Lindsey Graham

Mr. GRAHAM

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GRAHAM

Mr. GRAHAM. I take the floor today in support of the conference report that has been agreed to by the conferees regarding Iran sanctions. I wish to compliment Senators Dodd, Shelby, Lugar, Kerry, Lieberman and others who were involved in negotiating this compromise. The Iranian sanctions bill will give the President tools he does not have today that will allow us as a nation to be more forceful when it comes to trying to alter Iranian behavior. I think most people in this body see the Iranian regime up to no good, that the Iranian regime has been oppressing its own people, and they present a great threat in terms of the region and the world at large. They are one of the greatest sponsors of terrorism of any nation in the world. This sanctions legislation, which is bipartisan, will allow the President more tools. It will prevent access to foreign exchange in the United States. It will prevent access to our banking system by people who do business with Iran in unhealthy ways, and it will prevent the purchase of property in the United States in case the Iranians are looking for a place to put their money. We are going to take our banks and our real estate off the table so they cannot use us to profit from their brutal behavior. It gives the ability to the President to waive these sanctions when it comes to countries that are cooperating with us. The whole goal of this legislation is to empower the administration and our Nation with tools that would create a downside for the Iranian Government to continue to try to develop a nuclear weapon and support terrorist organizations. I am hopeful this will have some deterrent effect. The United Nations is beginning to act. The European Union, Russia, and China seem to be more helpful to the Obama administration. Anything we can do to help, we will. The idea of trying to get Iran to change its behavior through internal cooperation is a worthy idea to pursue. I hope it works. Senator Schumer and I offered legislation not long ago that would prohibit companies that do business with the Iranian regime in the area empowering the regime in terms of technology to interfere with the Internet and stop the people of Iran from communicating with each other. That made it into the bill. I want to thank the conferees. What Senator Schumer and I came up with months ago, right after the massacre of the students by the Iranian regime, one of the things that led to this people's revolt in Iran, was the ability to Tweeter and talk to each other, use the Internet. The Iranian regime has been trying to suppress the ability of the Iranian people to talk to each other, and we created legislation that told the international community: Any company that empowers this regime to suppress the free flow of information among the Iranian people would lose business when it came to American business. That made it in the bill. I hope that will help. The Iranian people have had a very difficult time. The election, as seen by the Iranian people and the world at large, of Ahmadinejad has been, quite frankly, a fraud and a joke. About a year ago, a little over a year ago, a young lady captured international attention and the hearts and minds of the world--I think her name was Neda--who was killed in the streets of Tehran. She was a beautiful young girl who had taken to the streets to try to defy this regime's oppressive behavior. So as we look at the world here in the middle of June regarding Iran, there is a lot of hope I have that the Iranian people have turned the corner in terms of what they want for their future. We need to be their partner in a constructive way. It is one thing to empower the people, it is another thing to empower the regime that oppresses the people. Some of the sanctions we are proposing would make life difficult for the every-day Iranian, but I think they would welcome that, if it would give them the ability to weaken the regime they no longer tolerate or support. The sanctions route with Russia and China has potential. If the world will speak with one voice and support President Obama in terms of making the consequences that the Iranian nuclear program is a support of terrorism unacceptable economically, including refined petroleum products, it would be good for the world at large. Our friends in Israel are very concerned, as they should be, about the way Iran is moving toward supporting Hezbollah and Hamas and other organizations that are bent on the destruction of Israel. A nuclear weapon in the hands of this regime would be a nightmare for the world at large, but it would be horrible for the State of Israel. It is my hope we can avoid that. I hope sanctions work. However, the world must understand that sanctions is a tool to change behavior. It is worthy of our time to try to change behavior with these sanctions. What is unacceptable is to practice a policy of containment, to accept a nuclear-armed Iran and hope that we contain it. To me that is a folly. That is a scenario that would lead to the unthinkable. If Iran ever does acquire a nuclear weapon, you are not going to contain it. You are going to have a Mideast where other people want a nuclear weapon to hedge their bets against Iran. You will have a world where a regime has a nuclear weapon and could be no better friend of the terrorists than Iran. I think President Clinton, when I was in Israel with him, spoke well of this. He talked about his biggest fear if Iran got a nuclear weapon. It would not be so much an attack against Israel or our allies as would be it falling into the hands of a terrorist organization that would use it against Israel or our allies. I think President Clinton is correct in being worried about that. So this is a good day. We cannot agree on much here in Congress. We are in a pretty partisan environment right now. I hope that will pass one day. But when it comes to Iranian sanctions, we came together as a body. We are giving tools to the administration to hopefully change the behavior of this regime. I am proud of our colleagues who negotiated this deal with the House. I am hopeful it will help. I will conclude with one final thought: Whatever tools it takes to change the behavior of the Iranian Government we need to keep on the table, and the best tool is a peaceful tool. But if military force is ever required to change Iranian behavior, I hope that will be at least considered as the last option, not the first option. I hope we never go down that road. But it may be a road you have to explore if all this fails. I yield the floor and I suggest the absence of a quorum.

Mr. GRAHAM. Mr. President, I think I have 10 minutes. Is that right? Would the Chair advise me when 10 minutes expires?

Mr. GRAHAM. I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GRAHAM

Mr. GRAHAM. Madam President, I appreciate what Senator Murkowski is trying to do. Maybe this is a balance-of-power issue. The court ruled, I think in 2007, that greenhouse gases could be regulated under the Clean Air Act. Senator Voinovich is right. Congress has never made that decision. There have been efforts in the past to get carbon pollution regulation by the Clean Air Act, but it was never passed legislatively. The courts have spoken. The tool being used today is a legislative tool available to the Congress to basically put regulatory powers in check, and what we are doing by passing this amendment is basically stopping the EPA from regulating carbon. And here is the real rub: If we stop them, are we going to do anything? My view is that we need to do several things to replace the EPA. The EPA regulation of carbon cannot provide transition assistance to businesses. They don't have the flexibility or the tools necessary to create rational energy policy. That would create an economic burden at a time we need to create economic opportunity. So I think the regulatory system of dealing with carbon pollution is the wrong way to go, but to do nothing would be equally bad. To do nothing means China is going to develop the green energy technology that is coming in the 21st century. What I propose is that the Congress, once we stop the EPA, create a rational way forward on energy policy that includes clean air and regulation of carbon. No. 1, the trust fund that is used to build roads and bridges is tremendously underfunded. Senator Inhofe and others have challenged the Congress time and time again to do something about shortfalls in the highway trust fund. To the transportation community, if you are listening out there, you have a chance, as a broader package, to be part of a broader deal to get money for the highway trust fund. But you will never do it standing alone. We are not going to raise taxes to put money in the transportation trust fund and that is all we do. I think the transportation sector needs to be looked at anew. How can we lower emissions on the transportation side, reduce our dependency on foreign oil, and replenish the trust fund? I would argue that Congress could come up with policies that would dramatically reduce CO2 emissions coming from cars and trucks without a cap on carbon; that we could have incentives on the transportation side to develop alternative vehicles--battery-powered cars, hydrogen-powered cars, hybrid cars in different fashions that would break our dependency on foreign oil. If you take this debate and separate it from our dependency on foreign oil, you have made a huge mistake. Madam President, $439 billion was sent overseas by the United States last year to buy oil from countries that don't like us very much. When you talk about controlling carbon, you ought to be talking about energy independence. I suggest that Congress look at the transportation sector with a comprehensive approach that will reduce our dependency on foreign oil, that will create vehicles that are more energy efficient and produce less carbon to clean up the air, and you can do all that without a cap and put money into the trust fund to rebuild bridges and roads that are falling apart as America grows. These are jobs that will never go to China. We need to have a vision on transportation that needs to be part of our broader vision. When it comes to breaking our dependency on foreign oil, we need to use less oil in general. The President is right. A low-carbon economy is a safer America, a cleaner environment and I think a more prosperous America. But we have natural fossil fuel assets in this country. We have oil and gas. The gulf oilspill is a tremendously catastrophic environmental disaster, but if we overreact and say we are going to stop exploring for domestic oil and gas--9 million barrels a day comes from domestic exploration, and we use 21 million barrels a day--the people in the Mideast would cheer that policy. The biggest winner in stopping domestic exploration for oil and gas would be OPEC nations. So it is not in our national security interest, not in our economic interest to make a rash decision on oil and gas exploration. I encourage the Congress to slow down, find ways to safely explore for oil and gas, and make it part of an overall energy vision that will allow us to break our dependency on foreign oil. When it comes to job creation, wind, solar, battery, and nuclear power--all of the energy efficiency green technology that will come in this century is going to come from China if we don't get our act together. We need a rational energy policy that would incentivize alternative energy to be developed in America before the world takes over this emerging market. That means incentives for wind, solar, and, yes, nuclear power. Twenty percent of our power comes from the nuclear industry, and 82 percent of the French economy's power comes from the nuclear industry. Surely we can be as bold as the French. If you had a renaissance of nuclear power in this country, you could create millions of jobs. We could come up with ways to treat the waste. President Obama has been very good on nuclear power. His administration, with Secretary Chu, has been excellent in trying to develop incentives to expand nuclear power in a safe fashion. Carbon is bad. Let's do something about it in a commonsense way. You don't have to believe in global warming to want clean air. This idea about what to do with carbon--you don't have to believe the planet is going to melt tomorrow, but this idea that what comes out of cars and trucks and coal-fired plants is good for us makes no sense to me. If we can clean up the air in America, we would be doing the next generation and the world a great service. The key is, can you clean up the air and make it good business? I believe you can. Let's pursue both things: good business and clean air.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I ask the Senate to join me in recognizing a historic event taking place in Clemson, SC. Today, Clemson University and the Clemson Corps are dedicating its Scroll of Honor Memorial, which recognizes the 473 Clemson University alumni who sacrificed their lives protecting and defending our Nation. Clemson University has a long and distinguished military history, and todays dedication of the Scroll of Honor is a testament to this school's continued commitment to honoring those who serve our country. I truly appreciate the Clemson Corp for spearheading this important project. As Senator, I have had the great honor to meet many of our Nation's soldiers, sailors, airmen and marines serving abroad. They are dedicated, proud individuals who take their jobs to protect our Nation very seriously. Like the millions of veterans who served before them, they also know the great truth that freedom is never free. It was won and protected for more than two centuries by patriotic Americans willing to risk their lives to defend this great country of ours. Millions of Americans have given their blood, sweat, and tears in defense of this great land. Many, like the individuals we honor today, paid the ultimate price. Words cannot adequately express the great respect and admiration I have for these individuals. I, like all Americans, will forever be indebted to them for their sacrifice. I ask that the U.S. Senate join me in honoring these distinguished Sons of Dear Old Clemson, their families, and the thousands of soldiers, sailors, airmen, and marines who continue to serve our Nation. And may God continue to bless our United States of America.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I rise today with great disappointment in both the substance and process of this legislation. We should be working from a long held medical premise; first, do no harm. Instead, Americans know this government takeover of the health care system is bad and the tactics that have been used to do it are even worse. The policies contained in the recently passed health care bill combined with this reconciliation package will raise costs, lower the quality of care in our country, shift a new unfunded mandate onto the States, and will result in health care rationing. The reasons Democrats passed this bill on a party-line vote in the Senate on Christmas Eve and late this past Sunday night in the House are because of a slew of backroom deals and arm twisting to buy up last minute votes. Now we take up the reconciliation bill to remove some of these deals so the President can claim to have clean hands. There are many other reasons to oppose this bill, aside from the unsavory deals made to secure its passage. In both its scope and reach, the combination of health care legislation and reconciliation is unprecedented. It raises $644 billion in taxes and cuts $525 billion from Medicare. The Democrats' bill contains accounting gimmicks that would make Bernie Madoff proud. The Congressional Budget Office found that savings generated from Medicare will not be reinvested in the program, but rather will be used to pay for new programs, putting even more strain on the long-term viability of Medicare. There is no guarantee this plan lowers health care costs for consumers. What is sure is that 80 percent of Americans will find themselves in some form of government-run, government-controlled health care. The remaining 20 percent will soon be asked, if not required, to follow. Historically, large-scale social legislation has passed with great bipartisan support. Social Security legislation passed in 1935 with 77 bipartisan votes. Medicare passed with 68 votes, and the Americans with Disabilities Act passed with 76 votes. Never before have we acted in a manner that would affect one-sixth of our economy on the whims of a single political party. The combination of tactics used to pass the health care bill and amend it through reconciliation moves us into uncharted territory. Even previous budget reconciliation measures cited by my colleagues on the other side have passed with large, bipartisan margins. The law that created the COBRA insurance program, often cited by my friends, achieved final passage in the Senate on a voice vote in 1985. In addition, welfare reform was supported by 78 Senators and SCHIP passed the Senate with a whopping 85 votes. While there are a number of things that Republicans and Democrats agree on when it comes to reforming the health care system, Democrats have chosen to pursue a winner take all strategy that leaves them in the position of having to clean up a messy bill through the process of reconciliation. They have adopted a hard-line ideological approach and continue to push a plan that will put us one giant step closer to the single-payer government run health care system they have long desired. Speaking of a federal takeover; if you want a federal takeover of the student loan industry, then your ship has come in. Every student in the country who needs to borrow money for college will now have to come to the Federal Government for a loan, which will make the United States Department of Education one of the Nation's largest banks. A portion of the proceeds from these loans, about $9 billion, will then be used to finance new health care spending instead of being put back into education programs. Students will be caught in the middle in terms of health care financing. Not only will their loan interest go to finance an unpopular health care proposal, but they will be paying higher taxes when they graduate and get a job. I am afraid that by dealing Republicans out of the game, Democrats have done great harm to comity in the Senate. I have never hesitated to work across the aisle on tough issues and try to reach consensus. After this maneuver, I fear that bipartisanship may be a thing of the past for the foreseeable future. While there may have been the chance to work together on important topics, I believe Republicans must now pursue a strategy of repeal and replace. Repeal this damaging legislation and replace it with programs that promote fair tax treatment of health care, encourage innovation, reward wellness, and help those in need. I will be voting against this reconciliation bill because I believe that combined with the recently passed health care bill, it will do more harm than good for health care and higher education in America.

Mr. GRAHAM

Mr. GRAHAM. Madam President, I would like to pay tribute to the life of Dr. Don C. Garrison of Easley, SC. On February 27, 2010, South Carolina lost a true visionary and leader who dedicated almost half of his life to improving higher education. For more than three decades, Dr. Garrison devoted himself to nurturing and developing Tri-County Technical College, one of the largest community and technical colleges in South Carolina. In 1971, Dr. Garrison took over as president of Tri-County, which at the time was a rural technical school. During his tenure as president, Dr. Garrison expanded this institution to become one of the State's largest community colleges, providing degrees, diplomas, and certificate programs in a variety of subject areas. Under his tutelage, Tri-County has become an exemplary 2-year technical institution that educates students across Pickens, Anderson and Oconee Counties. Dr. Garrison worked tirelessly to improve the lives of many South Carolinians and used his unique position to advocate for technical education. Dr. Garrison was one of the early pioneers of technical schools in South Carolina, which quickly transformed South Carolina's economy. South Carolina's technical schools have always been some of the highest performing schools in the nation, much to do with the leadership of Dr. Garrison. He was an optimist by nature, who always tried to find a way forward, no matter how difficult the problem. The people of South Carolina were well served by his leadership and vision. Dr. Garrison will be remembered as a passionate educator, a steadfast advocate of education, and for the tremendous contributions he has made to countless members of our community. His legacy will be carried on by the many lives that he influenced. I truly admire his dedication to his students and to the State of South Carolina. In his final commencement speech, Dr. Garrison told the graduating class, ``The key to success in life is attaching yourself to a cause that is greater than yourself.'' Dr. Garrison was a shining example of this very statement. I was truly saddened to hear of the passing of Dr. Don Garrison and I want to take this opportunity to send my condolences to his wife Carol, his family, and friends. I also want to express my sincere appreciation for his long service to the State of South Carolina.

Mr. GRAHAM

Mr. GRAHAM. I don't know if you could call it a sweetheart deal more than it is just repugnant. The campaign in 2008 was about change we could believe in. I do believe one of the reasons President Obama won is because he convinced young people in this country that if he got to be President, this country was going to change for the better; we were going to do things differently, and that resonated with people. Quite frankly, when we were in charge, as Republicans, we let people down. We let things get out of control on our watch. Some of our people wound up going to jail. The Iraq war was not popular. So you had this new, young, exciting, articulate figure come along and promise a new way of doing business. That is what hurts so much about this bill. The special deals the Senator just mentioned remind us all why Congress is in such low standing. The 60th vote--how did they get it? Did they negotiate the 60th vote on C-SPAN in a transparent manner promised in the campaign that we would have negotiations on C-SPAN so that you, the American people, could watch what was being given and what was being taken and there will be no more backroom deals? Here is what happened. They took one Senator who was the key guy and they put him in a room. We had no access to that room and no Democrat did either. After it is all said and done, here is what resulted from those negotiations that were not on C-SPAN. Nebraska is going to be the only State in the Union, ladies and gentlemen, that new Medicaid enrollees will be covered by the Federal Government. Every other State in the Union, when you sign up a new person on Medicaid, because you are expanding the number of people eligible for Medicaid, your State is going to have to make a matching contribution. In my State of South Carolina, with 12 percent unemployment, there is going to be one-half million more people eligible for Medicaid under this bill than exists today. It will cost my State of South Carolina $1 billion. But if you live in Nebraska, it doesn't cost you a damn dime because that is what it took to get a vote. If that is change we can believe in, count me out. If that is OK with the American people, I can tell you our best days are behind us. The insurance companies in Nebraska got a deal that no other insurance company in the Nation got. Physician-owned hospitals in Nebraska got a deal that nobody else got. Louisiana got $300 million to help with their Medicaid problems that nobody else got. If you want your country to be run in a more businesslike fashion, then you need to speak up. You have a chance between now and sometime in January, when this goes back to the House, to let your voice be heard. To my good friend from Nevada, the special deals in this bill are not special. They are the same old crap we have been putting up with for decades up here and that people thought was going to come to an end. It is going to hurt your children's ability to have half of what you have because they cannot make it because you are about to pass on a bill to them they cannot pay. What I hope will happen, I say to my good friend, the Senator from Nevada, is that the people will take their government back. If you think this deal from Nebraska is unacceptable, speak up and speak out and let the House Members know you want it changed.

Mr. GRAHAM

Mr. GRAHAM. They cannot be reconciled. I hope American seniors are paying attention. We are going to take $470 billion out of Medicare in the next decade and use that money to create new government programs. If you are senior citizens out there, the doctors and hospitals you go to--and it is hard to find Medicare doctors right now; a lot of doctors are reluctant to take Medicare patients because the reimbursement rates are so low. Rural hospitals are on their knees because the Medicare rates are so low. Take $470 billion out of the system and see what happens to the provider community. What does it mean to seniors? It means your chance of finding the doctor or hospital to take care of you as a Medicare patient is going down, not up. What does it mean to Medicare? It is due to go bankrupt by 2017. By taking money out of the system, not reforming Medicare, but using it as another purpose has accelerated the problems of Medicare. Not only has that promise been broken, we have done something no other Congress has ever done to Medicare--take money out of it and give it to somebody else. That is not right. We were within inches of expanding Medicare to people from 55 to 64 which would put the system at risk. My point is simply this. We started this debate as a way to reform health care, and a lot of us agree on many things. It wound up being what does the Democratic Party need to do to pass a bill. Nobody cares what is in this bill anymore. All the objections about the CLASS Act and about fiscal responsibility and about the public options being in or out have given way to get this thing done before Christmas. This is not about health care reform. It is about one political party feeling as though they have to pass a bill no matter what is in it. And that is sad.

Mr. GRAHAM. Let's talk about the CLASS Act a little bit more. It is a new program that doesn't exist today where the Federal Government, as I understand it, will be offering long-term health care insurance to the American people. It is a voluntary program at first, just like everything else around here. Guess who is going to sign up. It is called adverse selection. The sickest people in the country are going to sign up. Under the bill as it is written, it is just like what Senator Isakson said about the underlying bill. You collect taxes for 10 years; you pay out benefits for 6. That is the way you get the money to make the numbers come out right. Guess what happens in this CLASS Act, the new program no one has heard much about. You start collecting premiums in 2011, but you don't pay any benefits until 2016. Guess what happens. That generates $73 billion of money to be used to say to the American people that this bill is paid for. But when you ask the CBO about what happens after 2016, they say that by 2029, I think it is, the whole thing falls apart because the only people in the program are the sickest folks because it is a voluntary program, and at the end of the day, you have created a new entitlement, and everybody in this body is going to be rushing to subsidize premiums and get more people into this system. It will be another entitlement that grows, and CBO says it will be a death blow to our fiscal soundness. I ask the Senator from Georgia, when Senator Conrad, whom we all respect, said this is a giant Ponzi scheme that Bernie Madoff would have been proud of, do you think that is what he meant? You collect premiums and you make it look as if you have money you really do not have and you put off paying out benefits. And at the end of the day, would the Senator agree with me--I have a letter from October 23, 2009, from Senators Conrad, Landrieu, Lincoln, Warner, Lieberman, Bayh, and Nelson to the majority leader saying: Please take the CLASS Act out of the bill. Would the Senator agree that the CLASS Act is still in the bill and that anybody who votes to send this off to the President to become law has become a coconspirator to the giant Ponzi scheme?

Mr. GRAHAM. One last thought, if I may. The Senator mentioned the people in Nebraska. I know there are good, hard-working people all over the country, particularly in Nebraska. A lot has been said about Nebraska. I hope the people in Nebraska will be heard. This is not over. They may get 60 votes in the next couple days, but this is not over. We are going into the fourth quarter, and the most valuable player on our team is the American people. Speak up, speak out. If you don't like what is going on, if you don't like the phony baloney accounting, if you are upset about your taxpayer dollars being used to fund abortions, speak up. If you think there is a better way of doing business, let us know about it. There is a long way to go. It has to go back to the House. The House has a say. One Senator indicated the House better take it or leave it. That is not good government. That is not the way it works. Three of us have been in the House. I want you to know this is far from over. Public opinion matters to us all. To the American people who are concerned about this being a done deal, it is not. You can change the outcome. I hope you will get involved. At the end of the day, it is your country we are talking about.

Mr. GRAHAM. Everything the 2008 campaign was about has basically been discredited and discarded in this whole health care debate. I thought it was change we could believe in. I thought there was going to be a new way of doing business in Washington, and God knows there needs to be. I thought we were going to negotiate the health care bill on C-SPAN and everybody would have a seat at the table, including the drug companies. I thought we were going to allow reimportation of prescription drugs to allow American consumers to purchase drugs dramatically cheaper. Not only have we not had any negotiations on C-SPAN, you couldn't find the room where the negotiations were going on. The old way of doing business looks good compared to this process. There was a negotiation going on on the biggest proposal we will probably ever vote on, one-sixth of the economy, between two people: the Senate majority leader and the Senator from Nebraska. The second in command on the Democratic side told Senator McCain: I am just as in the dark as you are. We have gone to a promise of being on C-SPAN to everybody was in the dark. I don't know how that plays. I hope it plays poorly because at the end of the day, what we are doing here is absolutely unconscionable. When you thought it couldn't get any worse in Washington, when you thought your government had reached a low point, well, it has gotten worse. I will be talking about the 60th vote here soon, how they got that 60th vote. And if that is OK with the American people, which I do not believe it will be, if that is OK with our body, then our best days are behind us as a country.

Mr. GRAHAM. Will the Senator yield for another question?

Mr. GRAHAM. Well, this started out as a noble effort to reform health care because it needs reforming. The inflationary cost of the government is unsustainable. Medicare and Medicaid, as the Senators from Georgia indicated, are becoming huge problems that are unsustainable. Medicare is $36 trillion underfunded. Now, what does that mean? It means that over the next 75 years, there is a $36 trillion shortfall of money to pay the benefits that have been promised, and that has to be dealt with. What we are doing to Medicare makes the problem worse, not better. Medicaid is the largest expense in my State. It is a matching program. So listen to this--if you are out there on a Sunday with nothing else to do but listen to me. If you don't live in Nebraska, here is what is coming your way. Your State will be required to cover more people under Medicaid because the eligibility goes up to 133 percent above poverty, which is an increase over the current system. So throughout the Nation, there are going to be thousands more people enrolled in Medicaid, and every State, except one, is going to have to come up with matching money. I have 12 percent unemployment in South Carolina. My State is on its knees. I have a 31-percent African American population in South Carolina. Yet how did the majority get the 60th vote on this bill? It was the weekend before Christmas, and they were one vote short--here is what they did to get that one vote. They had a deal cooked up that no one knew about but the two people talking. There was no input from anybody other than the majority leader and the Senator from Nebraska. After that meeting was over, they came up with a 380-page amendment to a 2,000-page bill. They filed it yesterday, and we made them read it. We heard it for the first time yesterday. Then the majority leader filled up the tree so that there is no ability by any Republican or Democrat to amend their work product. This is a transparent new way of doing business: you cook up a deal in a back room--that is essentially sleazy, in my view--to allow one State, in order to get that vote, be held harmless for Medicare enrollees, and the rest of us have to go home and hear our constituents say: Why can't you in South Carolina and Georgia get that deal? What kind of Senator are you? Well, I will tell you; this is the kind of Senators we are. We are not going to do that. We are not going to put the whole Nation at risk and take a broken system and make it worse just to get a vote. No way in hell. On abortion, you are either for it or against it or you are indifferent. You can be whatever you are on abortion and be just as good an American as I am. I am pro-life and proud of it. Most of us in America, whether you are pro-choice or pro-life, don't want our Federal taxpayer dollars to be used to pay for abortions. For 32 years, the Hyde amendment has been the law of the land, preventing taxpayer dollars to be used for abortion. In this health care reform, guess what. That is exactly what is going to happen. There is a brave Democrat in the Congress--Bart Stupak, from a blue State--who stood up to his Democratic leadership and said: I will not vote for a bill that allows Federal taxpayer dollars in the form of subsidies to be used to fund abortion because I find that morally offensive, and I think most Americans agree with me. He brought the House to its knees, saying: You will not pass this bill to use federally funded Federal dollars to fund abortion. What did he get out of it? Nothing. Not one thing for Wisconsin. He got out of that deal the pride of knowing that he stood up for the unborn. So the bill comes to the Senate, and Senator Nelson from Nebraska tries to introduce the Stupak language that would be an absolute bar from using taxpayer dollars to fund abortion. He lost that amendment. He said he could not vote for a bill that would allow taxpayer dollars to be used to fund abortion. But then he gets in a room with Senator Reid, and he comes up with a compromise and he claims it solves the problem. The problem is, his claim is not accepted by all those who follow this. The compromise he has achieved on abortion is a miserable failure. Congressman Stupak says it is unacceptable. The National Right to Life Committee says it is unacceptable. The Nebraska Right to Life Committee says it is unacceptable. The Council of Catholic Bishops says it is unacceptable. There is not one pro-life group in this country that believes Senator Nelson has protected the rights of the unborn. So how, in good conscience, do you vote for a bill when that was the big issue? At the end of the day--one last thought--this bill would make an Enron accountant blush. They are talking about how it lowers the deficit by $132 billion. But they do not tell you that the $247 billion doctor fix is not in the bill. What am I saying? Over the next 10 years, doctors, under the 1997 balanced budget agreement, will have $247 billion taken out of their practices unless Congress acts. Since 1997, Congress, every year, has stepped to the plate and forgiven that cut, which is double digits. Everybody knows we are going to do that. But when it came to health care reform, they left out the doctor fix because if you include it, it no longer is revenue neutral. It no longer does what they say. They say this bill cuts the deficit by $132 billion, but if you include the $247 billion, it runs up the deficit in the first 10 years, and in the second 10 years it adds $2 trillion to the deficit. Long story short, this is what Enron did. People went to jail for doing this in the private sector. They took the liabilities of the company and they hid them, making their balance sheet look better than it actually was. So when you hear this reduces the deficit by $132 billion, they took out a liability that they know we are going to fund, just to cook the books. If this is going to be OK for the country, then we have no hope as a Nation of ever solving any hard problem. And I would like to say to my colleagues: I know you want to be home. I know everybody on the other side wants to be home. I know you want to find ways to solve hard problems. Troops in Afghanistan want to be home, too. At least they are away from home for a noble purpose. We are here trying to stop a legislative process that, if it becomes legitimate--if this becomes the OK way of doing business, giving one Senator a deal you will not give anybody else and putting the whole country at risk just to get one vote--then I hope the American people will rise up in righteous indignation and throw us all out because nobody should be representing the country this way.

Mr. GRAHAM

Mr. GRAHAM. I appreciate that. I appreciate the effort to try to solve a hard problem. It is easy to criticize in this business, and it is hard to bring folks together. Maybe one day we can solve a hard problem where we get 70 or 80 votes. I don't think this is that day. One thing I will point out about the process is that somehow between the time this started until now, something went wrong. This is what happened. This is what was said by Candidate Obama in January 2008: That's what I will do in bringing all parties together. Not negotiating behind closed doors, but bringing all parties together and broadcasting these negotiations on C-SPAN so that the American people can see what the choices are. In November 2007, he talked about, in his Presidency: We are going to have a big table and everybody is going to be invited--labor, employers, doctors, nurses, hospital administrators, patients, and advocate groups. The drug and insurance companies, they will also get a seat at the table, and we will work on this process publicly. It will be on C- SPAN. It will be streaming over the Net. March 2008: But here's the difference: I'm going to do it all on C-SPAN so the American people will know what's going on. August 2008: When we come together around this health care system, I am going to do it all in the open. I am going to do it on C-

Mr. GRAHAM. Mr. President, I assume it is our turn to talk a bit.

Mr. GRAHAM

Mr. GRAHAM. I thank my friend from Georgia, and I will try to be brief. I guess to say that we need to do health care reform is pretty obvious to a lot of people. The inflationary increases in the private sector, to businesses, particularly in the health care area, are unsustainable. A lot of individuals are having to pay for their own health care costs and are getting double-digit increases in premiums. In the public sector, the Medicare and Medicaid Programs are unsustainable. Medicare alone is $38 trillion underfunded. Over the next 75 years, we have promised benefits to the baby-boom generation and current retirees, and we are $38 trillion short of being able to honor those benefits. What has happened? We have created a government program that everyone likes, respects, and is trying to save, and actuarially it is not going to make it unless we reform it. So what have we done? In the name of health care reform, we have taken a program many senior citizens rely upon--all senior citizens, practically--and we have reduced the amount of money we are going to spend on that program and then taken the money from Medicare to create another program the government will eventually run. It makes no sense. We need to look at saving Medicare from impending bankruptcy. Why would we reduce Medicare by $464 billion and take the money out of Medicare, which is already financially in trouble, to create a new program? It makes no sense to me. That is not what we should be trying to do, from my point of view, to reform health care. The Medicare cuts Senator Chambliss was talking about, they are real. The way our Democratic colleagues and friends try to get to revenue neutrality on the additional spending, to get it down to where it doesn't score in a deficit format, is they take $464 billion out of Medicare to offset the spending that is required by their bill. Here is the question for the country: How many people in America really believe this Congress or any other Congress is actually going to reduce Medicare spending by $464 billion over 10 years? I would argue that if you believe that, you should not be driving. There is absolutely no history to justify that conclusion. In the 111th Congress, there were 200 bills proposed--and I was probably on some of them--to increase the amount of payments to Medicare. In 1997, we passed a balanced budget agreement when President Clinton was President slowing down the growth rate of Medicare. That worked fine for a while, until doctors started complaining, along with hospitals, about the revenue reductions. Every year since about 1999, 2000, we have been forgiving the reductions that were due under the balanced budget agreement because none of us want to go back to our doctors and say we are going to honor those cuts that were created in 1997 because it is creating a burden on our doctors. Will that happen in the future? You better believe it will happen in the future. In 2007, Senators Cornyn and Gregg introduced an amendment to reduce Medicare spending by $33.8 billion under the reconciliation instructions. It got 23 votes. I remember not long ago the Republican majority proposed reducing Medicare by $10 billion. Not one Member of the Democratic Senate voted for that reduction. They had to fly the Vice President back from Pakistan to break a tie over $10 billion. So my argument to the American people is quite simple: We are not going to reduce Medicare by $464 billion, and if we don't do that, the bill is not paid for, and that creates a problem of monumental proportions. If we do reduce Medicare by $464 billion and take the money out of Medicare to create another government program, we will do a very dishonest thing to seniors. We are damned if we do and damned if we don't. And during the whole campaign, I don't remember anybody suggesting that we needed to cut Medicare to create health care reform for non-Medicare services, but that is exactly what we are doing. To my Democratic colleagues: There will come a day when Republicans and Democrats are going to have to sit down and seriously deal with the underfunding of Medicare and with the impending bankruptcy of Medicare. Everything we are doing in this bill may make sense to save Medicare from bankruptcy, but it doesn't make sense to pay for another government-run health care program outside of Medicare. It makes no sense to take the savings we are trying to find in Medicare and not use them to save Medicare from what I think is going to be a budget disaster. So let it be said that this attempt to pay for health care, to make it revenue neutral, will require the Congress to do something with Medicare that it has never done before and is not going to do in the future. So the whole concept is going to fall like a house of cards. The way we have tried to pay for this bill has so many gimmicks in it, it would make an Enron accountant blush. Now, as to tort reform, quite frankly, I used to practice law and did mostly plaintiffs' work. I am not a big fan of Washington taking over State legal systems. I prefer to let States do what they are best at doing and let the Federal Government do a few things well--and we are doing a lot of things poorly. But if we are going to take over the entire health care system, if that is going to be the option available to us, then we also need to nationalize the way we deal with lawsuits. And to the AMA: There will come a day, if we keep going down the road here, where the Federal Government will determine how you get to be a doctor. There will be no State medical societies, and we will have a national system to police doctors. That is what is coming if we continue to nationalize health care. So, with Senator Chambliss, I have tried to come up with a more reasoned approach when it comes to legal reform. I have always believed people deserve their day in court. There is no better way to resolve a dispute than to have a jury do it. I would rather have a jury of independent-minded citizens decide a case than a bunch of politicians or any special interest group. So the jury trial, to me, is a sacrosanct concept that has served this country well. But one thing I have always been perplexed about in America is that the risk of suing somebody is very one-sided. Most developed nations have a loser pays rule. I think you should have your day in court, but there ought to be a downside to bringing another person into the legal system. So I think a loser pays rule will do more to modify behavior than any attempt to cap damages. Let both wallets be on the table. You can have your day in court, but if you lose, you are going to have to pay some of the other side's legal cost, which will make you think twice. As to the indigent person, most people who sue each other are not indigent. The judge would have the ability to modify the consequences of a loser pays rule, but we need to know going in that both wallets are on the table. Under our proposal, we have mandatory arbitration where the doctor and the patient will submit the case to an arbitration panel. If either side turns down the recommendation of the panel, they can go to court. But then the loser pay rule kicks in. I think that will do more to weed out frivolous lawsuits than arbitrarily capping what the case may be worth in the eyes of a jury. I think it really does create a financial incentive not to bring frivolous lawsuits that does not exist today. If there is a $500,000 damage cap, most of the people I know would say: I will take the $500,000. That is not much of a deterrent. But if we told someone they can bring this suit if the arbitration didn't go their way, but if they go into court after arbitration they risk some of their financial assets, people will think twice. I think that is why this is a good idea. The National Chamber of Commerce has endorsed it, and I am proud of the fact that they have endorsed it. I would rather not go down this road, but if we are going to nationalize health care we also need to do something about the legal system that is going to be affected by the nationalization of health care. A final comment I would like to make about what we are doing is that it is probably worrisome to people at home that we are about to change one-sixth of the economy and cannot find one Republican vote to help. I guess there are two ways to look at that: It is the problem of the Republican Party or maybe the bill is structured in a way that is so extreme there is no middle to it. I would argue that what we have done is abandon the middle for the extreme. It is pretty extreme, in my view, to take a program that is $38 trillion underfunded, cut it, and take the money to create a new program rather than saving the one that is in trouble. It is pretty extreme, in my view, to take a country that is so far in debt you cannot see the future and add $2.5 trillion of more debt onto a nation that is already debt laden in the name of reforming health care. When you look at the second 10-year window of this bill, it adds $2.5 trillion to the national debt. Is that necessary to reform health care? Do we need any more money spent on health care or should we just take what we spend and spend it more wisely? The first 10 years is a complete gimmick. What we do in the first 10 years of this bill is collect the $\1/2\ trillion in taxes for the 10-year period, and we don't pay any benefits until the first 4 years are gone. That is not fair. That is a gimmick. That catches up with you in the second 10-year period. So the reason we do not have any bipartisan support is because we have come up with a concept that has no middle to it. This is a power grab by the Federal Government. This is a chance to set in motion a single-payer health care plan that the most liberal Members of the House and the Senate have been dreaming of. This is a liberal bill written by and for liberals, and it is not going to get any moderate support on the Republican side--and there is some over here to be had-- and they are going to have a hard time convincing those red State Democrats that this is good public policy. That is where we find ourselves, trying to change one-sixth of the economy in a way that you don't have any hope of bringing people together. I would argue we should stop and start over. I thank my good friend from Georgia for trying to find a way to change lawsuit abuse in a more reasoned fashion.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, the bill we have before us today is a 2,074-page, multi-trillion-dollar bill written in the dark of night. This process brings back the worst of Washington. The substance of the bill raises taxes during a recession, compromises individual health care choices, cuts Medicare to pay for the uninsured and will eventually explode the deficit--the combination of which will jeopardize the finest health care system in the world without lowering costs. Today we are voting on the motion to proceed to the bill and I will vote no because this bill is broken beyond repair. Instead of proceeding to a flawed bill, we should stop and start over. Despite President Obama's repeated statements that Democrats would legislate in an open and transparent manner, this bill was drafted in secret and Republicans were excluded. As a candidate and now as President Obama, he even went so far as to tell the American people that the negotiations would be broadcast live on C-SPAN. Instead of the change Americans thought they voted for, we have gotten more of the same. The bill we are moving to consider will cost $2.5 trillion once fully implemented; nearly three times the official CBO score of $848 billion. The Democrats are playing a shell game to hide the true cost of this legislation. With this bill we get 10 years of taxes and only 6 years of programs. While some may claim that the bill is deficit neutral, the Federal Government's financial commitment to health care under this bill actually grows. Health care costs are not contained or reduced, they are simply offset by reductions and tax increases elsewhere in the Federal ledger. A central premise of this legislation is that Congress will allow nearly half a trillion dollars in Medicare cuts to go into effect. Congress has not had the political will to allow these types of cuts to stand in the past, so why should we believe that future Congresses will not follow suit. Case in point, the ``doc fix.'' When we passed the Balanced Budget Act in 1997, we included a formula to limit the cost growth in physician spending in Medicare. Congress allowed that formula to reduce payments to physicians only once and has not done so again. We leave the flawed formula in place and each year we act to block the scheduled cuts to physician payments instead of fixing the problem. This bill increases doctor payments by half a percent in 2010 and then assumes a 23-percent cut in 2011, budget gimmickry at its finest. Medicare is currently $36 trillion in the hole, but as we have seen, Congress doesn't have the will to cut Medicare by fifty cents, much less $500 billion. When we tried to rein in Medicare costs in the budget in 2007, we proposed $33 billion in savings and only got two dozen votes. In a nod to Congress' traditional actions, or lack thereof, Democrats even included an Independent Medicare Advisory Board that can cut Medicare provider payments if Congress fails to act. Cutting an already cash-strapped program is not the way to finance health care for the uninsured. In addition to the nearly half trillion dollars in cuts contained in this bill, we get a half trillion dollars in new and increased taxes. The bill would tax Americans who choose higher cost insurance plans, it would tax employers for not providing health coverage, it would tax Americans for not buying health coverage, and it would increase the Medicare payroll tax on some Americans to fund a new health care entitlement program. In the midst of the worst recession this country has seen in decades, how can these job-killing tax increases be justified? I believe the provisions contained in this bill are bad for America. We must work to enact policies that preserve patient access to care, rein in ever increasing costs in the health system while ensuring the viability of current programs, and promote choice. This bill is a budget buster that does none of those things. Mr. President, I cannot support this bill.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I ask my colleagues to join me in honoring the memory of a dedicated public servant and leader, Jerry Zucker. I also ask that we pay tribute to Jerry's wife Anita. After a lifetime of unprecedented service to his State and Nation as a businessman and philanthropist, Mr. Zucker passed away in Charleston, SC, on April 12, 2008, at the age of 58. His death was a loss to Charleston and the Nation. While he will be remembered by most as a successful businessman, I will remember him as a larger-than-life figure who donated generously and quietly to many causes. Born in Tel-Aviv, Isreal, Mr. Zucker came to the United States with his family in 1952. He grew up in Charleston, SC, and Jacksonville, FL, and graduated from the University of Florida with a triple major in mathematics, chemistry, and physics. He later received a masters in electrical engineering from Florida State University in Tallahassee, FL. Zucker was a scientist and inventor before becoming a businessman. Over his lifetime he had more than 350 inventions and patents, including his development of the pacemaker. In 1983, he founded the InterTech Group, a global conglomerate specializing in fabrics and plastics for a range of uses. As founder, chairman, and chief executive officer of the company, he helped grow the InterTech Group into one of the country's largest privately held businesses. Jerry was also CEO of Toronto-based Hudson's Bay Company, Canada's largest department store chain. He was the first American citizen to lead the company. After his death, Anita took over as chairwoman and chief executive officer of Hudson's Bay Company. She became the first woman to hold the position in the company's 338-year history. Jerry is greatly admired for what he did outside of the business world. Jerry was a humble philanthropist. He gave millions of dollars to a wide range of charities, from his synagogue in Charleston to international medical missions. Anyone who reached out to him for help never went away with an empty hand. And for every charitable check Zucker wrote, he invested numerous behind-the-scene volunteer hours. He quietly and unassumingly delivered goodie baskets to holiday volunteers, helped the local Boy Scouts of America's Coastal Carolina Council, and served as chairman of the South Carolina Aquarium. Because of his impact on the Charleston community, North Charleston recently dedicated their newest middle school to Zucker's memory, naming it the Jerry Zucker Middle School of Science. Together with his wife Anita, he is celebrated in South Carolina and around the Nation for his philanthropic and community endeavors, as well as quiet leadership. His personal mission was ``repairing the world,'' which he implied to be a work in progress. I am confident Anita will continue this mission. Through Anita and the Zucker Family Foundation, through his countless gifts of wisdom, ingenuity, dollars, and time, Jerry Zucker will continue to repair the world. I ask that the Senate join me in commemorating Mr. Zucker's lifelong dedication to the service of our country and to the State of South Carolina. The best tribute we can give to Jerry is to continue his vision and follow in his humble footsteps.

Mr. GRAHAM

Mr. GRAHAM. Madam President, I am disappointed that on November 5, 2009, the Senate voted to table my amendment to prohibit the use of funds to prosecute individuals involved in the September 11, 2001, attacks in article III courts. As I stated at the time of the vote, it would be a grave mistake to prosecute these detainees in civilian court instead of the newly revamped military commissions. Two hundred forty-nine family members of the victims of the September 11 attacks wrote a letter in support of my amendment. They know better than anyone that the attacks that took their loved ones were war crimes and that criminalizing this war would be dangerous and unwise. I would like to submit their letter in support of my amendment for the record, and I would like to give a special thanks to Debra Burlingame for her leadership on this issue. While I am disappointed in the vote on this amendment, I hope that in the future we will heed the counsel of those who lost the most in the terrible attacks on our country--the family members of 9/11 victims. November 5, 2009. U.S. Senate, U.S. Capitol, Washington, DC. Dear Senators: On September 11, 2001, the entire world watched as 19 men hijacked four commercial airliners, attacking passengers and killing crew members, and then turned the fully-fueled planes into missiles, flying them into the World Trade Center twin towers, the Pentagon and a field in Shanksville, Pennsylvania. 3,000 of our fellow human beings died in two hours. The nation's commercial aviation system ground to a halt. Lower Manhattan was turned into a war zone, shutting down the New York Stock Exchange for days and causing tens of thousands of residents and workers to be displaced. In nine months, an estimated 50,000 rescue and recovery workers willingly exposed themselves to toxic conditions to dig out the ravaged remains of their fellow citizens buried in 1.8 million tons of twisted steel and concrete. The American people were rightly outraged by this act of war. Whether the cause was retribution or simple recognition of our common humanity, the words ``Never Forget'' were invoked in tearful or angry rectitude, defiantly written in the dust of Ground Zero or humbly penned on makeshift memorials erected all across the land. The country was united in its determination that these acts should not go unmarked and unpunished. Eight long years have passed since that dark and terrible day. Sadly, some have forgotten the promises we made to those whose lives were taken in such a cruel and vicious manner. We have not forgotten. We are the husbands and wives, mothers and fathers, sons, daughters, sisters, brothers and other family members of the victims of these depraved and barbaric attacks, and we feel a profound obligation to ensure that justice is done on their behalf. It is incomprehensible to us that members of the United States Congress would propose that the same men who today refer to the murder of our loved ones as a ``blessed day'' and who targeted the United States Capitol for the same kind of destruction that was wrought in New York, Virginia and Pennsylvania, should be the beneficiaries of a social compact of which they are not a part, do not recognize, and which they seek to destroy: the United States Constitution. We adamantly oppose prosecuting the 9/11 conspirators in Article III courts, which would provide them with the very rights that may make it possible for them to escape the justice which they so richly deserve. We believe that military commissions, which have a long and honorable history in this country dating back to the Revolutionary War, are the appropriate legal forum for the individuals who declared war on America. With utter disdain for all norms of decency and humanity, and in defiance of the laws of warfare accepted by all civilized nations, these individuals targeted tens of thousands of civilian non-combatants, brutally killing 3,000 men, women and children, injuring thousands more, and terrorizing millions. We support Senate Amendment 2669 (pursuant to H.R. 2847, the Commerce, Justice, Science Appropriations Act of 2010), ``prohibiting the use of funds for the prosecution in Article III courts of the United States of individuals involved in the September 11, 2001 terrorist attacks.'' We urge its passage by all those members of the United States Senate who stood on the senate floor eight years ago and declared that the perpetrators of these attacks would answer to the American people. The American people will not understand why those same senators now vote to allow our cherished federal courts to be manipulated and used as a stage by the ``mastermind of 9/11'' and his co-conspirators to condemn this nation and rally their fellow terrorists the world over. As one New York City police detective, who lost 60 fellow officers on 9/11, told members of the Department of Justice's Detainee Policy Task Force at a meeting last June, ``You people are out of touch. You need to hear the locker room conversations of the people who patrol your streets and fight your wars.'' The President of the United States has stated that military commissions, promulgated by congressional legislation and recently reformed with even greater protections for defendants, are a legal and appropriate forum to try individuals captured pursuant the 2001 Authorization for the Use of Military Force Act, passed by Congress in response to the attack on America. Nevertheless, on May 21, 2009, President Obama announced a new policy that Al-Qaeda terrorists should be tried in Article III courts ``whenever feasible.'' We strongly object to the President creating a two-tier system of justice for terrorists in which those responsible for the death of thousands on 9/11 will be treated as common criminals and afforded the kind of platinum due process accorded American citizens, yet members of Al Qaeda who aspire to kill Americans but who do not yet have blood on their hands, will be treated as war criminals. The President offers no explanation or justification for this contradiction, even as he readily acknowledges that the 9/11 conspirators, now designated ``unprivileged enemy belligerents,'' are appropriately accused of war crimes. We believe that this two-tier system, in which war criminals receive more due process protections than would-be war criminals, will be mocked and rejected in the court of world opinion as an ill-conceived contrivance aimed, not at justice, but at the appearance moral authority. The public has a right to know that prosecuting the 9/11 conspirators in federal courts will result in a plethora of legal and procedural problems that will severely limit or even jeopardize the successful prosecution of their cases. Ordinary criminal trials do not allow for the exigencies associated with combatants captured in war, in which evidence is not collected with CSI-type chain-of-custody standards. None of the 9/11 conspirators were given the Miranda warnings mandated in Article III courts. Prosecutors contend that the lengthy, self-incriminating tutorials Khalid Sheikh Mohammed and others gave to CIA interrogators about 9/11 and other terrorist operations--called ``pivotal for the war against Al-Qaeda'' in a recently released, declassified 2005 CIA report--may be excluded in federal trials. Further, unlike military commissions, all of the 9/11 cases will be vulnerable in federal court to defense motions that their prosecutions violate the Speedy Trial Act. Indeed, the judge presiding in the case of Ahmed Ghailani, accused of participating in the 1998 bombing of the American Embassy in Kenya, killing 212 people, has asked for that issue to be briefed by the defense. Ghailani was indicted in 1998, captured in Pakistan in 2004, and held at Guantanamo Bay until 2009. Additionally, federal rules risk that classified evidence protected in military commissions would be exposed in criminal trials, revealing intelligence sources and methods and compromising foreign partners, who will be unwilling to join with the United States in future secret or covert operations if doing so will risk exposure in the dangerous and hostile communities where they operate. This poses a clear and present danger to the public. The safety and security of the American people is the President's and Congress's highest duty. Former Attorney General Michael Mukasey recently wrote in the Wall Street Journal that ``the challenges of terrorism trials are overwhelming.'' Mr. Mukasey, formerly a federal judge in the Southern District of New York, presided over the multi-defendant terrorism prosecution of Sheikh Omar Abel Rahman, the cell that attacked the World Trade Center in 1993 and conspired to attack other New York landmarks. In addition to the evidentiary problems cited above, he expressed concern about courthouse and jail facility security, the need for anonymous jurors to be escorted under armed guard, the enormous costs associated with the use of U.S. marshals necessarily deployed from other jurisdictions, and the danger to the community which, he says, will become a target for homegrown terrorist sympathizers or embedded Al Qaeda cells. Finally, there is the sickening prospect of men like Khalid Sheikh Mohammed being brought to the federal courthouse in Lower Manhattan, or the courthouse in Alexandria, Virginia, just a few blocks away from the scene of carnage eight years ago, being given a Constitutionally mandated platform upon which he can mock his victims, exult in the suffering of their families, condemn the judge and his own lawyers, and rally his followers to continue jihad against the men and women of the U.S. military, fighting and dying in the sands of Iraq and the mountains of Afghanistan on behalf of us all. There is no guarantee that Mr. Mohammed and his co- conspirators will plead guilty, as in the case of Zacarias Moussaoui, whose prosecution nevertheless took four years, and who is currently attempting to recant that plea. Their attorneys will be given wide latitude to mount a defense that turns the trial into a shameful circus aimed at vilifying agents of the CIA for alleged acts of ``torture,'' casting the American government and our valiant military as a force of evil instead of a force for good in places of the Muslim world where Al Qaeda and the Taliban are waging a brutal war against them and the local populations. For the families of those who died on September 11, the most obscene aspect of giving Constitutional protections to those who planned the attacks with the intent of inflicting maximum terror on their victims in the last moments of their lives will be the opportunities this affords defense lawyers to cast their clients as victims. Khalid Sheikh Mohammed and his co-conspirators are asking to plead guilty, now, before a duly-constituted military commission. We respectfully ask members of Congress, why don't we let them? Respectfully submitted, (Signed by 249 Family members).

Mr. GRAHAM

Mr. GRAHAM. Colleagues, we are about to take a vote. It is a tough vote, and I regret we are having to do this, but at the end of the day, I have a view that this country is at war. I think most of you share it. Our civilian court system serves us well, but we have had a long history of having military commission trials when the Nation is at war. The military commission bill which this Congress wrote is reformed. It is new, it is transparent, and it is something I am proud of. This amendment says that the six coconspirators who planned 9/11-- Khalid Shaikh Mohammed at the top of the list--will not be tried in Federal court because the day you do that, you will criminalize this war. In the first attack on the World Trade Center, the Blind Sheik was tried in Federal court, and the unindicted coconspirators list wound up in the hands of al-Qaida. Military commissions are designed to administer justice in a fair and transparent way, but they know and understand we are at war. Our civilian courts are not designed to deal with war criminals; the military system is. Khalid Shaikh Mohammed, the mastermind of 9/11, didn't rob a liquor store; he didn't commit a crime under domestic criminal law; he took this Nation to war and he killed 3,000 of our citizens. He needs to have justice rendered in the system that recognizes we are at war. Please support this idea of not criminalizing the war the second time around.

Mr. GRAHAM. To my dear friend, this is the biggest issue of the day: Are they criminals? Are they warriors? Does it matter? These people are not criminals, they are warriors, and they need to be dealt with in a legal system that recognizes that. And to the 214 9/11 families who support my amendment, I understand that the people who killed your family members are at war with us. I hope the Senate will understand that so we don't have another.

Mr. GRAHAM. Mr. President, I appreciate Senator Levin allowing me to speak now. I know we are going back and forth. I appreciate that. To my friend, Senator Durbin, it is my honest desire that as we move forward with what to do with Guantanamo Bay, we can find some bipartisanship and close the facility. I am one of the few Republicans who expressed that thought, simply because I have listened enough to our commanders to know--General Petreaus, Admiral Mullen, and others-- that Guantanamo Bay has become a symbol for recruitment and propaganda usage against American forces in the war on terror. It is probably the best run jail in the world right now, to those of us who have been down there. To the ground forces, I wish to acknowledge your patriotism and your service. It is a tough place to do duty because there are some pretty tough characters down there. At the end of the day, I have tried to be helpful where I could, and I will tell you in a little detail why I am offering this amendment. But my hope was that when President Obama was elected, we could find a way to reform Guantanamo Bay policy, detainee policy, because I have been a military lawyer for 25 years. I do understand detainee policy affects the war effort. If we mess it up, if we abuse detainees, we can turn populations against us that will be helpful in winning the war. One of the great things that happened in World War II is that we had over 400,000 German prisoners, Japanese prisoners housed in the United States. We took 40,000 hard-core Nazis from the British and put them in American military jails in the United States. So this idea that we can't find a place for 200 detainees in America, I don't agree with. We have done that before. These people are not 10 feet tall. They are definitely dangerous, but as a nation I believe we could start over. By closing Guantanamo Bay in a logical, rational way, we would be improving our ability to effect the outcome of the war in the Mideast because we would be taking a tool away from the enemy. President Obama and Senator McCain both, when they were candidates, agreed with the idea of closing Guantanamo Bay and reforming interrogation policy. To most Americans, it is kind of: Why are we worried about what we do with these guys, because they would cut our heads off. You are absolutely right. It is not lost upon me or any other military member out there that the enemy we are dealing with knows no boundaries and they are barbarians and brutal. The question is not about them but about us. The fact that we are a civilized people is not a liability, it is an asset. So when you capture a member of al-Qaida, I have always believed it becomes about us, not them. We need interrogation techniques that will allow us to get good intelligence and make the country safe. We need to understand we are at war, and the people we are dealing with are some of the hardest, meanest people known since the Nazis. But if you try to say, in the same breath, that anything goes to get that information, it will come back to haunt you. So some of the interrogation techniques we have used that come from the Inquisition got us some information, but I can assure you it has created a problem. Ask anybody in the Mideast who has to deal with America. They will tell you this has been a problem. You don't need to do that to protect this country. You can have interrogation techniques that get you good information but also adhere to all your laws. As to the trials, some people wonder: Why do we care about this? They wouldn't give us a trial. You are absolutely right. The fact that our country will give the worst terrorist in the world a trial with a defense attorney, for free; a judge who is going to base his decision on facts and law and not prejudice; a jury, where the press can show up and watch the trial; and the ability to appeal the result, makes us stronger, not weaker. So count me in for starting over with Guantanamo Bay, with a new legal process that recognizes we have had abuses in the past and we are going to chart a new course. Regarding the Military Commission Act that just passed the Congress, I wish to say publicly that Senator Levin was a great partner to work with. The military commission system we have in place today has been reformed. I think it is a model justice system that I will put up against any in the world, including the International Criminal Court at the Hague, in terms of due process rights for detainees. It also recognizes we are at war. This military commission system, while transparent, with the ability to appeal all verdicts to the civilian system, has safeguards built in it to recognize we are at war and how you handle evidence and access the evidence and intelligence sources are built into that military system that are not built into civilian courts. Since this country was founded, we have historically used military commissions as a venue to try suspected war criminals caught on battlefields. Why have I brought forth this amendment? I have been told by too many people, with reliable access, that the administration is planning on trying Khalid Shaikh Mohammed--the mastermind of 9/11, the perpetrator of the attacks against our country in Washington, Pennsylvania, and New York--in Federal court in the lower district of Manhattan. If that is true, you have lost me as a partner. Why do I say that? It would be the biggest mistake we could possibly make, in my view, since 9/11. We would be giving constitutional rights to the mastermind of 9/11, as if he were any average, everyday criminal American citizen. We would be basically saying to the mastermind of 9/ 11, and to the world at large, that 9/11 was a criminal act, not an act of war. I do believe in prosecutorial discretion and executive branch discretion. I introduced this amendment reluctantly but with all the passion and persuasion I can muster to tell my colleagues: Act now, so we will get this right later. Congress said we are not going to fund the closing of Gitmo. Well, is Congress meddling in the ability of the Commander in Chief to run a military jail? Hell, yes, because we don't know what the plan is. We have an independent duty as Members of Congress to make sure there is balance. This Nation is at war. It is OK for us to speak up. As a matter of fact, it has been too much passing-- too many passes during the Bush administration, where Congress sort of sat back and watched things happen. Don't watch this happen. Get on the record now, before it is too late, to tell the President we are not going to sit by as a body and watch the mastermind of 9/11 go into civilian court and criminalize this war. If he goes to Federal court, here is what awaits: a chaos zoo trial. Yes, we have taken people into Federal court before for acts of terrorism. We took the Blind Sheik--the first guy to try to blow up the World Trade Center--and put him in civilian court. We treated these people as common criminals. What a mistake we made. What if we had treated them as warriors rather than a guy who robbed a liquor store? Where would we have been in 2001 if we had the foresight in the 1990s to recognize that we are at war and these people are not some foreign criminal cartel; they are warriors bent on our destruction who have been planning for years to attack this country and are planning, as I speak, to attack us again? We are not fighting crime. We are fighting a war. The war is not over. What happened in the Blind Sheik trial? Because it was a civilian court, built around trying common criminals, the court didn't have the protections military commissions will have to protect this Nation's secrets and classified information. As a result of that trial, the unindicted coconspirator list was provided to the defense as part of discovery in a Federal civilian criminal court. That unindicted coconspirator list was an intelligence coup for the enemy. It went from the defense counsel, to the defendant, to the Mideast. Al-Qaida was able to understand, from that trial, whom we were looking at and whom we had our eye on. During the 1990s, we tried to treat these terrorist warriors as just some other form of crime. It was a mistake. Don't repeat it. If you take Khalid Shaikh Mohammed, the mastermind of 9/11, and put him in Federal civilian court, you will have learned nothing from the 1990s. You will have sent the wrong signal to the terrorists and to our own people. Judge Mukasey, who presided over the Blind Sheik trial, wrote an op- ed piece about how big a mistake it would be to put the 9/11 coconspirators into Federal court. He went into great detail about the problems you would have trying these people in a civilian court. He became our Attorney General. So if you don't listen to me, listen to the judge who presided over the trial in the 1990s. I don't know what they are going to do in the Obama administration. If I believed they were going to do something other than take Khalid Shaikh Mohammed to Federal court in New York, I would not introduce this amendment. I know this is not a cavalier thing to do. I have taken some grief for trying to help the President form new policies with Guantanamo Bay and reject the arguments made by some of my dear friends that these people are too dangerous to bring to the United States. We can find a way to bring them to the United States; we just have to be smart about it. To our military men and women who will be administering the commission, my biggest fear has always been that the military commission system will become a second-class justice system. Nothing could be further from the truth. The men and women who administer justice in the military commission system are the same judge advocates and jurors who administer justice to our own troops. The Judge Advocate General of the Navy said the new military commission system is such that he would not hesitate to have one of our own tried in it. We will gain nothing, in terms of improving our image, by sending the mastermind of 9/11 to a New York civilian court, giving him the same constitutional rights as anybody listening to me in America who is a citizen. The military commission system will be transparent. He will have his say in court. He will have the ability to appeal a conviction to our civilian judges. He will be defended by a military lawyer--or private attorney, if he wants to be. He will be presumed innocent until found guilty. It will be required by the ``beyond a reasonable doubt'' standard for him to be found guilty of anything. For those who are wondering about military commissions, I can tell you the bill we have produced I will put up against any system in the world. To those who think it is no big deal to send Khalid Shaikh Mohammed to Federal court, I could not disagree with you more. What you will have done is set in motion the dynamic that led to criminalizing the war in the 1990s. You will have lost focus, yet again. You will have been lured into the sense that we are not at war, that these are just a bunch of bad people committing crimes. The day we take the mastermind of 9/11 and put him in Federal court, who the hell are you going to try in the military commission? How can you tell that detainee you are an enemy combatant, you are a bad guy? You are at war, but the guy who planned the whole thing is just a common criminal. What a mistake we would make. It is imperative this Nation have a legal system that recognizes we are at war and that we have rules to protect this country's national security balance against the interests and the rights of the accused detainee. The military commission forum has created that balance. It is a system built around war, a system built around the rules of military law, a system that recognizes the difference between a common criminal and a warrior, a system that understands military intelligence is different than common evidence. If we do not use that system for the guy who planned 9/11, we will all regret it. My amendment is limited in scope. It is a chance for you, as a Member of the Senate, to speak up about what you would like to see happen as this Nation moves forward and our desire to correct past mistakes and defend this Nation, which is still at war this very day. It is a chance for you to have a say, on behalf of your constituents, as to how they would like to see this Nation defend itself. I argue that most Americans--not just the 9/11 families--would be very concerned to learn that the man who planned the attacks that killed 3,000 of our fellow citizens--who would do it again tomorrow--is going to be treated the same as any other criminal. No good will come from that. You will have compromised the military commission system beyond repair. You will have adopted the law enforcement model that failed us before, and we will not be a better people. I, along with Senator Levin, was at Guantanamo Bay the day Khalid Shaikh Mohammed appeared before the Combat Status Review Tribunal. We were in the next room. We listened on a monitor. You could see him and could hear the chains rattle next door when he went through great detail about 9/11 and all the other acts of terrorism he planned against our country. I never will forget when he told the military judge that he was a high-ranking commander in the al-Qaida military organization and he appreciated being referred to as a military commander. Some would say: You don't want to elevate this guy. What I would say is you want to understand who he is. If you think he is a common criminal, no different than any other person who wants to hurt people, you have made a mistake. Khalid Shaikh Mohammed is bent on our destruction. He did not attack us for financial gain. He attacked us because he hates us. He is every bit as dangerous as the Nazis. These people we are fighting are very dangerous people. I am insistent they get a trial consistent with our values, that they do not get railroaded, that they get a chance to defend themselves. The media will see how the trial unfolds and you can see most of it, if not all of it. But I am also insistent that we not take our eye off the ball. It has been a long time since we have been attacked. For a lot of people--those who were on the front lines of 9/ 11--they relive it every night. It replays itself over and over every night of their lives. For the rest of us, please do not lose sight of the fact that this country is engaged in an armed conflict with an enemy that knows no boundaries, has no allegiance to anything beyond their radical religion, and is conspiring to attack us as I speak. When we try them, we need to understand that the trial itself is part of the war effort. How we do the trial can make us safer or it can make us weaker. If we criminalize this war, it would take the man who planned the attacks of 9/11 and put him in civilian court. It is going to be impossible with a straight face to take somebody under him and put him in a military court. And the day you put him back in civilian court, you are going to create the problems Judge Mukasey warned us against. You are going to have evidence compromised and you are going to regret it. I hope to continue to work with the administration to find a way to close Guantanamo Bay, to create a transparent legal system that will allow every detainee their day in court, due process rights they deserve based on our law, not based on what they have done but based on who we are as a people. The 20th hijacker said this in Federal court--the victims were allowed to testify about the impact of 9/11. They had a U.S. Navy officer talking about being at the Pentagon and the impact on her life and on her friends. During the testimony, the officer started to cry. Here is what the defendant said, Moussaoui, the 20th hijacker: I think it was disgusting for a military person to pretend that they should not be killed as an act of war. She is military. It was a Navy female officer. She should expect that the people who are at war with her will try to kill her. This is the 20th hijacker in civilian court: I will never, I will never cry because an American bombed my camp. If you have any doubt that we are at war, the one thing you ought to be certain of, they have no doubt that they are at war with us. The one thing the men and women who go off to fight this war should expect of their government and of their Congress is to watch their back the best we can. We would be doing those men and women a great disservice if we put the mastermind of 9/11, who killed the friends of this Navy officer, in a civilian court that could lead to compromising events that would make their job harder. We would be doing them a disservice to act on our end as if we are not at war. Mr. President, I say to my colleagues, they have a chance to speak. They have a chance to be on the record for their constituents to send a signal that needs to be sent before it is too late. Here is what I ask them to say with their vote: I believe we are at war and that the legal system we are going to use to try people who attacked this country and killed 3,000 American citizens should be a military legal system, consistent with us being at war. I will not, with my vote, go back to the law enforcement model that jeopardized our national security back in the nineties. I will insist that these detainees have a full and fair trial and that they be treated appropriately. But I will not, with my vote, take the mastermind of 9/11, the man who planned the attacks, who would do it tomorrow, and give him the same constitutional rights as an average, everyday American in a legal system that is not built around being at war. If they will say that, we will get a good outcome. If they equivocate, we are slowly but surely going to create a legal hodgepodge that will come back to haunt us. I yield the floor.

Mr. GRAHAM

Mr. GRAHAM. Madam President, I rise today to state for the record that Congress has spoken on the major issues and concerns that have been raised about the Military Commissions Act of 2006. As one of the principal authors, I worked closely with the Chairman and Ranking Member to amend the language of the Military Commissions Act to address the concerns of the new administration, the judiciary, and other respected groups who have voiced concerns about military commissions. I would like to thank Chairman Levin and Ranking Member McCain and their respective staffs for their hard work and many hours they dedicated to this bill. A common understanding for all as we move forward is that our country is at war and we are fighting a vicious, dedicated enemy who preys upon civilians and has no respect for the rule of law and human life. There are three key areas in which Congress has clarified the law, and I would like to briefly address these. First, this legislation raises the bar to provide an even higher level of protection and process than enemy combatants--or enemy belligerents--have ever had in the history of war, much less since the Geneva Conventions were adopted. Common Article 3 of the Geneva Conventions prohibits the passing of sentences and the carrying out of executions without judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. The detainees who are subject to MCA jurisdiction are not qualified for the privileged status of Prisoner of War. However, because we have such deep respect for due process in this country, Congress constituted a court under the MCA of 2006, in accordance with our Constitution, to provide appropriate due process to those who conducted themselves outside the law of armed conflict. In the current legislation, we now add additional due process within this court. Second, in the legal history of these commissions there has always been robust debate about how to handle sensitive classified information. The commissions by definition discuss the most sensitive elements of our national security and process cases against the most dangerous and committed enemies of our country. In the current legislation we have carefully drafted new protections to ensure our Nation's intelligence is protected, while also allowing the defendants to see the information presented against them. These procedures were modeled on the Classified Information Procedures Act and will therefore allow the judiciary to look to the developed case law of our Federal courts when issues arise that may not be entirely answered by the plain text of the statute. We intend that this case law be instructive but not necessarily binding on the military commissions. We have also included language to clarify that the national security privilege may be invoked by the government at any time in order to protect our national security. Thirdly, the MCA of 2009 offers even more protections for the defendants. The new administration came to office voicing a number of concerns about the MCA of 2006. With their party also in control of both houses of Congress, there has been ample discussion and opportunity to draft new text addressing those concerns. During hearings before our committees, administration officials expressed both their official and personal concerns with respect to various aspects of the commissions. As an equal branch of government, Congress considered all those issues and addressed them in this new legislation. Among those concerns was the question of whether Congress had created an ex post facto issue in the MCA of 2006. Congress has modified the language on this issue in the current legislation, but has not changed its position. As the branch of government empowered to write the laws under our Constitution, Congress has codified offenses which have traditionally been tried by military commissions under customary international law. There is no need to go into a detailed history of military commissions and war crimes trials here, but it should be noted that Congress clearly states in this act that those who aid unlawful combatants are subject to the Commission's jurisdiction to the same extent as those who directly commit the crimes. Further, we understand that there will always be a debate about when the war with al-Qaida and violent extremists first began. Osama bin Laden formally declared war against the United States in a fatwa in 1996, but, of course, the first World Trade Center bombing was in February of 1993. Understanding the ambiguity of this issue, Congress has deliberately stated that the military commissions may exercise jurisdiction over offenses that occurred before the date of enactment. In closing, I would like to note that in passing these reforms to the MCA of 2006, Congress has once again affirmed the legitimacy of the commissions, their sufficiency of due process, and their rightful place in our juris prudence. Our country is at war with an enemy that has clearly stated they will continue to disregard the law of war and commit war crimes. The military commissions are the most appropriate judicial forum in which to try those individuals.