them. Late last week, we heard from one Senator that this is the first ``true filibuster'' of a Circuit court nominee. I am still waiting to hear an explanation of what a true filibuster is compared to what happened with Judges Berzon and Paez. Is a ``true filibuster'' only one that seems to have the votes to succeed? That is an interesting definition. Let us not forget that in so many other cases during President Clinton's term in office, there was no filibuster because his nominees were never given a hearing or a vote in the Judiciary Committee. That is what happened to two nominees to the Circuit to which Mr. Estrada has been nominated. Alan Snyder, nominated by President Clinton in June of 1999, finally had a hearing in May of 2000, but never received a vote in Committee. Elena Kagan, nominated in September 1999, never even had a hearing in the Committee. So how exactly is that fairer treatment than a filibuster? The claims that this nominee is subject to unprecedented unfairness because an up or down vote is not being permitted at this time ring hollow. It is time for the Administration to face up to what happened over the last six years that President Clinton was in office. The DC Circuit is a very good place to start. There are two more vacancies on that circuit. If President Bush were to resubmit Mr. Snyder and Ms. Kagan's names, the court would remain balanced, and the President could really change the tone of the judicial nominations issue. For now, we are faced with an effort to fill a slot held open for years of a Democratic presidency with a nominee whose views are a mystery. That is not acceptable and we must continue to resist it. I yield the floor. I suggest the absence of a quorum.

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

Mr. FEINGOLD. Mr. President, I would also like to address one of the most important issues facing my state of Wisconsin, as well as many others across the country, the need to restore fairness to the Medicare program. During any debate of Medicare reform, one of Congress' top priorities should be to reduce regional inequalities in Medicare spending and support providers of high-quality, low-cost Medicare services. The high cost of health care in Wisconsin is skyrocketing: A recent survey found that the cost of health benefits for employees in Wisconsin rose 14.8 percent last year, to an average of $6,940 per employee. That is 20 percent higher than the national average of $5,758 for workers in businesses with 500 or more employees. These costs are hitting our state hard--they are burdening businesses and employees, hurting health care providers, and preventing seniors from getting full access to the care that they deserve. One of the major contributing factors to the high cost of care in our state is the inherent unfairness of the Medicare Program. With the guidance and support of people across our state who are fighting for Medicare fairness, I have proposed legislation to address Medicare's discrimination against Wisconsin's seniors, employers and health care providers. The Medicare program should encourage the kind of high- quality, cost-effective Medicare services that we have in Wisconsin. But as many in Wisconsin know, that is not the case. To give an idea of how inequitable the distribution of Medicare dollars is, imagine identical twins over the age of 65. Both twins worked at the same company all their lives, at the same salary, and paid the same amount to the federal government in payroll taxes, the tax that goes into the Medicare Trust Fund. But if one twin retired to Louisiana or Florida and the other retired in Eau Claire, Wisconsin, they would have vastly different health care options under the Medicare system. The twin in Louisiana or Florida would get much more. For example, in most parts of Louisiana and Florida, the first twin would have more options under Medicare. The high Medicare payments in those areas allow Medicare beneficiaries to choose between an HMO and a traditional fee-for-service plan, and, because area health care providers are reimbursed at such a high rate, those providers can afford to offer seniors a broad range of health care services. The twin in Eau Claire does not have the same access to care--there are no options to choose from in terms of Medicare HMOs, and sometimes fewer health care agencies that can afford to provide care under the traditional fee-for-service plan. How can two people with identical backgrounds, who paid the same amount in payroll taxes, have such different options under Medicare? They can because the distribution of Medicare dollars among the 50 states is grossly unfair to Wisconsin, and much of the country. Wisconsinites pay payroll taxes just like every American taxpayer, but the Medicare funds we get in return are lower than those received in many other states. Legislation that I and others have proposed will take us a step in the right direction by reducing the inequities in Medicare payments to Wisconsin's hospitals, physicians, and skilled nursing facilities. Last year, with the introduction my Medicare fairness legislation and the efforts of many other Senators, including both the chair and ranking member of the Finance Committee, we put Medicare fairness issues front and center in Congress. We saw many successes. The Senate Budget Committee approved my amendment to promote Medicare fairness in any Medicare reform package. A wide range of Senators from both parties endorsed my proposal to create a Medicare fairness coalition. The House passed a number of Medicare fairness provisions that were a result of these successes, and both House and Senate leadership endorsed Medicare fairness issues. Now that we have finally brought these issues the attention that they deserve, we need to build on that momentum to pass Medicare fairness provisions into law. Some of this increased awareness can be seen in the recently passed omnibus spending bill. While I opposed this legislation, I was especially pleased that it contained provisions that take us a step toward fairness in the distribution of Medicare dollars in Wisconsin and other states across the country. By increasing the Medicare payments to small urban and rural providers, we are closer to reducing the inequities that plague the Medicare system. I hope that these provisions are only the first steps that Congress takes to restore Medicare fairness for Wisconsin and other affected States. Medicare shouldn't penalize high-quality providers of Medicare services, and most of all, Medicare should stop penalizing seniors who depend on the program for their health care. They have worked hard and they have paid into the program all their lives, and in return they deserve full access to the wide range of benefits that Medicare has to offer. So I look forward to working with my colleagues to move legislation forward. I believe that we can rebalance the budget, while at the same time encouraging efficient, quality-enhancing Medicare services. Mr. President, I have one other topic. supporting first responders Mr. President, I would also like to take this opportunity to talk about the need for Congress to help first responders do what they do so well: protect our communities in an emergency. The Department of Homeland Security is creating a massive shift in the Federal Government. Nobody will feel the impact of this shift more than the brave men and women who work in law enforcement, as firefighters, as rescue workers, as emergency medical service providers, and as first responders. We must make sure that these first responders have the resources that they need. While I commend the administration for raising the funding dedicated to first responders in the President's budget, I am concerned that these new layers of bureaucracy and reorganization could reduce these funding levels or, just as harmfully, put up barriers to first responders actually receiving these funds. The Federal agencies in the proposed Department of Homeland Security must listen to the priorities of our communities. After all, the needs of first responders actually vary among regions, as well as between rural communities and urban communities. In Wisconsin, I have heard needs ranging from training, to equipment, to more emergency personnel in the field, just to name a few. So I have proposed legislation, along with my friend from Maine, the chair of the Governmental Affairs Committee, that would promote effective coordination among Federal agencies under the Department of Homeland Security and ensure that our first responders--our firefighters, law enforcement, rescue, and EMS providers--can help Federal agencies and the new Department of Homeland Security improve existing programs and future initiatives. This is what it would do: It would first establish a Federal Liaison on Homeland Security in each State and coordinate between the Department of Homeland Security and State and local first responders. This office would serve not only as an avenue to exchange ideas, but also as a resource to ensure that the funding and programs are effective. For example, my hope is that the Homeland Security Department will make programs such as the Fire Act a high priority. The Fire Act provides grants directly to fire departments across our Nation for training and equipment needs. Last year, I visited one excellent example of this program in West Allis, WI, where the department received a grant in 2001 to implement a wellness and fitness program for their firefighters. I am told that it is one of the first departments in the State to meet the goals of this program, and I commend the department for its efforts. Our legislation would also direct the agencies within the Department of Homeland Security to coordinate and prioritize their activities that support first responders, and at the same time, ensure effective use of taxpayer dollars. As part of this coordination, the First Responders Support Act would establish a new advisory committee of those in the first responder community to identify and streamline effective programs. Last year, both the original Senate and House homeland security bills lacked the provisions needed to ensure that the new Department of Homeland Security communicates and coordinates effectively with first responders. During the Senate Governmental Affairs Committee markup of the homeland security bill last year, I was pleased to see the committee added our First Responders Support Act to the legislation. It did so knowing that we would have to reconcile the overlap between our legislation and the language in the chairman's mark creating an office for State and local government coordination. Our amendment, which was approved by the full Senate, did exactly that. Unfortunately, our proposal was dropped from the final bill during conference. I hope congress can make enactment of this legislation one of its priorities this year. We must be aggressive in seeking the advice of our first responders, and helping them to get the resources that they need to provide effective services. They are on the front lines, and they deserve our support. In almost any disaster, the local first responders and health care providers play an indispensable role. If the Department of Homeland Security is to be effective, we need to ensure that the resources are delivered to the front line personnel in an effective and coordinated manner. I urge my colleagues to join me in passing this proposal and others to support our first responders. Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today with my colleague from Maine to introduce legislation to promote health care parity for individuals participating in legal transportation and recreational activities. This legislation addresses concerns that I have been hearing from a wide range of Wisconsinites about a loophole caused by the Department of Health and Human Services' ruling that makes it possible for health care coverage to be denied to those who are injured while participating in these kinds of legal activities. In January of 2001, the Health Care Finance administration released regulations governing the Health Care Insurance Accountability Act of 1996, also known as HIPAA. As part of this act, Congress intended to ban health insurance discrimination against those participating in legal transportation or recreational activities. Ironically, it appears that the rules written in response to this legislation may have had precisely the opposite effect. These new regulations at first state that an employer cannot refuse health care coverage to an employee on the basis of participation in recreational activities. But they then go on to say that health care benefits can be denied for injuries sustained in connection with those recreational activities. Not only does this ruling make little sense, it flies in the face of what Congress intended. In a colloquy between Senators Moseley-Braun and Kassebaum, Senator Mosely-Braun stated, ``As I understand it, this formulation is intended to ensure that, among other things, participants and beneficiaries are not excluded from health care coverage because they participate in activities such as motorcycling, skiing, horseback riding, snowmobiling, or other similar activities.'' And Senator Kassebaum simply said ``The Senator from Illinois is correct.'' But the bureaucrats turned around and permitted the denial of benefits for any injury sustained while participating in these legal activities. This ruling makes no sense. Because of this loophole, someone who participates in motorcycling, snowmobiling, running or walking could be denied health care coverage, while someone who is injured while drinking and driving a car would be protected. Congress voted 98-0 in favor of the HIPAA legislation that included this language. We must close the loophole that the interpretation of this provision has created. From riding Harley Davidson motorcycles to the visiting the Snowmobile Hall of Fame in St. Germain, these activities are part of Wisconsin's heritage and economy. It makes no sense that they would be singled out for this unfair treatment. Millions of Americans rely on motorcycles for their transportation to work. Individuals should not singled out just because they choose a different mode of transportation to go to work. I urge my colleagues to cosponsor this legislation and provide health care parity for individuals participating in legal transportation and recreational activities.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today with my colleague from Maine to introduce legislation to promote health care parity for individuals participating in legal transportation and recreational activities. This legislation addresses concerns that I have been hearing from a wide range of Wisconsinites about a loophole caused by the Department of Health and Human Services' ruling that makes it possible for health care coverage to be denied to those who are injured while participating in these kinds of legal activities. In January of 2001, the Health Care Finance administration released regulations governing the Health Care Insurance Accountability Act of 1996, also known as HIPAA. As part of this act, Congress intended to ban health insurance discrimination against those participating in legal transportation or recreational activities. Ironically, it appears that the rules written in response to this legislation may have had precisely the opposite effect. These new regulations at first state that an employer cannot refuse health care coverage to an employee on the basis of participation in recreational activities. But they then go on to say that health care benefits can be denied for injuries sustained in connection with those recreational activities. Not only does this ruling make little sense, it flies in the face of what Congress intended. In a colloquy between Senators Moseley-Braun and Kassebaum, Senator Mosely-Braun stated, ``As I understand it, this formulation is intended to ensure that, among other things, participants and beneficiaries are not excluded from health care coverage because they participate in activities such as motorcycling, skiing, horseback riding, snowmobiling, or other similar activities.'' And Senator Kassebaum simply said ``The Senator from Illinois is correct.'' But the bureaucrats turned around and permitted the denial of benefits for any injury sustained while participating in these legal activities. This ruling makes no sense. Because of this loophole, someone who participates in motorcycling, snowmobiling, running or walking could be denied health care coverage, while someone who is injured while drinking and driving a car would be protected. Congress voted 98-0 in favor of the HIPAA legislation that included this language. We must close the loophole that the interpretation of this provision has created. From riding Harley Davidson motorcycles to the visiting the Snowmobile Hall of Fame in St. Germain, these activities are part of Wisconsin's heritage and economy. It makes no sense that they would be singled out for this unfair treatment. Millions of Americans rely on motorcycles for their transportation to work. Individuals should not singled out just because they choose a different mode of transportation to go to work. I urge my colleagues to cosponsor this legislation and provide health care parity for individuals participating in legal transportation and recreational activities.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I introduce the Federal Death Penalty Abolition Act of 2003. This bill would abolish the death penalty at the Federal level. It would put an immediate halt to executions and forbid the imposition of the death penalty as a sentence for violations of Federal law. Since 1976, when the death penalty was reinstated by the Supreme Court, there have been 830 executions across the country, including two at the Federal level. At the same time, 103 people on death row were later found innocent and released from death row. Exonerated inmates are not only removed from death row, but they are usually released from prison altogether. Apparently, these people never should have been convicted in the first place. While death penalty proponents claim that the death penalty is fair, efficient, and a deterrent, the fact remains that our criminal justice system has failed and has resulted in at least 103 very grave mistakes. Eight hundred and thirty executions, and 103 exonerations. Those are not good odds. It is an embarrassing statistic, one that should have us all questioning the use of capital punishment in this country. Since January 25, 2001, when I last introduced this bill, the Federal Government resumed executions for the first time in almost 40 years, and 138 people have been executed nationwide. In this new year, we have begun our use of capital punishment at an alarming pace. We are only in the second week of February, and there have already been 10 executions this year. And yet this one-to-eight error rate looms. Is it possible that those 10 people are representative of the one-to-eight error rate that has plagued the death penalty since it was reinstated in 1976? Is it possible that in the last six weeks, as we have debated a war in Iraq, funding levels for Federal programs, and judicial nominations, our nation has killed an innocent person? It is a difficult question to ask, but an even more difficult one to ignore. While executions continue and the death row population grows, the national debate on the death penalty continues and has become even more vigorous. The number of voices joining in to express doubt about the use of capital punishment in America is growing. As evidence of the flaws in our system mounts, it has created an awareness that has not escaped the attention of the American people. Layer after layer of confidence in the death penalty system has been gradually peeling away, and the voices of those questioning its fairness are growing louder and louder. Now they can be heard from college campuses and court rooms and podiums across the Nation, to the Senate Judiciary Committee hearing room, to the Supreme Court. We must not ignore them. That our society relies on killing as punishment is disturbing enough. Even more disturbing, however, is that the States' and Federal Government's use of the death penalty is often not consistent with principles of due process, fairness, and justice. These principles are the foundation of our criminal justice system. It is more clear than ever before that we have put innocent people on death row. In addition, statistics show that those States that have the death penalty are more likely to put people to death for killing white victims than for killing black victims. After the death penalty was reinstated in 1976, the Federal Government first resumed death penalty prosecutions after enactment of a 1988 Federal law that provided for the death penalty for murder in the course of a drug-kingpin conspiracy. The Federal death penalty was then expanded significantly in 1994, when the omnibus crime bill allowed its use to apply to a total of some 60 Federal offenses. Since 1994, Federal prosecutions seeking the death penalty have now accelerated. A survey on the Federal death penalty system from 1988 to early 2000 was released by the U.S. Department of Justice in September 2000. That report showed troubling racial and geographic disparities in the federal government's administration of the death penalty. In other words, who lives and who dies in the Federal system appears to relate to the color of the defendant's skin or the region of the country where the defendant is prosecuted. Attorney General Janet Reno was so disturbed by the results of that report that she ordered a further, in- depth study of the results. Attorney General John Ashcroft pledged to continue that study, but we still await the results of that further study. The Federal Government should do all that it can to ensure that no person is ever subject to harsher penalties, most importantly that of capital punishment, because of the color of the defendant's skin. I am certain that not one of my colleagues here in the Senate, not a single one, would defend racial discrimination in this ultimate punishment. The most fundamental guarantee of our Constitution is equal justice under law, and equal protection of the laws. While the Federal death penalty system is clearly plagued by flaws, there are 38 States across our Nation that also authorize the use of capital punishment. And like the Federal system, those systems are not free from error. Over three years ago, Governor George Ryan took the historic step of placing a moratorium on executions in Illinois and creating an independent, blue ribbon commission to review the State's death penalty system. The Commission conducted an extensive study of the death penalty in Illinois and released a report with 85 recommendations for reform of the death penalty system. The Commission concluded that the death penalty system is not fair, and that the risk of executing the innocent is alarming real. Governor Ryan recently pardoned four death row inmates and commuted the sentences of all remaining Illinois death row inmates, after the State legislature failed to enact even one of the Commission's recommendations. Illinois is not alone. Two years ago, then Governor Parris Glendening learned of suspected racial disparities in the administration of the death penalty in Maryland. Governor Glendening did not look the other way. He commissioned the University of Maryland to conduct the most exhaustive study of Maryland's application of the death penalty in history. Then last year, faced with the rapid approach of a scheduled execution, Governor Glendening acknowledged that it was unacceptable to allow executions to take place while the study he had ordered was not yet complete. So, in May 2002, he placed a moratorium on executions. That study was released in January and the findings should startle us all. The study found that blacks accused of killing whites are simply more likely to receive a death sentence than blacks who kill blacks, or than white killers. According to the report, black offenders who kill whites are four times as likely to be sentenced to death as blacks who kill blacks, and twice as likely to get a death sentence as whites who kill whites. Maryland and Illinois are not exceptions to a rule, nor anomalies in an otherwise perfect system. In fact, since reinstatement of the modern death penalty, 81 percent of capital cases across the country have involved white victims, even though only 50 percent of murder victims are white. Nationwide, more than half of the death row inmates are African Americans or Hispanic Americans. There is evidence of racial disparities, inadequate counsel, prosecutorial misconduct, and false scientific evidence in death penalty systems across the country. While the research done in Maryland and Illinois has yielded shocking results, there are 36 other States that authorize the use of the death penalty, most of them far more frequently. Twenty-one of the 38 States that authorize capital punishment have executed more inmates than Maryland, and 13 of those States have carried out more executions than Illinois. So while we are closer to uncovering the unthinkable truth about the flaws in the Maryland and Illinois death penalty systems, there are 36 other states with systems that are most likely plagued with the same flaws. And yet, the killing continues. At the beginning of 2003, at the beginning of a new century and millennium with hopes for great progress, I cannot help but believe that our progress has been tarnished by our Nation's not only continuing, but increasing use of the death penalty. We are a Nation that prides itself on the fundamental principles of justice, liberty, equality and due process. We are a Nation that scrutinizes the human rights records of other nations. We are one of the first nations to speak out against torture and killings by foreign governments. We should hold our own system of justice to the highest standard. Over the last two years, some prominent voices in our country have done just that. And they are not just voices of liberals, or of the faith community. They are the voices of Justice Sandra Day O'Connor, Reverend Pat Robertson, George Will, former FBI Director William Sessions, Republican Governor George Ryan, and Democratic Governor Parris Glending. The voices of those questioning our application of the death penalty are growing in number, and they are growing louder. And while we examine the flaws in our death penalty system, we cannot help but note that our use of the death penalty stands in stark contrast to the majority of nations, which have abolished the death penalty in law or practice. There are now 111 countries that have abolished the death penalty in law or in practice. The European Union denies membership in the alliance to those nations that use the death penalty. In fact, it passed a resolution calling for the immediate and unconditional global abolition of the death penalty, and it specifically called on all states within the United States to abolish the death penalty. This is significant because it reflects the unanimous view of a group of nations with which the United States enjoys the closest of relationships. On February 5, 2003, the International Court of Justice, ICJ, ruled unanimously that the United States must temporarily stay the execution of three Mexican citizens on death row in Texas and Oklahoma. There are currently 112 foreign nationals on death row in this country. Under Article 36 of the 1963 Vienna Convention on Consular Relations, local authorities are required to notify all detained foreigners ``without delay'' of their right to have their consulate informed of their detention. In most cases, this international law is not being followed. In fact, only seven cases of 152 reported death sentences have been identified as meeting complete compliance with Article 36 requirements. The purpose of this law is to ensure that foreign nationals are allowed time to secure adequate counsel during the critical stages of their cases. The February ruling of the ICJ was based on the need for an investigation into whether the foreign nationals on death row were ever given their right to legal assistance from their home governments. What is even more troubling in the international context is that the United States is now one of only seven countries that imposes the death penalty for crimes committed by juveniles. So, while a May 2002 Gallup poll found that 69 percent of Americans oppose the death penalty for those under the age of 18, we are one of only seven nations on this earth that puts to death people who were under 18 years of age when they committed their crimes. The other are Iran, the Democratic Republican of the Congo, Pakistan, Nigeria, Saudi Arabia and Yemen. In the last decade, the United States has executed more juvenile offenders than all other nations combined, and in the last three years, only four nations have executed juvenile offenders: Iran, the Congo, Pakistan, and the United States. Iran, the Congo, and Pakistan are countries that are often criticized for human rights abuses. We should remove any grounds for charges that human rights violations are taking place on our own soil by halting the execution of people who were not even adults when they committed the crimes for which they were sentenced to die. No one can reasonably argue that executing child offenders is a normal or acceptable practice in the world community. And I do not think that we should be proud that the United States is the world leader in the execution of child offenders. As we begin a new year and another Congress, our society is still far from fully just. The continued use of the death penalty shames us. The penalty is at odds with our best traditions. It is wrong and it is immoral. The adage ``two wrongs do not make a right,'' applies here. Our nation has long ago done away with other barbaric punishments like whipping and cutting off the ears of suspected criminals. Just as our nation did away with these punishments as contrary to our humanity and ideals, it is time to abolish the death penalty as we seek justice in this new century. And it's not just a matter of morality. The continued viability of our justice system as a truly just system requires that we do so. And our Nation's striving to remain the leader and defender of freedom, liberty and equality demands that we do so. Abolishing the death penalty will not be an easy task. It will take patience, persistence, and courage. As we work to move forward in a rapidly changing world, let us leave this archaic practice behind. I ask my colleagues to join me in taking the first step in abolishing the death penalty in our great Nation. I also call on each State that authorizes the use of the death penalty to cease this practice. Let us step away from the culture of violence and restore fairness and integrity to our criminal justice system. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I introduce the Federal Death Penalty Abolition Act of 2003. This bill would abolish the death penalty at the Federal level. It would put an immediate halt to executions and forbid the imposition of the death penalty as a sentence for violations of Federal law. Since 1976, when the death penalty was reinstated by the Supreme Court, there have been 830 executions across the country, including two at the Federal level. At the same time, 103 people on death row were later found innocent and released from death row. Exonerated inmates are not only removed from death row, but they are usually released from prison altogether. Apparently, these people never should have been convicted in the first place. While death penalty proponents claim that the death penalty is fair, efficient, and a deterrent, the fact remains that our criminal justice system has failed and has resulted in at least 103 very grave mistakes. Eight hundred and thirty executions, and 103 exonerations. Those are not good odds. It is an embarrassing statistic, one that should have us all questioning the use of capital punishment in this country. Since January 25, 2001, when I last introduced this bill, the Federal Government resumed executions for the first time in almost 40 years, and 138 people have been executed nationwide. In this new year, we have begun our use of capital punishment at an alarming pace. We are only in the second week of February, and there have already been 10 executions this year. And yet this one-to-eight error rate looms. Is it possible that those 10 people are representative of the one-to-eight error rate that has plagued the death penalty since it was reinstated in 1976? Is it possible that in the last six weeks, as we have debated a war in Iraq, funding levels for Federal programs, and judicial nominations, our nation has killed an innocent person? It is a difficult question to ask, but an even more difficult one to ignore. While executions continue and the death row population grows, the national debate on the death penalty continues and has become even more vigorous. The number of voices joining in to express doubt about the use of capital punishment in America is growing. As evidence of the flaws in our system mounts, it has created an awareness that has not escaped the attention of the American people. Layer after layer of confidence in the death penalty system has been gradually peeling away, and the voices of those questioning its fairness are growing louder and louder. Now they can be heard from college campuses and court rooms and podiums across the Nation, to the Senate Judiciary Committee hearing room, to the Supreme Court. We must not ignore them. That our society relies on killing as punishment is disturbing enough. Even more disturbing, however, is that the States' and Federal Government's use of the death penalty is often not consistent with principles of due process, fairness, and justice. These principles are the foundation of our criminal justice system. It is more clear than ever before that we have put innocent people on death row. In addition, statistics show that those States that have the death penalty are more likely to put people to death for killing white victims than for killing black victims. After the death penalty was reinstated in 1976, the Federal Government first resumed death penalty prosecutions after enactment of a 1988 Federal law that provided for the death penalty for murder in the course of a drug-kingpin conspiracy. The Federal death penalty was then expanded significantly in 1994, when the omnibus crime bill allowed its use to apply to a total of some 60 Federal offenses. Since 1994, Federal prosecutions seeking the death penalty have now accelerated. A survey on the Federal death penalty system from 1988 to early 2000 was released by the U.S. Department of Justice in September 2000. That report showed troubling racial and geographic disparities in the federal government's administration of the death penalty. In other words, who lives and who dies in the Federal system appears to relate to the color of the defendant's skin or the region of the country where the defendant is prosecuted. Attorney General Janet Reno was so disturbed by the results of that report that she ordered a further, in- depth study of the results. Attorney General John Ashcroft pledged to continue that study, but we still await the results of that further study. The Federal Government should do all that it can to ensure that no person is ever subject to harsher penalties, most importantly that of capital punishment, because of the color of the defendant's skin. I am certain that not one of my colleagues here in the Senate, not a single one, would defend racial discrimination in this ultimate punishment. The most fundamental guarantee of our Constitution is equal justice under law, and equal protection of the laws. While the Federal death penalty system is clearly plagued by flaws, there are 38 States across our Nation that also authorize the use of capital punishment. And like the Federal system, those systems are not free from error. Over three years ago, Governor George Ryan took the historic step of placing a moratorium on executions in Illinois and creating an independent, blue ribbon commission to review the State's death penalty system. The Commission conducted an extensive study of the death penalty in Illinois and released a report with 85 recommendations for reform of the death penalty system. The Commission concluded that the death penalty system is not fair, and that the risk of executing the innocent is alarming real. Governor Ryan recently pardoned four death row inmates and commuted the sentences of all remaining Illinois death row inmates, after the State legislature failed to enact even one of the Commission's recommendations. Illinois is not alone. Two years ago, then Governor Parris Glendening learned of suspected racial disparities in the administration of the death penalty in Maryland. Governor Glendening did not look the other way. He commissioned the University of Maryland to conduct the most exhaustive study of Maryland's application of the death penalty in history. Then last year, faced with the rapid approach of a scheduled execution, Governor Glendening acknowledged that it was unacceptable to allow executions to take place while the study he had ordered was not yet complete. So, in May 2002, he placed a moratorium on executions. That study was released in January and the findings should startle us all. The study found that blacks accused of killing whites are simply more likely to receive a death sentence than blacks who kill blacks, or than white killers. According to the report, black offenders who kill whites are four times as likely to be sentenced to death as blacks who kill blacks, and twice as likely to get a death sentence as whites who kill whites. Maryland and Illinois are not exceptions to a rule, nor anomalies in an otherwise perfect system. In fact, since reinstatement of the modern death penalty, 81 percent of capital cases across the country have involved white victims, even though only 50 percent of murder victims are white. Nationwide, more than half of the death row inmates are African Americans or Hispanic Americans. There is evidence of racial disparities, inadequate counsel, prosecutorial misconduct, and false scientific evidence in death penalty systems across the country. While the research done in Maryland and Illinois has yielded shocking results, there are 36 other States that authorize the use of the death penalty, most of them far more frequently. Twenty-one of the 38 States that authorize capital punishment have executed more inmates than Maryland, and 13 of those States have carried out more executions than Illinois. So while we are closer to uncovering the unthinkable truth about the flaws in the Maryland and Illinois death penalty systems, there are 36 other states with systems that are most likely plagued with the same flaws. And yet, the killing continues. At the beginning of 2003, at the beginning of a new century and millennium with hopes for great progress, I cannot help but believe that our progress has been tarnished by our Nation's not only continuing, but increasing use of the death penalty. We are a Nation that prides itself on the fundamental principles of justice, liberty, equality and due process. We are a Nation that scrutinizes the human rights records of other nations. We are one of the first nations to speak out against torture and killings by foreign governments. We should hold our own system of justice to the highest standard. Over the last two years, some prominent voices in our country have done just that. And they are not just voices of liberals, or of the faith community. They are the voices of Justice Sandra Day O'Connor, Reverend Pat Robertson, George Will, former FBI Director William Sessions, Republican Governor George Ryan, and Democratic Governor Parris Glending. The voices of those questioning our application of the death penalty are growing in number, and they are growing louder. And while we examine the flaws in our death penalty system, we cannot help but note that our use of the death penalty stands in stark contrast to the majority of nations, which have abolished the death penalty in law or practice. There are now 111 countries that have abolished the death penalty in law or in practice. The European Union denies membership in the alliance to those nations that use the death penalty. In fact, it passed a resolution calling for the immediate and unconditional global abolition of the death penalty, and it specifically called on all states within the United States to abolish the death penalty. This is significant because it reflects the unanimous view of a group of nations with which the United States enjoys the closest of relationships. On February 5, 2003, the International Court of Justice, ICJ, ruled unanimously that the United States must temporarily stay the execution of three Mexican citizens on death row in Texas and Oklahoma. There are currently 112 foreign nationals on death row in this country. Under Article 36 of the 1963 Vienna Convention on Consular Relations, local authorities are required to notify all detained foreigners ``without delay'' of their right to have their consulate informed of their detention. In most cases, this international law is not being followed. In fact, only seven cases of 152 reported death sentences have been identified as meeting complete compliance with Article 36 requirements. The purpose of this law is to ensure that foreign nationals are allowed time to secure adequate counsel during the critical stages of their cases. The February ruling of the ICJ was based on the need for an investigation into whether the foreign nationals on death row were ever given their right to legal assistance from their home governments. What is even more troubling in the international context is that the United States is now one of only seven countries that imposes the death penalty for crimes committed by juveniles. So, while a May 2002 Gallup poll found that 69 percent of Americans oppose the death penalty for those under the age of 18, we are one of only seven nations on this earth that puts to death people who were under 18 years of age when they committed their crimes. The other are Iran, the Democratic Republican of the Congo, Pakistan, Nigeria, Saudi Arabia and Yemen. In the last decade, the United States has executed more juvenile offenders than all other nations combined, and in the last three years, only four nations have executed juvenile offenders: Iran, the Congo, Pakistan, and the United States. Iran, the Congo, and Pakistan are countries that are often criticized for human rights abuses. We should remove any grounds for charges that human rights violations are taking place on our own soil by halting the execution of people who were not even adults when they committed the crimes for which they were sentenced to die. No one can reasonably argue that executing child offenders is a normal or acceptable practice in the world community. And I do not think that we should be proud that the United States is the world leader in the execution of child offenders. As we begin a new year and another Congress, our society is still far from fully just. The continued use of the death penalty shames us. The penalty is at odds with our best traditions. It is wrong and it is immoral. The adage ``two wrongs do not make a right,'' applies here. Our nation has long ago done away with other barbaric punishments like whipping and cutting off the ears of suspected criminals. Just as our nation did away with these punishments as contrary to our humanity and ideals, it is time to abolish the death penalty as we seek justice in this new century. And it's not just a matter of morality. The continued viability of our justice system as a truly just system requires that we do so. And our Nation's striving to remain the leader and defender of freedom, liberty and equality demands that we do so. Abolishing the death penalty will not be an easy task. It will take patience, persistence, and courage. As we work to move forward in a rapidly changing world, let us leave this archaic practice behind. I ask my colleagues to join me in taking the first step in abolishing the death penalty in our great Nation. I also call on each State that authorizes the use of the death penalty to cease this practice. Let us step away from the culture of violence and restore fairness and integrity to our criminal justice system. I ask unanimous consent that the text of the bill be printed in the Record.