Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, as the debate over the FISA legislation comes to a conclusion, and as a member of the Intelligence Committee for 7\1/2\ years, I would like to comment once again on why I support this bill. Let there be no doubt: 7 years after 9/11, our country continues to face serious threats. There are some who seek to do us grave harm. So there is no more important need than obtaining accurate, actionable intelligence to help prevent such an attack. At the same time, there have to be strong safeguards to ensure that the Government does not infringe on Americans' constitutional rights. I believe this bill strikes an appropriate balance. It protects Americans and their privacy rights. This legislation is certainly better than the Protect America Act in that regard and makes improvements over the 1978 FISA law. This bill provides for repeated court review of surveillance done for intelligence purposes. It ends, once and for all, the practice of warrantless surveillance. It protects Americans' constitutional rights both at home and abroad. It provides the Government flexibility to protect our Nation. It makes it crystal clear that FISA is the law of the land--and that this law must be obeyed. For more than 5 years, President Bush ran a warrantless surveillance program--called the terrorist surveillance program--outside of the law. The administration did not have to do this. This specific program could have been carried out under FISA--and I believe it should have been. With this bill, we codify and clarify that this limited, intelligence program will be carried out under the law. This legislation allows the Government to collect information from members of specific terrorist groups or specific foreign powers. It is focused on collecting the content of communications from specific people. If those people are Americans, a warrant is required. Period. So today, we are faced with three options: No. 1. We can pass this bill. It is comprehensive and improves protections for U.S. persons and updates the FISA law to meet today's national security challenges; or No. 2. We can extend the Protect America Act. This bill was a stop- gap measure passed last August for a 6-month temporary period to provide time to develop this legislation. It was meant to be temporary, and it should be only temporary. No. 3. We can do nothing. If we do not pass legislation before mid- August, America will essentially be laid bare--unable to gather the critical intelligence that we need. We will lose the ability to collect information on calls into and out of the United States from specific terrorist groups. The fact is, like it or not, the collection of signals intelligence is indispensable if we are to prevent another attack on our homeland. Given these three options, I think the choice is clear. The legislation is a significant improvement over the Protect America Act and over the 1978 FISA legislation. Let me indicate certain substantial improvements: This bill ends warrantless surveillance. Except in rare emergency cases, all surveillance has to be conducted pursuant to a court order. The FISA Court reviews the Government's procedures and applications before surveillance happens. This bill strengthens the court's review. Not only must the FISA Court approve any surveillance before it is started, this court is given more discretion, with a higher standard of review, over the Government's proposals. The Protect America Act limited the court to a rubberstamp review. This bill changes that. This bill requires that surveillance be subject to court-approved minimization. In 1978, Congress said that the Government could carry out surveillance on U.S. persons under a court warrant but required the Government to minimize the amount of information on those Americans who get included in the intelligence reporting. In practice, this actually means that the National Security Agency only includes information about a U.S. person that is strictly necessary to convey the intelligence. Most of the time, the person's name is not included in the report. That is the minimization process. If an American's communication is incidentally caught up in electronic surveillance while the Government is targeting someone else, minimization protects that person's private information. Now, the Protect America Act did not provide for court review over this minimization process at all. But this bill requires the court in advance to approve the Government's minimization procedures prior to commencing with any minimization program. That is good. That is the third improvement. This bill prohibits reverse targeting. There is an explicit ban on reverse targeting. Now, what is reverse targeting? That is the concern that the National Security Agency could get around the warrant requirement. If the NSA wanted to get my communications but did not want to go to the FISA Court, they might try to figure out who I am talking with and collect the content of their calls to get to me. This bill says you cannot do that. You cannot reverse target. It is prohibited. This was a concern with the Protect America Act, and it is fixed in this bill. This bill goes further than any legislation before it in protecting U.S. person privacy rights outside of the United States. It requires the executive branch to get a warrant anytime it seeks to direct surveillance of collected content from a U.S. person anywhere in the world. Previously, no warrant was required for content collection outside the United States. Finally, there are numerous requirements in the bill for various review of the surveillance activities by agency heads and by inspectors general. The FISA Court and the Congress will be kept fully informed on the operations of this program in the future. Finally, exclusivity. Mr. President, I have spoken multiple times on this floor about the importance of FISA's exclusivity provisions. Before 1978, there was no check on the President's ability to conduct electronic surveillance. However, in 1978, Congress passed FISA, intending it to be the only way. Congress intended that FISA would be the only way--the exclusive means--to conduct surveillance on U.S. persons in the United States for foreign intelligence purposes. President Carter acknowledged that when he signed the bill. Nonetheless, this administration took the position that FISA was not exclusive. First it stated that FISA didn't apply to these particular surveillance activities. Then it said that Congress gave it authority through the Authorization for the Use of Military Force in Afghanistan. Then it said that the President couldn't be bound by an act of Congress because he had his own authority under the Constitution. I reject all of these arguments. And now a Federal court has addressed the subject of exclusivity head-on. On July 2, Chief Judge Vaughn Walker of the U.S. District Court for the Northern District of California delivered a decision in a case brought against the U.S. Government for its surveillance. Judge Walker wrote: Congress appears clearly to have intended to--and did-- establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch's authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities. (M:06-cv-01791-VRW, p. 23) These are powerful words in the opinion. So it is not just clear legislative intent, it is the current judicial position that FISA was and is exclusive. Yet, before the recess, it was asserted on the floor that the President has authority under article II of the Constitution to go around FISA. He does not, in my view. Moreover, they claim that the exclusivity language in the bill acknowledges the President's constitutional authority to conduct electronic surveillance outside of FISA. It does not. As the author of this language, let me state emphatically that the clear intent of the language is to bind the Executive to this law. Now, certain Senators are contending that this exclusivity language would allow the President to go outside of FISA. Let me be clear: this provision is not intended to, nor does it, provide or recognize any new authority to conduct electronic surveillance in contravention of FISA. It was drafted very carefully with input and agreement from people from both sides of the Intelligence Committee and the Judiciary Committee, the Department of Justice, and the Office of the Director of National Intelligence. The only way the President can move outside of FISA will be with another specific statute, passed by both Houses and signed by the President. In summary, the exclusivity language in this bill absolutely does not recognize the President's claimed ``Article II'' authorities to conduct surveillance in contravention of FISA or any other law. The bottom line is that FISA has always been the exclusive means to conduct electronic surveillance, and it continues to be the exclusive means. And no President, now or in the future, has the authority to move outside the law. Finally, Mr. President, I want to set straight who in Congress was notified about the program and when. Some are saying that the Congress was briefed. This is not true. Eight Members of the House and Senate were briefed on the program around the time of its inception, shortly after September 11, 2001: the House and Senate leadership and the chairmen and ranking members of the Intelligence Committees. The 13 rank-and-file members of the Senate Intelligence Committee, who by law are to be kept ``fully and currently informed'' of intelligence activities, were not briefed until well after the program was publicly disclosed in the New York Times in December 2005--4 years later. I want to make this crystal clear. The chairman and the ranking member of the Judiciary Committee--which shares jurisdiction over FISA--were not briefed until a significant period of time after the full membership of the Intelligence Committee was notified. Finally, I want to say a few words about immunity. Let me be clear, this particular immunity language is not ideal. I would have approached this issue differently. When the legislation was before the Senate in February, I moved an amendment to require that the FISA Court conduct a review of whether the telecommunications companies acted lawfully and in good faith. Unfortunately, my amendment was not adopted, but I continue to believe it is the appropriate standard. I have cosponsored an amendment by Senator Bingaman that would stay action on all pending lawsuits until 90 days after Congress receives a report, required elsewhere in this bill, by the relevant inspectors general on the President's surveillance program. That would give Congress a chance to decide on immunity based on a third-party review. If lawmakers took no action within 90 days, the provisions would go into effect. I have spent a great deal of time reviewing this matter. I have read the legal opinions written by the Office of Legal Counsel at the Department of Justice. I have read the written requests to telecommunications companies. I have spoken to officials inside and outside the Government, including several meetings with the companies alleged to have participated in the program. The companies were told after 9/11 that their assistance was needed to protect against further terrorist acts. This actually happened within weeks of 9/11. I think we can all understand and remember what the situation was in the 3 weeks following 9/11. The companies were told the surveillance program was authorized and that it was legal. I am one who believes it is right for the public and the private sector to support the Government at a time of need. When it is a matter of national security, it is all the more important. I think the lion's share of the fault rests with the administration, not with the companies. It was the administration who refused to go to the FISA Court to seek warrants. They could have gone to the FISA Court to seek these warrants on a program basis, and they have done so subsequently. So I am pleased this bill includes independent reviews of the administration's actions to be conducted by the inspectors general of the relevant departments. This bill does provide a limited measure of court review. It is not as robust as my amendment would have provided, but it does provide an opportunity for the plaintiffs to be heard in court, and it provides an opportunity for the court to review these request documents. Mr. President, this is not a perfect bill. It is the product of compromise designed to make sure that it provides the needed intelligence capabilities and the needed privacy protections. I think the bill strikes that balance and that the Nation will be made more secure because of it.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. That was the intent.

Mrs. FEINSTEIN. Mr. President, it is my understanding I am next in the order. I ask unanimous consent that following my presentation the Senator from Vermont be recognized on our side. I know Senator Chambliss is here on the Republican side and wishes to speak.

Mrs. FEINSTEIN. Thank you very much, Mr. President. Mr. President, I begin my remarks by thanking the chairman of the Intelligence Committee, Senator Rockefeller, and the vice chairman of the Intelligence Committee, Senator Bond, the House Speaker, and the House leadership for their distinguished work on this piece of legislation. This has not been easy. It is certainly not without controversy. There are some major challenges to work through. I want to begin by putting my remarks, at least, in context. There is no more important requirement for national security than obtaining accurate, actionable intelligence. At the same time, there have to be strong safeguards in place to ensure that the Government does not infringe on Americans' constitutional rights. Yet if Congress does not act and pass this bill, as it was passed overwhelmingly in the House, both of these goals, I believe, are in jeopardy. Here is why. If this bill does not pass, our Nation would likely be forced to either extend the Protect America Act or leave the Nation bare until a new bill can be written. Neither of these are good options. As I will describe, the Protect America Act does not adequately protect Americans' constitutional rights. It was written to be a temporary measure for 6 months, and it expired on February 5. What many people do not understand is that surveillance conducted under the Protect America Act will cease by the middle of August. It will be impossible to write a new bill, to get it past both Houses, to have it signed by the President in time to meet this deadline. If that bill expires without this Congress passing new legislation, we will be unable to conduct electronic surveillance on a large number of foreign targets. In other words, our intelligence apparatus will be laid bare and the Nation will go into greater jeopardy. I truly believe that. The FISA legislation of 1978 cannot accommodate this number of targets. It is simply inadequate for this new task due to changes in technology and the communications industry. That is precisely why FISA needs to be modernized. So taking no action means we will be opening ourselves, in my view, to the possibility of major attack. This is unacceptable. So as I see it, our choice is a clear one: We either pass this legislation or we extend the Protect America Act. For me, this legislation is much the better option. This bill, in some respects, improves even on the base bill, the 1978 Foreign Intelligence Surveillance Act. It provides clear protections for U.S. persons both at home and abroad. It ensures that the Government cannot conduct electronic surveillance on an American anywhere in the world without a warrant. No legislation has done that up to this point. I think the improvements in this bill over the Protect America Act and the 1978 legislation are important to understand, and I wish to list a few. First, prior court review. This bill ensures that there will be no more warrantless surveillance. Now, why do I say this? Under the Protect America Act--which is expiring, but we are still collecting surveillance under it for now--the intelligence community was authorized to conduct electronic surveillance for a period of 4 months before submitting an application for a warrant to the FISA Court. Surveillance could actually proceed for 6 months before there was a warrant. Under this bill, the Government must submit an application and receive a warrant from the FISA Court before surveillance begins. No more warrantless surveillance. This is, in fact, a major point. In emergency cases, there can be a short period of collection--up to 7 days--as the application is prepared. There has been a provision for emergency cases under FISA for some 30 years now. So that is prior court review for a U.S. person anywhere in the world if content is collected. Meaningful court review. This bill strengthens court review. Under the Protect America Act, the Government submitted to the FISA Court its determination that procedures were in place to ensure that only people outside the United States would be targeted. The court could only reject an application for a warrant if it found that determination to be ``clearly erroneous.'' This bill returns to the traditional FISA standard, empowering the court to decide whether the Government's determination is ``reasonable.'' This is a higher standard of review, so the court review under this bill is meaningful. Next, minimization. These first two improvements ensure that the Government will only be targeting people outside the country. That is good, but it is not enough. There is always the possibility of someone outside the country talking to a U.S. person inside the country. The bill addresses this with a process known as minimization. In 1978, Congress said that the Government could do surveillance on U.S. persons under a court warrant, but required the Government to minimize the amount of information on those Americans who get included in the intelligence reporting. In practice, this actually means that the National Security Agency only includes information about a U.S. person that is strictly necessary to convey the intelligence. Most of the time, the person's name is not included in the report. That is the minimization process. If an American's communication is incidentally caught up in electronic surveillance while the Government is targeting someone else, minimization protects that person's private information. Now, the Protect America Act did not provide for court review over this minimization process at all. But this bill requires the court in advance to approve the Government's minimization procedures prior to commencing with any minimization program. That is good. That is the third improvement. Fourth, reverse targeting. There is an explicit ban on reverse targeting. Now, what is reverse targeting? That is the concern that the National Security Agency could get around the warrant requirement. If the NSA wanted to get my communications but did not want to go to the FISA Court, they might try to figure out who I am talking with and collect the content of their calls to get to me. This bill says you cannot do that. You cannot reverse target. It is prohibited. This was a concern with the Protect America Act, and it is fixed in this bill. Those are four reasons--good reasons. Here is a fifth: U.S. person privacy outside the United States. This bill does more than Congress has ever done before to protect Americans' privacy regardless of where they are, anywhere in the world. Under this bill, the executive branch will be required to obtain a warrant any time it seeks to direct surveillance at a U.S. person anywhere in the world. So any U.S. person anywhere in the world is protected by the requirement that a warrant must be received from the Foreign Intelligence Surveillance Court before electronic surveillance can begin. Previously, FISA only covered people inside the United States. The Protect America Act did the same thing. Now, also under this bill, there will be reviews of surveillance authorities by the Director of National Intelligence, the Attorney General, the heads of all relevant agencies, and the inspectors general of all relevant agencies on a regular basis, and the FISA Court and the Congress will receive the results of those reviews. So there will be regular reporting from the professionals in the arena on how this bill is being followed through on--how electronic surveillance is being carried out worldwide. The Intelligence and Judiciary Committees will receive those reports. That, too, is important. Also, under this bill, there will be a retrospective review of the President's Terrorist Surveillance Program. That is the program that has stirred the furor. The bill requires an unclassified report on the facts of the program, including its limits, the legal justifications, and the role played by the FISA Court and any private actors involved. This will provide needed accountability. In summary, all intelligence collection under the Terrorist Surveillance Program will be brought under court review and court orders. Everything I have described brings this administration back under the law. There is no more Terrorist Surveillance Program. There is only court-approved, Congressionally reviewed collection. But what is to keep this administration or any other administration from going around the law again? The answer is one word, and it is called exclusivity. It means that the Foreign Intelligence Surveillance Act is the only, the exclusive, means for conducting electronic surveillance inside the United States for foreign intelligence purposes. The exclusivity language in this bill is identical in substance to the amendment I offered in February, which received 57 votes in this Senate. It is section 102 of this bill. This language reiterates what FISA said in 1978, and it goes further. Here is what this bill says: Never again will a President be able to say that his authority--or her authority, one day, I hope--as Commander in Chief can be used to violate a law duly enacted by Congress. Never again can an Executive say that a law passed to do one thing-- such as use military force against our enemies--also overrides a ban on warrantless surveillance. The administration has said that the resolution to authorize the use of military force gave this President the right to go around FISA. Never again can the Government go to private companies for their assistance in conducting surveillance that violates the law. Now, this administration has a very broad view of Executive authority. Quite simply, it believes that when it comes to these matters, the President is above the law. I reject that notion in the strongest terms. I think it is important to review the recent history with this administration to demonstrate why FISA exclusivity is so important. At the very beginning of the Terrorist Surveillance Program, John Yoo, at the Office of Legal Counsel, wrote in a legal opinion that: . . . [u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area--which it has not-- then the statute must be construed to avoid [such] a reading. That was the argument. I believe it is wrong. Congress wrote FISA in 1978 precisely in the field of national security; there are other, separate laws that govern wiretapping in the criminal context. In fact, the Department of Justice has repudiated Yoo's notion. But if the Department admitted that FISA did apply, it found another excuse not to take the Terrorist Surveillance Program to the FISA Court. The Department of Justice developed a new, convoluted argument that Congress had authorized the President to go around FISA by passing the authorization to use military force against al-Qaida and the Taliban. This is as flimsy as the last argument. There is nothing in the AUMF that talks about electronic surveillance or FISA, and I know of not one Member who believed we were suspending FISA when we authorized the President to go to war. But that is another argument we lay to rest with this bill. Here is how we do it. We say in the language in this bill that FISA is exclusive. Now, here is the major part: Only a specific statutory grant of authority in future legislation can provide authority to the Chief Executive to conduct surveillance without a FISA warrant. So we go a step further in exclusivity. We cover what Yoo was trying to argue and what others might argue on behalf of a Chief Executive in the future, by closing the loophole and saying: You need specific statutory authority by the Congress of the United States to go outside the law and the Constitution. The final argument the President has made is that even if FISA was intended to apply, and even if the AUMF didn't override FISA's procedures, he still had the authority as Commander in Chief to disregard the law. Now, I have spoken on the floor before about how the President believes he is above the law and the Youngstown Sheet and Tube Company v. Sawyer case. In that case, Justice Jackson described how the President's power is at the ``lowest ebb'' when he is acting in contravention to the will of the Congress. This bill, again, makes it clear that the will of Congress is that there will be no electronic surveillance inside the United States without a warrant, and it makes clear that any electronic surveillance that is conducted outside of FISA or outside of another express statutory authorization for surveillance is a criminal act. It is criminalized. This is the strongest statement of exclusivity in history. The reason I am describing all this is to build a case of legislative intent in case this is ever litigated, and I suspect it may well be. So, finally, I wish to read into the Record the comments on exclusivity from a June 19, 2008, letter that Attorney General Mukasey and Director of National Intelligence McConnell wrote to the Congress. The letter recognizes that the exclusivity provision in this bill ``goes beyond the exclusive means provision that was passed as part of FISA [in 1978].'' So they essentially admit we are taking exclusivity to a new high. Nevertheless, they acknowledge that the provision in this bill ``would not restrict the authority of the government to conduct necessary surveillance for intelligence and law enforcement purposes in a way that would harm national security.'' I said in February I could not support a bill without exclusivity. This is what keeps history from repeating itself and another President from going outside the law. I believe that with this language we will prevent it from ever happening again. Now, a comment on title II of the bill, which is the telecom immunity section. This bill also creates a legal process that may--and, in fact, is likely to--result in immunity for telecommunications companies that are alleged to have provided assistance to the Government. I have spent a great deal of time reviewing this matter. I have read the legal opinions written by the Office of Legal Counsel at the Department of Justice. I have read the written requests to telecommunications companies. I have spoken to officials inside and outside the Government, including several meetings with the companies alleged to have participated in the program. The companies were told after 9/11 that their assistance was needed to protect against further terrorist acts. This actually happened within weeks of 9/11. I think we can all understand and remember what the situation was in the 3 weeks following 9/11. The companies were told the surveillance program was authorized and that it was legal, and they were prevented from doing their due diligence in reviewing the Government's request. In fact, very few people in these companies--these big telecoms--are actually cleared to receive this information and discuss it. So that creates a very limited universe of people who can do their due diligence within the confines of a given telecommunications company. For the record, let me also address what I have heard some of my colleagues say. At the beginning of the Terrorist Surveillance Program, only four Senators were briefed. The Intelligence Committee was not, other than the Chairman and Vice Chairman. I am one who believes it is right for the public and the private sector to support the Government at a time of need. When it is a matter of national security, it is all the more important. I think the lion's share of the fault rests with the administration, not with the companies. It was the administration who refused to go to the FISA Court to seek warrants. They could have gone to the FISA Court to seek these warrants on a program basis, and they have done so subsequently. It was the administration who withheld this surveillance program from the vast majority of Members of Congress, and it was the administration who developed the legal theories to explain why it could, in fact, go around the law. So I am pleased this bill includes independent reviews of the administration's actions to be conducted by the inspectors general of the relevant departments. All of that said, when the legislation was before the Senate in February, I stated my belief that immunity should only be provided if the defendant companies acted legally, or if they acted in good faith with a reasonable belief that their actions were legal. That is what the law calls for. I moved an amendment to require the court to review the written requests to companies to see whether they met the terms of the law. That law requires that a specific person send a certification in writing to a telecommunications company. That certification is required to state that no court order is required for the surveillance, that all statutory requirements have been met, and that the assistance is required by the Government. Unfortunately, my amendment was not adopted, but I continue to believe it is the appropriate standard. Now, the pending legislation does not assess whether the request made by the Government was, in fact, legal, nor whether the companies had a good-faith and objective belief that the requests were legal. What this bill does provide is a limited measure of court review. It is not as robust as my amendment would have provided, but it does provide an opportunity for the plaintiffs to be heard in court, and it provides an opportunity for the court to review these request documents. I believe the court should not grant immunity without looking into the legality of the companies' actions. So if there is an amendment that does support this, I would intend to vote for it. But I believe the Record should be clear in noting that if this bill does become law, in my view, it does not mean the Congress has passed judgment on whether any companies' actions were or were not legal. Rather, it should be interpreted as Congress recognizing the circumstances under which the companies were acting and the reality that we desperately need the voluntary assistance of the private sector to keep the Nation secure in the future. I believe this bill balances security and privacy without sacrificing either. It is certainly better than the Protect America Act in that regard, and makes improvements over the 1978 FISA law. As I said, if a new bill is not in place by mid-August, the Nation will be laid bare and unable to collect intelligence. This bill provides for meaningful and repeated court review of surveillance done for intelligence purposes. It ends, once and for all, the practice of warrantless surveillance, and it protects Americans' constitutional rights both at home and abroad. It provides the Government with the flexibility it needs under the law to protect our Nation. It makes it crystal clear that this is the law of the land and that this law must be obeyed. I yield the floor.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I thank you very much. I particularly salute the Senator from Maryland. I thank her for her leadership of our group of Democratic women. Senator Mikulski has, from the get-go, been there for the women of the Senate. This is the second time I have participated in this Checklist for Change, which she has put together. I also salute Senator McCaskill, who was on the floor, who has brought a very talented dimension to our group of women. I think, as the other Democratic women as well come to the floor to discuss this Checklist for Change, you are going to see one thing; and that one thing is, we are all very committed to this country and very committed to see this country do the right thing by her people. So it is with a great deal of pleasure that I participate in this effort. I thank both of them and the women who will come after me speaking as well. My comments are forged by 15 years on the Senate Judiciary Committee. With the exception of Senator Moseley-Braun for a short period of time, I am the only woman who has served in history on the Judiciary Committee of the Senate and also serving 7 years as a member of the Intelligence Committee. I have always taken great stock in the fact that the United States of America has been a beacon of hope because people all over the world look to American justice and American human rights for inspiration. We have represented not only a brighter future for people, but we have represented a government of law, a government under the Constitution, a government by the people, for the people, with justice for all--not just for a certain few but all. Now that beacon has been dimmed. Despite President Bush's promise that the United States would fight the war on terror consistent with American values and ``in the finest traditions of valor,'' the decision was made, as Vice President Cheney said in 2001, to ``go to the dark side.'' Indeed, this administration has put our Nation on the wrong track in so many ways, including: creating a prisoner of war detention facility at Guantanamo Bay with a separate, lesser system of justice--now repudiated by the Supreme Court; authorizing interrogation techniques that constitute torture; reopening the nuclear door by seeking to develop low-yield battlefield nuclear weapons and 100-kiloton nuclear bunker busters; countenancing, for the first time, the use of nuclear weapons as a first strike against a nonnuclear threat, if chemical or biological weapons were threatened--not used but threatened--against the United States; preemptively invading Iraq, under the guise of weapons of mass destruction and a false nexus to al-Qaida. So, today, we see America's credibility in the world diminished, and the administration's policies have become a recruiting tool for our enemies. So, in 7\1/2\ years, this great country has gone from a nation embraced to a nation often tarnished. Yes, the time has come for a change. The time has come to: lay out an exit strategy in Iraq so we can begin to bring our people home; close Guantanamo, shut it down. The Secretary of Defense says shut it down. The former Secretary of State says shut it down. Governor Kean, Congressman Hamilton, a litany of four-star officers and flag officers have said shut it down. It does not become America's values. The time has come to stop America's use of torture; establish a uniform standard for detentions and interrogations across our Government. This is part of the Senate's Intelligence authorization bill, and it will remain part of this bill. That bill essentially says all elements of the American Government will utilize the Army Field Manual and the procedures therein, both the prohibitions on eight specific items of torture as well as specific techniques to move ahead. The time has come to use robust diplomacy; create coalitions; listen to allies; talk with adversaries. This makes us stronger, not weaker. The time has come to develop a new, sensible nuclear weapons policy, so we do not encourage the very kind of proliferation we seek to prevent. Yes, the time has come for change. The time has come to restore America's credibility as a moral and just nation, dedicated to liberty and justice. We are the greatest military and economic power the world has ever seen. Our global influence is unmatched. For the past half century, our country has embraced international cooperation, not out of vulnerability or weakness but from a position of strength.

Mrs. FEINSTEIN. Mr. President, if I can finish with this last statement. Our strength as a nation emanates not just from our power but from our moral stature and our principled stand for truth, justice, and freedom. It must be restored. I say to the Presiding Officer, thank you for your indulgence. Mr. President, I see the distinguished Senator from Louisiana, whom I also compliment. I see my fellow colleague from California. They are part of Senator Mikulski's Checklist for Change.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I wish to announce that the Committee on Rules and Administration will meet on Wednesday, June 18, 2008, at 10 a.m., to hear testimony on Improving Energy Efficiency, Increasing the Use of Renewable Sources of Energy, and Reducing the Carbon Footprint of the Capitol Complex. For further information regarding this hearing, please contact Howard Gantman at the Rules and Administration Committee, 224-6352.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today I am introducing a private relief bill on behalf of Jorge Rojas Gutierrez, his wife, Oliva Gonzalez Gonzalez and their son, Jorge Rojas Gonzalez. The Rojas family are Mexican nationals living in the San Jose area of California. The story of the Rojas family is compelling and I believe they merit Congress' special consideration for such an extraordinary form of relief as a private bill. Mr. Rojas and his wife Ms. Gonzalez originally came to the United States in 1990 when their son Jorge Rojas, Jr. was just 2 years old. In 1995, they left the country to attend a funeral, and then re-entered on visitor's visas. The family has since expanded to include a son, Alexis Rojas now age 15 and a daughter Tania Rojas now age 14. Since arriving in the United States, this family has dedicated themselves to community involvement, a strong work ethic and volunteerism. They have been paying taxes since their arrival in 1990. The family has been described by their friends and colleagues as a ``model American family.'' I would like to tell you some more about each member of the Rojas family. Mr. Rojas is a hard-working individual who has been employed by Valley Crest Landscape Maintenance in San Jose, California, for the past 14 years. Currently, Mr. Rojas works on commercial landscaping projects. He is well-respected by his supervisor and his peers. In addition to supporting his family, Jorge has volunteered his time and talents to provide modern green landscaping and a recreational jungle gym to Sherman Oaks Community Charter School, where his two youngest children attend school. Ms. Gonzalez, in addition to raising her three children, has been very active in the local community. She has worked to help other immigrants assimilate to American life by working as a translator and a tutor for immigrant children at Sherman Oaks Community Charter School and the Y.M.C.A. Kids after-school program. She has also coached soccer teams, and has recently directed a Second Harvest food drive for the school. Ms. Gonzalez also devotes many hours of her time to the organization People Acting in Community Together PACT, where she works to prevent crime, gangs and drug dealing in San Jose neighborhoods and schools. Perhaps one of the most compelling reasons for permitting the family to remain in the United States is the impact their deportation would have on their three children. Two of the children, Alexis Rojas age 15 and Tania Rojas age 14, are U.S. citizens. Jorge Rojas, Jr. has lived in the United States since he was a toddler. For these children, this country is the only country they really know. Jorge Rojas, Jr. is currently working at Jamba Juice. He graduated from Del Mar High School in 2007 and has been accepted to San Jose City College. However, his dreams and aspirations have been placed on hold because he remains subject to deportation. Alexis and Tania Rojas are students at Sherman Oaks Community Charter School. They are described by their teachers as ``fantastic, wonderful and gifted'' students. In fact, the principal at Sherman Oaks has described all three of the children as ``honest, hard-working academic honor students'' and has commended all of them for their on-campus leadership. It seems so clear to me that this family has embraced the American dream and their continued presence in our country would do so much to enhance the values we hold dear. I have received 30 letters from the community in support of this family. Enactment of the legislation I have introduced today will enable the Rojas family to continue to make significant contributions to their community as well as the United States. I ask my colleagues to support this private bill. Mr. President, I ask unanimous consent that the text of the bill and letters of support be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today I am introducing a private relief bill on behalf of Jorge Rojas Gutierrez, his wife, Oliva Gonzalez Gonzalez and their son, Jorge Rojas Gonzalez. The Rojas family are Mexican nationals living in the San Jose area of California. The story of the Rojas family is compelling and I believe they merit Congress' special consideration for such an extraordinary form of relief as a private bill. Mr. Rojas and his wife Ms. Gonzalez originally came to the United States in 1990 when their son Jorge Rojas, Jr. was just 2 years old. In 1995, they left the country to attend a funeral, and then re-entered on visitor's visas. The family has since expanded to include a son, Alexis Rojas now age 15 and a daughter Tania Rojas now age 14. Since arriving in the United States, this family has dedicated themselves to community involvement, a strong work ethic and volunteerism. They have been paying taxes since their arrival in 1990. The family has been described by their friends and colleagues as a ``model American family.'' I would like to tell you some more about each member of the Rojas family. Mr. Rojas is a hard-working individual who has been employed by Valley Crest Landscape Maintenance in San Jose, California, for the past 14 years. Currently, Mr. Rojas works on commercial landscaping projects. He is well-respected by his supervisor and his peers. In addition to supporting his family, Jorge has volunteered his time and talents to provide modern green landscaping and a recreational jungle gym to Sherman Oaks Community Charter School, where his two youngest children attend school. Ms. Gonzalez, in addition to raising her three children, has been very active in the local community. She has worked to help other immigrants assimilate to American life by working as a translator and a tutor for immigrant children at Sherman Oaks Community Charter School and the Y.M.C.A. Kids after-school program. She has also coached soccer teams, and has recently directed a Second Harvest food drive for the school. Ms. Gonzalez also devotes many hours of her time to the organization People Acting in Community Together PACT, where she works to prevent crime, gangs and drug dealing in San Jose neighborhoods and schools. Perhaps one of the most compelling reasons for permitting the family to remain in the United States is the impact their deportation would have on their three children. Two of the children, Alexis Rojas age 15 and Tania Rojas age 14, are U.S. citizens. Jorge Rojas, Jr. has lived in the United States since he was a toddler. For these children, this country is the only country they really know. Jorge Rojas, Jr. is currently working at Jamba Juice. He graduated from Del Mar High School in 2007 and has been accepted to San Jose City College. However, his dreams and aspirations have been placed on hold because he remains subject to deportation. Alexis and Tania Rojas are students at Sherman Oaks Community Charter School. They are described by their teachers as ``fantastic, wonderful and gifted'' students. In fact, the principal at Sherman Oaks has described all three of the children as ``honest, hard-working academic honor students'' and has commended all of them for their on-campus leadership. It seems so clear to me that this family has embraced the American dream and their continued presence in our country would do so much to enhance the values we hold dear. I have received 30 letters from the community in support of this family. Enactment of the legislation I have introduced today will enable the Rojas family to continue to make significant contributions to their community as well as the United States. I ask my colleagues to support this private bill. Mr. President, I ask unanimous consent that the text of the bill and letters of support be printed in the Record.

Mrs. FEINSTEIN

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

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to speak as in morning business.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I thank the Chair. This morning, the Supreme Court struck down as unconstitutional the portion of the Military Commissions Act of 2006 which denied habeas corpus rights to detainees at Guantanamo Bay. In making its decision, the Supreme Court has recognized that detainees at Guantanamo cannot be denied the fundamental legal right to habeas corpus, enshrined in the Constitution. Writing for the majority, Justice Kennedy wrote: The laws and the Constitution are designed to survive, and to remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. I think that is a very important statement. I think it crystallizes a lot of the debates this Senate has been having over the past 5 to 6 years. It recognizes the importance of the rule of law, one of the most fundamental values our country was founded upon. Detainees at Guantanamo have been in a legal quagmire since 2002. As the Court recognized, some have been held without court review for more than 6 years--6 years--many in isolation for long periods of time. The Court specifically stated it was not ruling on the issue of whether the writ for habeas corpus should be issued or whether detainees should be released. Rather, the decision focused on the fact that the detainees are entitled to the fundamental right of habeas corpus as a means to review whether they are being properly held. Four times now the Supreme Court has stepped in and struck down the Bush administration's policies at Guantanamo. Four times. In the Hamdi and Rasul decisions, the Court stated that U.S. law applied to Guantanamo and that detainees had to be determined enemy combatants before they could be held. In the Hamdan decision, the Court struck down the administration's claim that the Geneva Conventions did not apply to the detainees at Guantanamo and repudiated the legal framework the Bush administration tried to construct to handle the trials of detainees. In today's decision, the Supreme Court has once and for all made it clear that even at Guantanamo our constitutional principles remain sound. It also recognizes that President Bush's repeated assertion that he has essentially unchecked powers in the war on terror is simply wrong. Guantanamo Bay has been a case study in what not to do in the war on terror. Consider all the early choices this administration has made: to deny the protections of the Geneva Conventions, to establish military tribunals based on the theory of unchecked Presidential power, to deny habeas corpus and, finally, to reverse decades of old precedent and authorize the use of coercive interrogation and torture. These decisions by the Bush administration and its operation of Guantanamo will go down in history as a black mark on the United States, decisions where this administration and this President simply forgot--or worse ignored--our own values and laws. Today's decision provides another reason why Guantanamo should be closed. Closing this facility is critical to our Nation's credibility and stature and our ability to conduct foreign policy and counterterrorism operations worldwide. If there is one thing that is very clear, the credibility of the United States as a bastion of law, of constitutional rights, and of human rights has gone downhill all over the world. As I have said on this floor before, I have never seen a time in my lifetime where Americans are thought so poorly of by citizens of countries that are our firm allies as well as our adversaries. Let me be clear: I have no sympathy for al-Qaida terrorists, Taliban fighters or anyone else around the world who wishes to harm Americans at home or abroad. But I strongly believe that continuing to operate Guantanamo, in the face of repeated reprimands from the Supreme Court, the stated wishes of senior administration officials, and a tidal wave of congressional and international condemnation, weakens the United States in its effort to fight the war on terror. Last July, I submitted an amendment to the fiscal year 2008 Defense authorization bill to close Guantanamo. I was joined in that amendment by 15 cosponsors: Senators Harkin, Hagel, Dodd, Clinton, Brown, Bingaman, Kennedy, Whitehouse, Obama, Salazar, Durbin, Byrd, Biden, Boxer, and Feingold. I intend to offer this amendment again this year. President Bush, Secretary Gates, Secretary Rice, Colin Powell, 9/11 Commission heads Tom Kean and Lee Hamilton, numerous retired four-star generals and admirals, as well as Senator Obama and Senator McCain, have all expressed their support for closing Guantanamo. It kind of boggles my mind. I was sitting in the Defense Appropriations Subcommittee, when I asked the question of Secretary Gates, and he said: Yes, I am for closing Guantanamo. I have heard Colin Powell say: Yes, I am for closing Guantanamo. I would do it right now. I have heard generals and admirals say: Guantanamo does this Nation no good. Yet nothing changes. So the question of closing the facility is when and not if. Guantanamo, as I have said, is a lightning rod of condemnation around the world, and not just because of a lack of adequate legal rights and remedies. It has also drawn criticism for the treatment of detainees that violates both American and international standards, laws and values. And coercive interrogation techniques undertaken there have failed to yield reliable and usable intelligence. Both the Presiding Officer and I sit on the Senate Intelligence Committee. We hear the classified data which obviously cannot be discussed here. We know there are bad people in Guantanamo, but we also know there are people who are hapless victims, who may have been picked up just because they were in a certain place at a certain time. This week I held a hearing on coercive interrogation techniques being used at Guantanamo. Glenn Fine, the inspector general of the Department of Justice, testified about his report that concluded that over 200 FBI agents observed or heard about military interrogators using a variety of harsh interrogation techniques, including but not limited to stress positions and short shackling, in which a detainee's hands are shackled close to his feet to prevent him from standing or sitting; isolation, sometimes for periods of 30 days or more; use of growling military dogs; twisting a detainee's thumbs back; using a female interrogator to touch or provoke a detainee in a sexual manner. Mr. Fine also argued these techniques are not only shocking but they are less effective and they produce less reliable intelligence than noncoercive means. Experienced FBI interrogators agree. We heard yesterday afternoon-- and it was kind of interesting because the minority apparently exercised a rule that would prevent the hearing from continuing. When I asked the question, why, I found it was because of my hearing, which was to elucidate some, I think, valuable facts and timelines of how all this happened. Fortunately, and thanks to the majority leader who came to the floor and recessed the Senate, we were able to conclude our hearing. One of the people testifying was a former FBI agent by the name of Jack Cloonan. Now, Jack Cloonan has interrogated at least six members of al-Qaida. He testified under oath that he was able to get convictions for three of them and was able to get actionable intelligence for every one of them using noncoercive techniques. As a matter of fact, he said these al-Qaida members were so struck by the process he used, the fairness of the process, they not only gave him information that was valuable, they are now in witness protection programs. I thought that is very relevant information. Why do this if it isn't effective? The conditions at Guantanamo have led to at least 4 documented detainee suicides and another 41 attempted suicides, according to media reports from 2006 and 2007. More recent press accounts discuss how detainees have gone mad during extensive periods of isolation, sleep deprivation, and degrading treatment. Finally, I ask unanimous consent to have printed in the Record following my statement an article from the New York Times, dated April 26, 2008, entitled, ``Detainees' Mental Health is Latest Legal Battle.''

Mrs. FEINSTEIN. Mr. President, the article describes how Salim Hamdan ``has essentially been driven crazy by solitary confinement in an 8- foot-by-12-foot cell, where he spent 22 hours a day, goes to the bathroom, and eats all his meals.'' This is not about abuses from 2002 and 2003, like al-Qahtani and the Abu Ghraib scandal. This is 2008, and I fear it is going to continue as long as Guantanamo is able to operate in its isolated setting, in a highly confined environment, with no visitors and nobody able to go in and talk with inmates. Let me say a little about the status of Guantanamo today. There are approximately 260 detainees being held. They can be divided into roughly three equal groups: those the administration intends on charging with a crime and prosecuting; those the administration says can be transferred to another country, if another country is willing to take custody--and I will admit there are problems there. There are detainees, I know, who are awaiting repatriation to their own country, if they will take them back. In many cases, they will not take them, and that is a problem. We, on the Intelligence Committee, need to pay attention to this and find a solution to it. Third are those who can't be tried for a crime but who are deemed too dangerous to transfer and who, presumably, will be held indefinitely without charge. I think we need to provide a legal framework for that kind of administrative detention so that the detainees in administrative detention have certain due process rights to ensure they can know why they are there, that they can have an opportunity to rebut the charges, and that they can have access to counsel. Since the end of 2001, nearly 500 detainees have been transferred back to the custody of their home nations. A group of seven Chinese Uighers, who had committed no crime, were sent to Albania, where they are now held as refugees in poor conditions. Exactly one man, in the 6 years Guantanamo has existed as a detention facility, has been convicted of a crime. He, of course, is David Hicks, a kangaroo skinner from Australia, who pled guilty in order to get out of Guantanamo. He has since been released by the Australian Government. I believe there are 19 more detainees against whom charges have been brought. The military commissions process is in turmoil. It is my hope that with today's ruling these cases will be moved to the district and circuit courts rather than the deeply flawed and separate system of justice set up in the Military Commissions Act, which I voted against, and I am very pleased I did so. Guantanamo began in the Bush administration, and it should end in the Bush administration. At every turn, the Supreme Court has struck down President Bush's policies with respect to Guantanamo. John Adams said that ``we are a Nation of laws, not men.'' This administration has turned that concept on its head, with President Bush deciding that he alone should make the legal and policy decisions in the fight against terrorism, and that the rule of law does not apply. In rejecting this notion, the Supreme Court's decision today once again reiterated that it would be wrong ``to hold that the political branches may switch the Constitution on or off at will.'' I hope the administration hears that. To me, this clearly indicates that the President's article 2 powers are limited, that his powers as Commander in Chief are limited, and that his powers under the war resolution and the authorization for use of military force in Afghanistan are limited, and he must follow the Constitution of the United States. That is what this decision says to me. So I commend the Court for its decision. I hope the President will recognize this. I suggest that he should. I suggest that after being repeatedly rebuffed by the Supreme Court, the administration come to us and say that the time has come to close Guantanamo. I would expect, now that we have both potential presidential nominees supporting closure of Guantanamo, we will close it. The Secretary of Defense, the former Secretary of State, the present Secretary of State, the co-chairs of the 9/11 Commission, Governor Kean and Representative Hamilton, and dozens of admirals and generals, recommend the closure of Guantanamo. When I present this amendment on the Defense authorization bill, I hope I will be able to press this toward a successful vote. Signing Authorization

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the Senator from Montana, Mr. Tester, be authorized to sign the enrollment of H.R. 6124.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise to introduce The Oil Speculation Control Act, a bill to reduce the impact of excessive speculation in the oil markets. The legislation is cosponsored by Senator Ted Stevens. Last week the price of oil hit $138 per barrel. A commodity that used to be priced at $11 a barrel is now swinging $11 in a single day. Yesterday it jumped $5--supposedly in response to a single Department of Energy report. Gasoline prices now average more than $4.50 in California. Some gas stations have to charge by the half gallon. Their pumps cannot calculate in prices this high. There seems to be no relief in sight for consumers as we enter the summer travel season. In the Farm Bill Congress finally closed the ``Enron Loophole,'' and placed all major electronic trades that could drive energy prices under the watchful eye of the Commodity Futures Trading commission, CFTC. Today I and Senator Levin introduced the Close the London Loophole Act to close another loophole. This bill would bring oversight to American energy commodities being traded beyond our borders. I also joined Senator Durbin in calling for the President to add 100 I enforcement professionals to the ranks of the CFTC. However, these steps are not enough. I believe we must do more to reduce the excessive speculation of institutional investors in oil markets. So today I am introducing the Oil Speculation Control Act. Let me explain what this bill would do. First, it requires CFTC to review the trading practices of institutional investors and their dealers within 30 days: It ensures that their trading is not adversely impacting the market price. It determines whether different regulations are necessary: It proposes to Congress regulations and legislation necessary to prevent the dramatic increase of fuel costs in the futures markets. Second, the bill establishes reporting requirements. It requires institutional investors, such as pension funds or endowments, to report their energy market positions to the CFTC, even when trades are executed by a third party broker. To further increase transparency, it would force CFTC regulations and reports to begin distinguishing between the institutional investors and the ``swaps dealers'' or ``index traders'' who broker their trades. Third, the bill would force CFTC to limit institutional investor and index trader positions, as CFTC limits the positions of more traditional market speculators. Fourth, it prevents CFTC from considering the positions of institutional investors or their brokers to be ``bone fide hedges'' that would be exempt from speculative position limits. Finally, it requires that the Office of the CFTC's Inspector General be removed from the CFTC Chairman's Office and established as an independent office. This bill is necessary because I believe that speculation in oil futures by large institutional investors and index funds is inflating the price of oil. The unconstrained and overwhelming entrance of these new commodity investors, who have bet more than 99 percent of their funds on prices rising, must be controlled. Recent testimony before numerous Congressional Committees indicates that between 2000 and 2002, major institutional investors began to view commodity futures markets as a new ``asset class'' suitable to be used in large financial portfolios. Since 2000, investment fund managers have come to believe that investing in commodities balances a stock portfolio. As Daniel Yergin, one of the Nation's leading energy market experts put it: ``Oil has become the `new gold'--a financial asset in which investors seek refuge as inflation rises and the dollar weakens.'' Never before have so many institutional investors made large scale investments in commodity markets, but from 2003 to 2008, investments in commodity index funds rose from $13 billion to $260 billion. The implications for consumers of this shift are potentially devastating. Unlike gold, energy and agricultural commodities meet essential needs in the everyday lives of average Americans, and the potential risk that investment strategies will push the price of these goods higher during economic downturns presents a threat to the public welfare. I do not believe this is in the best interest of the American public. Under the Commodity Exchange Act, the CFTC must impose speculation limits on the size of energy trader positions. Crude oil speculative positions are limited to a total of 20 million barrels of oil and 3 million barrels of oil in the last three days of a contract. However, it is CFTC's practice to exempt institutional investors from such limits when investors execute their trades through brokers or dealers. This is a mistake. They are not hedging against the risk of changing oil prices, as airlines or utilities frequently must do. They never take delivery of the product. They participate in the oil markets only on paper. This bill will assure that the existing speculation limit powers will constrain the market distortion resulting from this massive influx of capital. It will ensure a regulatory system that limits the size and influence of institutional investor positions in energy markets. Even CFTC has realized that its policy may be mistaken. Last month it announced that it will review the trading practices for index traders in the futures markets to ensure that this type of trading activity is not adversely impacting the price discovery process. They also plan to determine whether different practices should be employed. Today's markets evolve quickly, and we need to make sure our market oversight responds just as quickly. We now know that over the last few years a whole new kind of investor has entered oil markets. Institutional investors only bet that the price will go up. No matter how high the price goes, they pour into the market to push it higher. We have ways to control this. We have speculation limits. But we are not using them. I am introducing this bill to make sure we use the tools we have. As the markets continue to evolve, so must our regulation. I believe the Oil Speculation Control Act takes this step, and I encourage my colleagues to support it. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise to introduce The Oil Speculation Control Act, a bill to reduce the impact of excessive speculation in the oil markets. The legislation is cosponsored by Senator Ted Stevens. Last week the price of oil hit $138 per barrel. A commodity that used to be priced at $11 a barrel is now swinging $11 in a single day. Yesterday it jumped $5--supposedly in response to a single Department of Energy report. Gasoline prices now average more than $4.50 in California. Some gas stations have to charge by the half gallon. Their pumps cannot calculate in prices this high. There seems to be no relief in sight for consumers as we enter the summer travel season. In the Farm Bill Congress finally closed the ``Enron Loophole,'' and placed all major electronic trades that could drive energy prices under the watchful eye of the Commodity Futures Trading commission, CFTC. Today I and Senator Levin introduced the Close the London Loophole Act to close another loophole. This bill would bring oversight to American energy commodities being traded beyond our borders. I also joined Senator Durbin in calling for the President to add 100 I enforcement professionals to the ranks of the CFTC. However, these steps are not enough. I believe we must do more to reduce the excessive speculation of institutional investors in oil markets. So today I am introducing the Oil Speculation Control Act. Let me explain what this bill would do. First, it requires CFTC to review the trading practices of institutional investors and their dealers within 30 days: It ensures that their trading is not adversely impacting the market price. It determines whether different regulations are necessary: It proposes to Congress regulations and legislation necessary to prevent the dramatic increase of fuel costs in the futures markets. Second, the bill establishes reporting requirements. It requires institutional investors, such as pension funds or endowments, to report their energy market positions to the CFTC, even when trades are executed by a third party broker. To further increase transparency, it would force CFTC regulations and reports to begin distinguishing between the institutional investors and the ``swaps dealers'' or ``index traders'' who broker their trades. Third, the bill would force CFTC to limit institutional investor and index trader positions, as CFTC limits the positions of more traditional market speculators. Fourth, it prevents CFTC from considering the positions of institutional investors or their brokers to be ``bone fide hedges'' that would be exempt from speculative position limits. Finally, it requires that the Office of the CFTC's Inspector General be removed from the CFTC Chairman's Office and established as an independent office. This bill is necessary because I believe that speculation in oil futures by large institutional investors and index funds is inflating the price of oil. The unconstrained and overwhelming entrance of these new commodity investors, who have bet more than 99 percent of their funds on prices rising, must be controlled. Recent testimony before numerous Congressional Committees indicates that between 2000 and 2002, major institutional investors began to view commodity futures markets as a new ``asset class'' suitable to be used in large financial portfolios. Since 2000, investment fund managers have come to believe that investing in commodities balances a stock portfolio. As Daniel Yergin, one of the Nation's leading energy market experts put it: ``Oil has become the `new gold'--a financial asset in which investors seek refuge as inflation rises and the dollar weakens.'' Never before have so many institutional investors made large scale investments in commodity markets, but from 2003 to 2008, investments in commodity index funds rose from $13 billion to $260 billion. The implications for consumers of this shift are potentially devastating. Unlike gold, energy and agricultural commodities meet essential needs in the everyday lives of average Americans, and the potential risk that investment strategies will push the price of these goods higher during economic downturns presents a threat to the public welfare. I do not believe this is in the best interest of the American public. Under the Commodity Exchange Act, the CFTC must impose speculation limits on the size of energy trader positions. Crude oil speculative positions are limited to a total of 20 million barrels of oil and 3 million barrels of oil in the last three days of a contract. However, it is CFTC's practice to exempt institutional investors from such limits when investors execute their trades through brokers or dealers. This is a mistake. They are not hedging against the risk of changing oil prices, as airlines or utilities frequently must do. They never take delivery of the product. They participate in the oil markets only on paper. This bill will assure that the existing speculation limit powers will constrain the market distortion resulting from this massive influx of capital. It will ensure a regulatory system that limits the size and influence of institutional investor positions in energy markets. Even CFTC has realized that its policy may be mistaken. Last month it announced that it will review the trading practices for index traders in the futures markets to ensure that this type of trading activity is not adversely impacting the price discovery process. They also plan to determine whether different practices should be employed. Today's markets evolve quickly, and we need to make sure our market oversight responds just as quickly. We now know that over the last few years a whole new kind of investor has entered oil markets. Institutional investors only bet that the price will go up. No matter how high the price goes, they pour into the market to push it higher. We have ways to control this. We have speculation limits. But we are not using them. I am introducing this bill to make sure we use the tools we have. As the markets continue to evolve, so must our regulation. I believe the Oil Speculation Control Act takes this step, and I encourage my colleagues to support it. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Madam President, I rise to speak in support of the Consumer-First Energy Act, and in particular title V, which would increase oil market transparency and accountability. Oil prices continue to set records. Last week the price of oil hit $138 per barrel. Not too long ago $38 seemed like an unheard of price, not $138. Gasoline prices now average above $4 per gallon nationwide. Some gas stations have to charge by the half gallon. Their pumps cannot calculate in prices this high. And there seems to be no relief in sight for consumers as we enter the summer travel season. Energy markets are not working--and speculation is adding an extra $20-$25 per barrel to the price of oil. We must protect these markets from manipulation, excessive speculation and fraud. In the farm bill Congress finally closed the ``Enron loophole,'' and placed all major electronic trades that could drive energy prices under the watchful eye of the CFTC. However, I remain concerned that there are no comparable protections in place when U.S. energy futures are traded on international markets-- presenting yet another regulatory loophole for energy traders to exploit. So title V of this bill would close that loophole and ensure that the trading of all U.S. energy futures--whether on foreign or domestic markets--is done with transparency and with an audit trail. Title V is based upon the Oil Trading Transparency Act, which I introduced recently with Senator Carl Levin. The Oil Trading Transparency Act would close the London loophole, whereby traders of West Texas Intermediate Crude Oil execute trades on an electronic exchange ``located in'' London, England, outside the jurisdiction of American regulators. Specifically: the bill directs the Commodity Futures Trading Commission, CFTC, to ensure that any foreign exchange operating a trading terminal in the United States for the trading of a U.S. energy commodity meets two regulatory requirements that currently apply to U.S. exchanges: (1) It must impose speculative trading limits to prevent price manipulation and excessive speculation, and (2) It must publish daily trading information to ensure market transparency. The bill would also require the CFTC to obtain information from the foreign exchange to enable it to establish an audit trail and determine how much trading in U.S. energy commodities is due to speculation. Today the CFTC's weekly publication of speculation data for U.S. markets lacks any information about the oil trading conducted in London which makes up approximately 30 percent of the trading volume in West Texas Intermediate Crude Oil. Let me explain why this provision is necessary. The United States places limits on speculative energy trades that contribute to high prices. But traders of U.S. crude oil know that they can avoid U.S. limits and transparency requirements by trading crude oil futures on the London's ICE Futures Europe instead of the NYMEX exchange in New York. CFTC acknowledged in a June 2 letter to me that traders can even use London as a refuge from U.S. speculation limits. CFTC's acting chairman wrote: If CFTC instructed an oil trader to reduce the size of his NYMEX West Texas Intermediate crude oil position, the trader would not be prohibited, under either the [Commodity Exchange Act] or the Commission's regulations, from establishing a similar position in the ICE Futures Europe WTI crude oil contract. That regulatory disparity means U.S. traders trading U.S. oil on the London exchange can engage in excessive speculation that affects U.S. prices and not report their trades. The traders can do it by using computer terminals in the United States with direct access to the London exchange. The contracts in London settle on the price in New York, so they are functionally equivalent ``look alike'' contracts. According to CFTC, every single week since 2006 at least one trader has held positions in London above the NYMEX spot month speculative limit of 3 million barrels of oil. Most weeks, five to eight traders have been above these limits, and at one point 22 traders were above the NYMEX limit. And its not only contracts in the spot month. Sixty-four percent of the time since 2006, at least one trader in London has exceeded out month position accountability levels that are set at 20 million barrels of oil in New York. CFTC reports that 48 different traders have been above these limits at one time or another since 2006. This legislation is necessary in order to close this loophole and require that foreign boards of trade that operate trading terminals in our country comply with the same speculation trading limits and reporting requirements that apply to U.S. trades. What is Traded in London? Trading in London is regulated by the British, so some might wonder why we would ask our friends in London to impose American regulatory standards. I believe some of London's contracts matter more to America than England, and we need to make sure they are subject to our position limit system. For example, ICE Futures Europe lists U.S. crude oil--West Texas Intermediate--New England heating oil, and U.S. gasoline contracts. West Texas Intermediate crude oil is produced here, used here, and never leaves the United States. Heating oil and gasoline are refined and used within our borders. ICE Futures Europe is a wholly owned subsidiary of an American company, Atlanta based Intercontinental Exchange, or ICE. Since buying ICE Futures Europe, ICE has shut down the trading floor in London and replaced it with a virtual, electronic floor. Their American and British systems are so integrated that trading ``in London'' recently shut down because an ICE data center in Chicago, IL, lost power. And most importantly, British regulators are accountable to the British people who would naturally prefer that their government use its resources to prevent manipulation in markets that affect British people, not Americans. The British only have 80 people monitoring market abuses, investigating, and enforcing rules in all of their financial markets-- including stocks, bonds, futures, swaps, and currency. Not one of these 80 people is specifically assigned to monitor trading of West Texas Intermediate, American Gasoline, or New England heating oil. This may explain why the CFTC tells me that British regulators are yet to bring a single manipulation case against traders in any of the contracts for U.S. delivery. That is why the audit trail established by this legislation is so important. If CFTC gets trading data from London, it can pursue manipulation and fraud cases under their existing authority. But CFTC needs the records. It needs the data to monitor markets that impact the price of energy in the United States. Bottom Line: CFTC needs this legislation in order to protect American oil markets from manipulation and excessive speculation. In the farm bill we took a major step in closing the Enron loophole. It took us 7 years to close it, and millions of consumers paid the price. This legislation is needed to close a new loophole that opened in 2006 when ICE Futures Europe began listing a U.S. based energy commodity on its exchange in London. If we vote to pass the Oil Trading Transparency Act, we will close the London loophole in only 2 years. Today's markets evolve quickly, and we need to make sure our market oversight responds just as quickly. Let us not wait 6 years to close a loophole so large you could drive an oil tanker through it.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today I am introducing a private relief bill on behalf of Ruben Mkoian, his wife, Asmik Karapetian and their son, Arthur Mkoyan. The Mkoian family are Armenian nationals who have been living and working in Fresno, California for over a decade. The story of the Mkoian family is compelling and I believe they merit Congress' special consideration for such an extraordinary form of relief as a private bill. Let me first start with how the Mkoian family arrived in the United States. While in Armenia, Mr. Mkoian worked as a police sergeant at in a division dealing with vehicle licensing. As a result of his position, he was offered a bribe to register 20 stolen vehicles. He refused the bribe and reported the incident to the police chief. He later learned that his co-worker had registered the vehicles at the request of the chief. After he reported the offense, Mr. Mkoian's supervisor informed him that the department was to undergo an inspection. Mr. Mkoian was instructed to take a vacation during this time period. Mr. Mkoian believed that the inspection was a result of the complaint that he had filed with the higher authorities. During the inspection, however, Mr. Mkoian worked at a store that he owned rather than taking a vacation. During that time, individuals kept entering his store and attempted to damage it and break merchandise. When he threatened to call the police, he received threatening phone calls telling him to ``shut up'' or else he would ``regret it.'' Mr. Mkoian believed that these threats were related to the illegal vehicle registrations occurring in his department because he had nothing else to be silent about. Later that same month, three men grabbed his wife and attempted to kidnap his child, Arthur, on the street. Mrs. Mkoian was told that her husband should ``shut up.'' No one suffered any injuries from the incident. In October 1991, a bottle of gasoline was thrown into the Mkoian's residence and their house was burned down. The final incident occurred on April 1, 1992, when four or five men assaulted Mr. Mkoian in his store. He was beaten and hospitalized for 22 days. Following that experience, Mr. Mkoian left Armenia for Russia, and then came to the United States on a visitor's visa in search of a better life. Two years later he brought his wife Asmik and his then 3- year old son Arthur to the United States, also on visitor's visas. The family applied for political asylum, but the 9th Circuit Court of Appeals denied their request in January 2008. Thus, the family has no further legal recourse by which to remain in the country other than this bill. Since arriving in the United States, the family has thrived. Arthur is now 17 years old and the family has expanded to include Arsen, who is a U.S. citizen. Both Arthur and Arsen are very special children. What is noteworthy about Arthur, is that out of the 562 students graduating from Bullard High School he is one of three valedictorians for the Class of 2008. Today is his graduation day. He has long dreamed of attending the University of California, Davis. He was accepted this past Spring and plans to complete a degree in chemistry. In addition to maintaining a 4.0 grade point average and taking a rigorous academic course load, Arthur also finds the time to volunteer at the St. Agnes Medical Center emergency room. Arsen is following in his older brother's footsteps. At age 12, he stands out among his peers at Kratt Elementary School and has been invited to apply to the magnet Computech Middle School next year. In addition to raising two outstanding children, Mr. and Mrs. Mkoian have maintained steady jobs and have devoted time and energy to the community and their church. Mr. Mkoian has been employed for years at G.A.C. Trucking in Glendale, California. According to his supervisor, he is one of their best employees, having earned a reputation for trustworthiness and skill. His wife, Asmik, has also been working part-time for 4 years at Gottshalks department store. In addition, she has taken classes at Fresno Community College and has completed their Medical Assistant Program. The family are active members of the St. Paul Armenian Church, and Mr. Mkoian is a member of the PTA of the St. Paul Armenian Saturday School. There has been an outpouring of support for this family from their church, the schools their children attend, and the community at large. To date, we have received over 200 letters of support for the family in addition to numerous telephone calls. I also note that I have letters from both Congressman George Radanovich and Jim Costa, requesting that I offer this bill for the Mkoian family. I truly believe that this case warrants our compassion and our extraordinary consideration. I ask my colleagues to support this private bill. Mr. President, I ask unanimous consent that the text of the bill and letters of support be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today I am introducing a private relief bill on behalf of Ruben Mkoian, his wife, Asmik Karapetian and their son, Arthur Mkoyan. The Mkoian family are Armenian nationals who have been living and working in Fresno, California for over a decade. The story of the Mkoian family is compelling and I believe they merit Congress' special consideration for such an extraordinary form of relief as a private bill. Let me first start with how the Mkoian family arrived in the United States. While in Armenia, Mr. Mkoian worked as a police sergeant at in a division dealing with vehicle licensing. As a result of his position, he was offered a bribe to register 20 stolen vehicles. He refused the bribe and reported the incident to the police chief. He later learned that his co-worker had registered the vehicles at the request of the chief. After he reported the offense, Mr. Mkoian's supervisor informed him that the department was to undergo an inspection. Mr. Mkoian was instructed to take a vacation during this time period. Mr. Mkoian believed that the inspection was a result of the complaint that he had filed with the higher authorities. During the inspection, however, Mr. Mkoian worked at a store that he owned rather than taking a vacation. During that time, individuals kept entering his store and attempted to damage it and break merchandise. When he threatened to call the police, he received threatening phone calls telling him to ``shut up'' or else he would ``regret it.'' Mr. Mkoian believed that these threats were related to the illegal vehicle registrations occurring in his department because he had nothing else to be silent about. Later that same month, three men grabbed his wife and attempted to kidnap his child, Arthur, on the street. Mrs. Mkoian was told that her husband should ``shut up.'' No one suffered any injuries from the incident. In October 1991, a bottle of gasoline was thrown into the Mkoian's residence and their house was burned down. The final incident occurred on April 1, 1992, when four or five men assaulted Mr. Mkoian in his store. He was beaten and hospitalized for 22 days. Following that experience, Mr. Mkoian left Armenia for Russia, and then came to the United States on a visitor's visa in search of a better life. Two years later he brought his wife Asmik and his then 3- year old son Arthur to the United States, also on visitor's visas. The family applied for political asylum, but the 9th Circuit Court of Appeals denied their request in January 2008. Thus, the family has no further legal recourse by which to remain in the country other than this bill. Since arriving in the United States, the family has thrived. Arthur is now 17 years old and the family has expanded to include Arsen, who is a U.S. citizen. Both Arthur and Arsen are very special children. What is noteworthy about Arthur, is that out of the 562 students graduating from Bullard High School he is one of three valedictorians for the Class of 2008. Today is his graduation day. He has long dreamed of attending the University of California, Davis. He was accepted this past Spring and plans to complete a degree in chemistry. In addition to maintaining a 4.0 grade point average and taking a rigorous academic course load, Arthur also finds the time to volunteer at the St. Agnes Medical Center emergency room. Arsen is following in his older brother's footsteps. At age 12, he stands out among his peers at Kratt Elementary School and has been invited to apply to the magnet Computech Middle School next year. In addition to raising two outstanding children, Mr. and Mrs. Mkoian have maintained steady jobs and have devoted time and energy to the community and their church. Mr. Mkoian has been employed for years at G.A.C. Trucking in Glendale, California. According to his supervisor, he is one of their best employees, having earned a reputation for trustworthiness and skill. His wife, Asmik, has also been working part-time for 4 years at Gottshalks department store. In addition, she has taken classes at Fresno Community College and has completed their Medical Assistant Program. The family are active members of the St. Paul Armenian Church, and Mr. Mkoian is a member of the PTA of the St. Paul Armenian Saturday School. There has been an outpouring of support for this family from their church, the schools their children attend, and the community at large. To date, we have received over 200 letters of support for the family in addition to numerous telephone calls. I also note that I have letters from both Congressman George Radanovich and Jim Costa, requesting that I offer this bill for the Mkoian family. I truly believe that this case warrants our compassion and our extraordinary consideration. I ask my colleagues to support this private bill. Mr. President, I ask unanimous consent that the text of the bill and letters of support be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise to speak in support of amendment No. 4950, which I have offered to the Climate Security Act, S. 3036, along with Senators Snowe, Wyden, and Cantwell. This amendment is intended to improve section 412, the market oversight and enforcement provisions. I helped author section 412 of the Climate Security Act with Senator Dodd and Senator Whitehouse, and I believe this amendment will improve the underlying provision by even more clearly prohibiting speculation, fraud, and false reporting by traders in carbon markets. Specifically, this amendment would add a ``prohibitions'' subsection to section 412, to establish that it is illegal: No. 1, to knowingly provide to the President, or his designee, any false information relating to the price or quantity of emission allowances sold, purchased, transferred, banked, or borrowed by the individual or entity, with the intent to fraudulently affect the data being compiled; No. 2, to use in connection with the purchase or sale of an emission allowance any manipulative or deceptive device or contrivance--within the meaning of section 10(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78j(b))--or; No. 3, to otherwise cheat or defraud another market participant. Including these prohibitions, which were part of the Emission Allowance Market Transparency Act that I introduced with Senator Snowe, clearly establishes the legal framework under which market manipulation in these markets will be pursued. But unlike our legislation, the amendment does not instruct the Environmental Protection Agency to enforce these prohibitions. Instead, the amendment instructs the President to decide which agency must conduct enforcement within 270 days of enactment. I believe this amendment is necessary because it will establish that the full legal history of the Securities Exchange Act's antimanipulation provision forms the foundation upon which the carbon market's principles-based regulation must stand. It gives guidance to future regulators on the intent and meaning of the core principle that ``the market shall be designed to prevent fraud and manipulation.'' And it adds teeth to that principle by making manipulation and fraud in this market a defined crime subject to severe penalty. With this amendment, authority to prevent fraud and manipulation in carbon markets will mirror the authority over natural gas and electricity markets that Congress granted to the Federal Energy Regulatory Commission in 2005, as well as the authority over crude oil that Congress granted to the Federal Trade Commission in 2007. By mirroring proven market oversight mechanisms that protect market participants and consumers, this amendment allows us to slip already broken-in regulatory concepts onto a new market. I believe this amendment will strongly discourage traders from seeking to manipulate the market. If we don't set up a framework for oversight, the greenhouse gas market could turn into a Wild West. The market--estimated to be worth as much as $100 billion annually--would invite the worst kind of manipulation, fraud, and abuse. The resulting volatility would affect consumer energy costs. This is not a hypothetical. In 2000 and 2001, newly created California energy markets lacked the basic protections in this bill. The electricity and related natural gas markets emerged before the law caught up, and much of the manipulation that resulted, shockingly, was legal. Enron, for instance, ran a market where only they knew the prices. Without market transparency laws, this one-sided market was legal. Enron manipulated natural gas and electricity prices--but nothing in the Natural Gas Act or the Federal Power Act made this manipulation unlawful. Only years later, after millions of consumers had been harmed, after billions of dollars had been lost, and after the entire West had endured an energy crisis largely fabricated by traders, did Congress act. In 2005, Congress succeeded in prohibiting manipulation in natural gas and electricity markets. The Federal Energy Regulatory Commission has put this authority to good use. It has performed aggressive natural gas market oversight, and has brought its first manipulation case, against Amaranth--a notorious hedge fund that allegedly manipulated natural gas prices month after month. This Nation needs to reduce greenhouse gas emissions, and most economists agree that a cap-and-trade system with a greenhouse gas market would be the most cost efficient way to guarantee emissions reductions. Economists also tell us that markets are most efficient when buyers and sellers have complete information, no market participant can cheat another, and prices result from supply and demand, not manipulation. Bottom line: this amendment improves a provision designed to protect the integrity of greenhouse gas emissions markets, and it should be included as part of any cap-and-trade legislation approved by Congress.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Madam President, I would like to explain the purposes of the amendment I have filed today with Senators Klobuchar and Snowe to the greenhouse gas registry provisions of the Climate Security Act. This amendment attempts to clarify the relationship between the greenhouse gas registry provisions in the Climate Security Act, and existing law requiring greenhouse gas reporting. The existing law is a provision that I included in the fiscal year 2008 omnibus appropriations legislation, Public Law 101-161. The fiscal year 2008 omnibus appropriations legislation requires the Administrator of EPA to do the following: publish a draft rule not later than 9 months after the date of enactment of this act, September 26, 2008, and a final rule not later than 18 months after the date of enactment of this act, June 26, 2009, to require mandatory reporting of greenhouse gas emissions above appropriate thresholds in all sectors of the economy of the United States. Thus, under existing law, by June 2009, EPA must publish a final rule requiring mandatory reporting of greenhouse gas emissions. Sections 101 and 102 of the Climate Security Act build on these provisions in existing law. The Administrator of EPA must complete a new rulemaking within 2 years of enactment of the Climate Security Act. As clarified in my amendment, this new rulemaking shall establish a Federal greenhouse gas registry that ``builds upon the regulations completed pursuant to [existing law].'' The new regulations will make ``changes necessary to achieve the purposes described in section 101,'' which includes the substantive requirements for the new registry set forth in section 102(c). Finally, the new regulations will ``require emission reporting to begin no later than calendar year 2011.'' This final provision acknowledges that emission reporting will likely begin in 2010 under existing law, given that the Administrator must complete regulations by June 2009 requiring mandatory emission reporting. Emission reporting that is fully consistent with the provisions of the Climate Security Act will then begin no later than 2011. I would like to thank Senators Klobuchar and Snowe for their dedicated leadership in support of the greenhouse gas registry provisions in this bill. It is a pleasure to work with them on this issue.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise to introduce the Imported Ethanol Parity Act of 2008. This legislation is cosponsored by Senators Gregg, Cantwell, Allard and Collins. First, let me explain what this bill does. The Imported Ethanol Parity Act instructs the President to lower the ethanol import tariff, so that it is no higher than the subsidy for blending ethanol into gasoline. This legislation is necessary because the Farm Bill extended the tariff for two more years at $0.54 per gallon, even though the Farm Bill reduced the ethanol blending subsidy to $0.45 per gallon. In effect, the Farm Bill has turned the tariff from an ``offset'' into a true trade barrier of at least $0.09 per gallon. The Ethanol tariff poses many problems. It increases the cost of Gasoline in the United States by making ethanol more expensive. It prevents Americans from importing ethanol made from sugarcane. Sugar ethanol is the only available transportation fuel that works in today's cars and emits considerably less lifecycle greenhouse gas than gasoline;. It taxes imports from our friends in Brazil, India, and Australia, while oil and gasoline imports from OPEC enter the United States tax free. It hinders the emergence of a global biofuels marketplace through which countries with a strong biofuel crop could sell fuel to countries that suffered drought or other agricultural difficulties in the same crop year. Such a global market would permit mutually beneficial trade between producing regions and stabilize both fuel and food prices. It makes us more dependent on the Middle East for fuel when we should be increasing the number of countries from whom we buy fuel. When it comes to energy security for the United States, which has less than 3 percent of proven global oil reserves and 25 percent of demand, we must diversify supply. Bottom Line: until the tariff is lowered, the United States will tax the only fuel it can import that increases energy security, reduces greenhouse gas emissions, and lowers gasoline prices. In 2006 I introduced legislation to eliminate the ethanol tariff entirely, and in 2007 I cosponsored an amendment to the Energy Bill which would have eliminated the tariff. The Imported Ethanol Parity Act is a different proposal that I believe addresses the concerns of tariff defenders. The advocates of the $0.54 per gallon tariff on ethanol imports have always argued that the tariff is necessary in order to offset the blender subsidy that applies to the use of all ethanol, whether produced domestically or internationally. They argue that the ethanol subsidy exists to support American farmers who produce ethanol at higher cost than foreign producers. For instance, on May 6, 2006, the Chairman of the Senate Finance Committee stated on the Senate floor that, ``the U.S. tariff on ethanol operates as an offset to an excise tax credit that applies to both domestically produced and imported ethanol.'' On May 9, 2006, the Renewable Fuels Association stated in a press release: ``the secondary tariff exists as an offset to the tax incentive gasoline refiners receive for every gallon of ethanol they blend, regardless of the ethanol's origin.'' In a letter to Congress dated June 20, 2007, the American Coalition for Ethanol, the American Farm Bureau Federation, the National Corn Growers Association, the National Council of Farmer Cooperatives, the National Sorghum Producers, and the Renewable Fuels Association stated that the ``(blender) tax credit is available to refiners regardless of whether the ethanol blended is imported or domestic. To prevent U.S. taxpayers from subsidizing foreign ethanol companies, Congress passed an offset to the tax credit that foreign companies pay in the form of a tariff.'' Just this month, the Renewable Fuels Association's Executive Director asserted that ``The tariff is there not so much to protect the industry but the U.S. taxpayer.'' Bottom Line: the tariff cannot be justifiably maintained at $0.54 per gallon if its intent is to offset a $0.45 per gallon blender subsidy, and it should be reduced. Ethanol from Brazil or Australia should not have to overcome a trade barrier that no drop of OPEC oil must face. Tariff defenders either should support this legislation or explain how a tariff can justifiably be higher than the subsidy it is designed to offset. Climate Change is the most significant environmental challenge we face, and I believe that lowering the ethanol tariff will make it less expensive for the United States to combat global warming. The fuel we burn to power our cars is a major source of the greenhouse gas emissions warming our planet. To reduce this impact, we need to increase the fuel efficiency of our vehicles and lower the lifecycle carbon emissions of the fuel itself. For this reason, in March 2007, I introduced the Clean Fuels and Vehicles Act with Senators Olympia Snowe and Susan Collins. The legislation proposed a ``Low Carbon Fuels Standard,'' which would require each major oil company selling gasoline in the United States to reduce the average lifecycle greenhouse gas emissions per unit of energy in their gasoline by 3 percent by 2015 and by 3 percent more in 2020. The legislation was modeled on the state of California's Low Carbon Fuels Standard, which also requires a reduction in the lifecycle greenhouse gas emissions from transportation fuels. This concept became a major aspect of the Energy Independence and Security Act of 2007, in which Congress required oil companies to use an increasing quantity of ``advanced biofuels'' that produce at least 50 percent less lifecycle greenhouse gas than gasoline. Unfortunately the ethanol tariff puts a trade barrier in front of the lowest carbon fuel available, making it considerably more expensive for the United States to lower the lifecycle carbon emissions of transportation fuel. The lifecycle greenhouse gas emissions of ethanol vary depending on production methods and feedstocks, and these differences will impact the degree to which ethanol may be used to meet ``low-carbon'' fuel requirements under California law and the Energy Independence and Security Act of 2007. For instance, sugar cane ethanol plants use biomass from sugar stalks as process energy, resulting in less fossil fuel input compared to current corn-to-ethanol processes. By comparison, researchers at the University of California concluded that ``only 5 to 26 percent of the energy content (in corn ethanol) is renewable. The rest is primarily natural gas and coal,'' which are used in the production process. The 2007 California Energy Commission Report entitled Full Fuel Cycle Assessment: Well-to-Wheels Energy Inputs, Emissions, and Water Impacts concluded that the direct lifecycle greenhouse gas emissions of imported sugar based ethanol are 68 percent lower than gasoline, while the direct lifecycle greenhouse gas emissions of corn based ethanol from the Midwest are 15 to 28 percent lower than gasoline. Further research released in 2008 suggests that the lifecycle greenhouse gas emissions of corn based ethanol may be higher than gasoline, when land use change is factored into the equation. The bottom line: biofuels that protect our planet may be produced abroad, and we should not put tariffs in front of these fuels, while we import crude oil and gasoline tariff free. Energy and food prices are both rising at unprecedented rates, and there is a great deal of debate about whether the renewable fuels standard mandating ethanol use is causing the problem. I have always opposed corn ethanol mandates. But I remain concerned that the blending subsidy and the ethanol tariff have as much to do with rising corn prices as the ethanol mandate. Corn ethanol production has considerably exceeded the renewable fuels standard every year since its adoption in 2005. With oil prices this high, it is profitable to produce ethanol at record corn prices with or without the mandate. The low value of renewable fuels standard credits, known as RINs, confirms that using ethanol is not a burden for oil companies. To address the rising cost of corn, we have to address the underlying economics of corn ethanol production, and effectively increasing the tariff on imports, as the Farm Bill has done, is a step in the wrong direction. This legislation corrects the Farm Bill's mistaken policy that imposed a real trade barrier on clean and climate friendly ethanol imports, giving gasoline imports a competitive advantage over cleaner fuel that simply should not exist at a time we are trying to combat climate change. It prevents ethanol producers abroad from receiving American ethanol subsidies, which is supposedly the intent of the ethanol tariff. I think it strikes the right balance, and I urge Congress to pass this legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise to introduce the Imported Ethanol Parity Act of 2008. This legislation is cosponsored by Senators Gregg, Cantwell, Allard and Collins. First, let me explain what this bill does. The Imported Ethanol Parity Act instructs the President to lower the ethanol import tariff, so that it is no higher than the subsidy for blending ethanol into gasoline. This legislation is necessary because the Farm Bill extended the tariff for two more years at $0.54 per gallon, even though the Farm Bill reduced the ethanol blending subsidy to $0.45 per gallon. In effect, the Farm Bill has turned the tariff from an ``offset'' into a true trade barrier of at least $0.09 per gallon. The Ethanol tariff poses many problems. It increases the cost of Gasoline in the United States by making ethanol more expensive. It prevents Americans from importing ethanol made from sugarcane. Sugar ethanol is the only available transportation fuel that works in today's cars and emits considerably less lifecycle greenhouse gas than gasoline;. It taxes imports from our friends in Brazil, India, and Australia, while oil and gasoline imports from OPEC enter the United States tax free. It hinders the emergence of a global biofuels marketplace through which countries with a strong biofuel crop could sell fuel to countries that suffered drought or other agricultural difficulties in the same crop year. Such a global market would permit mutually beneficial trade between producing regions and stabilize both fuel and food prices. It makes us more dependent on the Middle East for fuel when we should be increasing the number of countries from whom we buy fuel. When it comes to energy security for the United States, which has less than 3 percent of proven global oil reserves and 25 percent of demand, we must diversify supply. Bottom Line: until the tariff is lowered, the United States will tax the only fuel it can import that increases energy security, reduces greenhouse gas emissions, and lowers gasoline prices. In 2006 I introduced legislation to eliminate the ethanol tariff entirely, and in 2007 I cosponsored an amendment to the Energy Bill which would have eliminated the tariff. The Imported Ethanol Parity Act is a different proposal that I believe addresses the concerns of tariff defenders. The advocates of the $0.54 per gallon tariff on ethanol imports have always argued that the tariff is necessary in order to offset the blender subsidy that applies to the use of all ethanol, whether produced domestically or internationally. They argue that the ethanol subsidy exists to support American farmers who produce ethanol at higher cost than foreign producers. For instance, on May 6, 2006, the Chairman of the Senate Finance Committee stated on the Senate floor that, ``the U.S. tariff on ethanol operates as an offset to an excise tax credit that applies to both domestically produced and imported ethanol.'' On May 9, 2006, the Renewable Fuels Association stated in a press release: ``the secondary tariff exists as an offset to the tax incentive gasoline refiners receive for every gallon of ethanol they blend, regardless of the ethanol's origin.'' In a letter to Congress dated June 20, 2007, the American Coalition for Ethanol, the American Farm Bureau Federation, the National Corn Growers Association, the National Council of Farmer Cooperatives, the National Sorghum Producers, and the Renewable Fuels Association stated that the ``(blender) tax credit is available to refiners regardless of whether the ethanol blended is imported or domestic. To prevent U.S. taxpayers from subsidizing foreign ethanol companies, Congress passed an offset to the tax credit that foreign companies pay in the form of a tariff.'' Just this month, the Renewable Fuels Association's Executive Director asserted that ``The tariff is there not so much to protect the industry but the U.S. taxpayer.'' Bottom Line: the tariff cannot be justifiably maintained at $0.54 per gallon if its intent is to offset a $0.45 per gallon blender subsidy, and it should be reduced. Ethanol from Brazil or Australia should not have to overcome a trade barrier that no drop of OPEC oil must face. Tariff defenders either should support this legislation or explain how a tariff can justifiably be higher than the subsidy it is designed to offset. Climate Change is the most significant environmental challenge we face, and I believe that lowering the ethanol tariff will make it less expensive for the United States to combat global warming. The fuel we burn to power our cars is a major source of the greenhouse gas emissions warming our planet. To reduce this impact, we need to increase the fuel efficiency of our vehicles and lower the lifecycle carbon emissions of the fuel itself. For this reason, in March 2007, I introduced the Clean Fuels and Vehicles Act with Senators Olympia Snowe and Susan Collins. The legislation proposed a ``Low Carbon Fuels Standard,'' which would require each major oil company selling gasoline in the United States to reduce the average lifecycle greenhouse gas emissions per unit of energy in their gasoline by 3 percent by 2015 and by 3 percent more in 2020. The legislation was modeled on the state of California's Low Carbon Fuels Standard, which also requires a reduction in the lifecycle greenhouse gas emissions from transportation fuels. This concept became a major aspect of the Energy Independence and Security Act of 2007, in which Congress required oil companies to use an increasing quantity of ``advanced biofuels'' that produce at least 50 percent less lifecycle greenhouse gas than gasoline. Unfortunately the ethanol tariff puts a trade barrier in front of the lowest carbon fuel available, making it considerably more expensive for the United States to lower the lifecycle carbon emissions of transportation fuel. The lifecycle greenhouse gas emissions of ethanol vary depending on production methods and feedstocks, and these differences will impact the degree to which ethanol may be used to meet ``low-carbon'' fuel requirements under California law and the Energy Independence and Security Act of 2007. For instance, sugar cane ethanol plants use biomass from sugar stalks as process energy, resulting in less fossil fuel input compared to current corn-to-ethanol processes. By comparison, researchers at the University of California concluded that ``only 5 to 26 percent of the energy content (in corn ethanol) is renewable. The rest is primarily natural gas and coal,'' which are used in the production process. The 2007 California Energy Commission Report entitled Full Fuel Cycle Assessment: Well-to-Wheels Energy Inputs, Emissions, and Water Impacts concluded that the direct lifecycle greenhouse gas emissions of imported sugar based ethanol are 68 percent lower than gasoline, while the direct lifecycle greenhouse gas emissions of corn based ethanol from the Midwest are 15 to 28 percent lower than gasoline. Further research released in 2008 suggests that the lifecycle greenhouse gas emissions of corn based ethanol may be higher than gasoline, when land use change is factored into the equation. The bottom line: biofuels that protect our planet may be produced abroad, and we should not put tariffs in front of these fuels, while we import crude oil and gasoline tariff free. Energy and food prices are both rising at unprecedented rates, and there is a great deal of debate about whether the renewable fuels standard mandating ethanol use is causing the problem. I have always opposed corn ethanol mandates. But I remain concerned that the blending subsidy and the ethanol tariff have as much to do with rising corn prices as the ethanol mandate. Corn ethanol production has considerably exceeded the renewable fuels standard every year since its adoption in 2005. With oil prices this high, it is profitable to produce ethanol at record corn prices with or without the mandate. The low value of renewable fuels standard credits, known as RINs, confirms that using ethanol is not a burden for oil companies. To address the rising cost of corn, we have to address the underlying economics of corn ethanol production, and effectively increasing the tariff on imports, as the Farm Bill has done, is a step in the wrong direction. This legislation corrects the Farm Bill's mistaken policy that imposed a real trade barrier on clean and climate friendly ethanol imports, giving gasoline imports a competitive advantage over cleaner fuel that simply should not exist at a time we are trying to combat climate change. It prevents ethanol producers abroad from receiving American ethanol subsidies, which is supposedly the intent of the ethanol tariff. I think it strikes the right balance, and I urge Congress to pass this legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to speak in favor of the climate change legislation sponsored by Senators Joe Lieberman and John Warner and the managers' substitute amendment offered by my friend and colleague, Senator Barbara Boxer. I congratulate all three of them. This is not an easy road. I want particularly to thank the chairman of the committee for her work. She has been open, she has been consultative, she has asked to meet with Members, she has asked for Members' participation in the work. She has been both strong and solid in her leadership. After years of debating about the science underlying the warming of our planet, today marks a momentous step because for the first time we are considering comprehensive legislation to address global warming in a comprehensive manner. I believe the time has come for the Senate to pass legislation to tackle this problem. The bill represents the most comprehensive opportunity we have in this Congress to help curb our carbon footprint and take meaningful action to prevent catastrophic climate change--and nobody should disbelieve that is coming. The fact is this: Global warming is happening. It has already begun to inflict changes on the world as we know it. If you read the newspapers, if you watch television, or if you simply take a look around, it is undeniable. Just look at weather patterns. More destructive and deadly storms, such as the cyclone that hit Burma and the tornadoes that have devastated parts of the Midwest, are happening. Species are beginning to disappear. The Fish and Wildlife Service has just announced that the polar bear has been placed on the endangered species list because of global warming. Its habitat is literally melting away. Polar icecaps are melting. The Northwest Passage was navigable for the first time last summer. The Arctic Circle could be ice free by 2030. The West is running out of water. Scientists at UC San Diego believe there is a 50-50 chance that Lake Mead, a key source of water for 8 million people in the Southwestern United States, will be dry by 2021, if the climate changes, as expected, and its use is not curtailed. Projections suggest that both Antarctica and Greenland could melt at the same time. If that were to happen, the seas would rise by 20 feet. So we are feeling the effects of warmer weather. Five out of the past 5 years and 19 out of the last 20 have been the warmest on record. The Western United States is receiving the brunt of warming. This is because the West's average temperature is 70 percent greater than the planet as a whole. So the Earth's temperature has warmed 1 degree over the past century, but it has warmed 1.7 degrees in the 11-State Western region, and it is only getting warmer. Take a look at this map. Here is why. Carbon dioxide doesn't dissipate in the atmosphere. It remains for 30, 40, 50, 100 years. The atmosphere is a shell around the Earth, and carbon dioxide has been growing since the Industrial Revolution in this atmosphere. So the question becomes, how much will the Earth warm? This very question is at the heart of why we need climate change legislation, because scientists tell us we can make a difference to impact how much the Earth will warm. We can't stop warming, but we can slow it down. But if we are to do even that, we have to act soon and decisively. I truly don't believe there is a minute to waste. To stabilize the climate and to prevent catastrophic warming, scientists say we need to begin by reducing emissions by 65 to 80 percent below 1990 levels--that is 65 to 80 percent below what we have put into the atmosphere in 1990--and do all this by the middle of the century. That translates into a goal of 1,450 parts per million of carbon dioxide in the atmosphere. Vice President Al Gore told me recently there is some new science out that we actually may need to limit carbon emissions to 350 parts per million, which is even stronger. There is new science out that shows the Earth is warming even faster than was originally predicted. We need to contain the warming to 1 to 2 degrees. We will still experience significant but manageable changes, but if we fail to act, the Earth's temperature could rise 5 to 9 degrees or more. Those results are catastrophic and irreversible. I tell constituent breakfasts about the Earth. Most people believe the Earth can't change. But, in fact, planets do change. Look at Mars, look at the Earth 250 million years ago, when there was one mass on Earth only. The Earth is subject to change. That change can be dramatic, and warming affects that change. This is a gamble we cannot afford to take. The truth is, though, there is no silver bullet. There is no one thing that will turn the tide. We need to go clean and green in driving, in heating, in cooling, in building, and fueling. We need to move away from fossil fuels. We need the Lieberman-Warner legislation. By 2050, this bill would reduce emissions by 63 percent below 2005 levels or 57 percent below 1990 levels. So the legislation sets us on the path toward meaningful greenhouse gas reductions. It does so in a way that encourages innovation and makes the investment in cleaner energy and green practices across the entire economy. Importantly, it also includes important provisions to keep our economy strong. The bottom line: This legislation is a major step in the right direction. It is the most significant thing we can do right now to help prevent catastrophic climate change. Let me take a few moments to talk about what the bill does. There are two ways to deal with this. One is a carbon tax. Most scientists want the carbon tax, but most people believe a new tax is not going to happen. The other alternative is a cap-and-trade system, much as Europe has been doing and much as the Northeastern States have been doing to deal with acid rain. They have reversed acid rain by 45 percent through their cap-and-trade system. This legislation establishes a cap-and- trade system for roughly 86 percent of the economy. It includes the electricity sector, manufacturing, transportation, and natural gas. It would be the world's most comprehensive effort to address global warming to date. It controls emissions in more sectors of our economy than Europe's carbon control program. It would restore American leadership in the fight to protect our planet. Here is how it works. In 2012, emissions are capped at 2005 levels. They begin to ratchet down 2 percent per year. By 2020, emissions would be 19 percent below current levels. By 2050, emissions would be cut to approximately 63 percent below 2005 levels by 2050, or 57 percent below 1990 levels. That is the cap part. The trade part of the bill allows for the trading of allowances, which are permits to release 1 metric ton of carbon dioxide into the atmosphere. It is a proven system. It is working well right now in the United States to control acid rain and smog pollution. It has given companies flexibility to innovate and embrace new technologies. Under the bill, the pollution permits are allocated in a way that transitions our economy toward a low-carbon future. In the early years, one-third of the allowances will be allocated to polluting industries covered by the bill to assist with their transition to less carbon- intensive technologies. So one-third goes to those who pollute to help them convert. Revenue produced by selling allowances at auction will be used to invest in low-carbon technology development and deployment. The bill funds carbon capture and sequestration, renewable energy, and other low-carbon technologies for producing electricity. That is a good thing. It funds efforts to retool car factories, to produce more efficient vehicles and ventures to develop cellulosic biofuels, two steps essential to reducing vehicle emissions. It funds efforts to increase the efficiency of buildings, homes, appliances, and it rewards States that produce significant emission reductions. In later years, this bill refocuses its assistance toward worker training and financial relief for consumers. It is a good bill. It assists those in coastal and arid States who will have to adapt to sea level rise and rainfall loss. So it makes our world better off, but it also helps those who may have to shoulder an undue burden. Here is the bottom line: This cap-and-trade bill significantly reduces emissions. It funds new technologies. It deploys existing low- cost options. It contains costs. It mitigates negative impacts. It effectively combats climate change, while protecting our quality of life. I wish to take a few moments to talk in detail about some of the key provisions of the bill that are of particular note. First, the legislation includes language to establish Federal oversight for the new carbon market. This is something I learned, as a Californian in the Western energy crisis, that we need to do. A $100 billion market for the trading of carbon emissions is going to spring up as this cap-and- trade system is established. We need to be prepared. Just as there are those who manipulate the price of oil and the price of gas--and we in California found that out to the tune of $40 billion--this new market could attract Enron-like manipulation, fraud or excessive speculation, unless we take preventive action. This month Congress finally passed legislation in the farm bill to close the Enron loophole to protect electronic energy markets. It took us 6 years after the Western energy crisis to achieve that. It is time to learn from these mistakes. We need to take steps now to ensure that the market functions with transparency, as well as antifraud and antimanipulation provisions from the get-go. Specifically, this legislation requires the President to establish an interagency working group, the carbon market working group. It is made up of the heads of the following agencies: the EPA, the Federal Energy Regulatory Commission, the Commodities Futures Trading Commission, the Securities and Exchange Commission, and the Treasury Department. Within 270 days of enactment of the bill, the working group would establish the regulatory framework for the market and recommend necessary regulations that ensure enforcement of core market oversight principles. These principles would include ensuring market transparency in price, volume, and other trading data--all of it made available to the public--requirements for recordkeeping, an audit trail which, up to this point, doesn't exist on the electronic marketplace--but thanks to the Enron loophole closure bill, it will exist--and finally, preventing fraud, manipulation, and excessive speculation. I was pleased to hear the Commodities Futures Trading Commission is now taking a look at excessive speculation in the oil market as a reason for the drive up of prices of gasoline. I will bet anything there is excessive speculation in that market today. These regulations would be fully enforceable by existing market oversight agencies, and violators would be subject to significant penalties. So it is critical we protect these markets from the outset. We cannot afford to delay. Secondly, the bill promotes green practices for farmers and foresters. This is something I am very interested in. California is the largest ag State. The legislation includes language I authored to fund research on innovative and cost-effective methods for farmers and foresters to store carbon in the soil. It is believed that farming and forestry practices to sequester carbon in the soil hold great potential to reduce our carbon footprint, and this is particularly true in my State. But the fact is, we do not yet know enough about the best ways to carry out carbon sequestration. So this legislation would help shed light on a number of practices farmers and foresters can take to sequester carbon. The research would be funded through allowances for agriculture in the cap-and-trade system established by the Lieberman-Warner legislation. Some of these practices could include several methods popular in my State, including row crop practices such as conservation tillage--this is a picture of it--permanent crop practices, including planting cover crops during the winter season, and using prunings for bioenergy production rather than chipping, mulching, or burning the material, and practices to reduce the digestion-related emissions of methane gas from cattle and livestock. Once we understand which of these innovative methods is the most cost effective, farmers could then sell low-cost offset credits to companies that need to reduce their emissions. So this is a win-win. Third, this bill promotes low-carbon fuels through a low-carbon fuels standard. Similar to the Clean Fuels and Vehicles Act, which Senator Snowe and I introduced last year, this would require each major oil company selling gasoline in the United States to reduce the average life-cycle greenhouse gas emissions per unit of energy in their gasoline. The provision ensures that the car and truck emissions go down as we increase the use of low-carbon renewable fuel, such as cellulosic ethanol. By improving the renewable fuel standard, which requires the use of 36 billion gallons of renewable fuel by 2020, it assures that the climate benefits of this provision are realized. My conclusion and my bottom line: Confronting global warming will require action on a broad scale. To those in this body who are dissenters, I say this: If we do not do it, when the science has coalesced, when the science tells us the time is limited, when the science tells us we cannot stop it because it does not dissipate--we must move away from carbon, and we must move to other kinds of fuels, and do so quickly, and we must take these steps to aid the conversion of American industry. Also, most important, this bill will signal that the United States, after a long period of doing nothing, is prepared to stand up tall and to lead. I thank Senator Warner and Senator Lieberman for this legislation. I know the senior Senator from Virginia is on the floor. I know he is going to retire at the end of the year. I want him to know very personally from me how much I respect him. I respect your leadership on this issue, Senator Warner. I think it leaves you a great legacy. I only hope we will do justice to you by passing this legislation here today. So thank you so much for your leadership.

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent the order of speakers after morning business, prior to the recess for caucus luncheons, be as follows: Senator Feinstein for up to 20 minutes, Isakson for up to 15 minutes, Corker for up to 20 minutes, Specter for up to 15 minutes; Kerry for up to 20 minutes.