Lindsey Graham

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I would like to return the compliment that Senator Levin gave to myself, Senator McCain, and Senator Warner. I have found Senator Levin and his staff to be very good to work with. Sometimes we reach agreement and sometimes we don't, but all the time we try. As to my staff, I appreciate the tons of time they have spent trying to give us the best product we can get in the legislative process that will adhere to our values and allow the war effort to move forward in an effective way. As to the difference between the committee bill, which we wrote and supported, and the compromise we reached with the White House, which we wrote and support, there are some differences. I think some of them we have addressed with Senator Levin's staff. They were very helpful. He found some language which was dropped inadvertently which made the bill stronger. I would just like to suggest that whatever military experience I have had pales in comparison to the men and women who are in charge of today's military legal system. I am a reservist. I come in and out of military law. I spent 6\1/2\ years on active duty, and I really enjoyed my time. I dealt a lot in the court-martial process as a prosecutor and a defense attorney. But as a reservist and Guard member, it has been a part-time job. But those who do this full time supported the administration's proposal when it came to the admission of evidence by the military judge. I will, at an appropriate time, introduce that into the Record. I believe the JAGs are a good source of advice. That doesn't mean they are the only source of advice. That doesn't mean that because the Judge Advocate Generals of all four branches say so, we need to do what they say. It would be wise to just listen, and I have tried to listen. Sometimes I agree; sometimes I don't. But they have said unanimously, it is my understanding, that the evidentiary standards in terms of admission of evidence, where the judge will determine whether the evidence is reliable and probative using the totality of circumstances to create justice, was a sufficient legal standard, and they were supportive of that standard. So this idea that we are going to allow coerced evidence into a trial purposely, that we made a conscious decision from the committee bill to the compromise to change course and take everything we had said before and just throw it over in a ditch, quite honestly, makes no sense. Whatever motives you would like to attribute to the effort here, I can assure my colleagues I want to create a process that would be acceptable if our troops found themselves subject to it. And every military Judge Advocate, every admiral, and every general, believes the evidentiary standard in this committee bill is legally acceptable and appropriate. Why the difference between December 30, 2005, and before? The reason we have a two-tiered system is because in 2005, due to the hard work of Senator McCain and Senator Levin--who was a champion in trying to bring this about on the Democratic side--we were able to make a policy statement of the United States that says: Cruel and inhumane and degrading treatment as a policy will be forbidden. And we referenced the 5th, 8th, and 14th amendments standard called ``shock the conscience'' that existed in the convention on torture. All bills have excluded evidence that violates the torture statute. It is a per se exclusion. If the military judge, in their discretion, believes that the conduct in front of the court amounts to torture, in violation of the torture statute, it does not come into evidence. The committee bill had a per se exclusion for a violation of the Detainee Treatment Act, and it has been changed, and here is why: The Detainee Treatment Act is a policy statement, not an evidentiary standard. The Detainee Treatment Act says that the Government and its agents and agencies will not engage in cruel, inhumane, and degrading treatment. I would argue that to exclude evidence in a military commission that may run afoul of degrading treatment would create a higher standard for a terrorist than our own military members have in their own courts-martial. So I think the policy statement ``cruel and inhumane and degrading'' should not be an evidentiary standard, and it is not. But what we did do to bolster that policy statement is we took the 5th, 8th, and 14th amendment ``shock the conscience test'' and said: From the date of the Detainee Treatment Act forward, that will be an area that the judge has to make an inquiry into regarding the admission of evidence. The reason we didn't want to go backward is because before the Detainee Treatment Act passed in 2005, no one had recognized the 5th, 8th, and 14th amendment concepts applying to enemy combatants. So what we are trying to do is start over after Hamdan and incorporate into the military commission model as many protections as we can that also protect America. So going forward, from the Detainee Treatment Act forward, any evidence gathered after the Detainee Treatment Act will have to comply with the 5th, 8th, and 14th amendments requirements that make up the heart and soul of the Detainee Treatment Act. To make it retroactive and exclude statements where that concept was not known, was not part of our legal system regarding enemy combatants, in my opinion, was unwise. So we are going forward, reinforcing the Detainee Treatment Act, and the standard of admission of evidence of reliable and probative meets the standards of justice and totality of the circumstances test, stays in place, covers all statements before and after. Our Judge Advocate Generals, to a person, have said that if you take the Detainee Treatment Act out of the equation, what is left still is acceptable. And the courts will make that decision. I am confident that the standard that we had, the administration had when it came to the admission of evidence, was acceptable, and the judge advocates who have objected to many things did not object to that. So the idea that we made a conscious decision to allow cruel and inhumane treatment to become a player defies what we did in totality. The title 18, War Crimes Act, was rewritten. One of the crimes that we put in title 18 that would constitute a grave breach of the Geneva Conventions, a felony under our own law, is cruel or inhumane treatment: The act of a person who commits or conspires or attempts to commit an act intended to inflict severe or serious physical or mental pain or suffering, other than pain or suffering incidental to lawful sanctions, including serious physical abuse upon another within his custody or control. And we defined those terms. It is a felony in U.S. law to engage in cruel or inhumane treatment, not just torture. It is a felony in U.S. law to mutilate or maim. What we did--intentionally causing serious bodily harm, rape, sexual assault or abuse, taking hostages--what we did is we took what the Geneva Conventions have defined as being a grave breach of the conventions, we put it in title 18 of the War Crimes Act, and made it a felony. So if you are a military member or CIA agent and you run afoul of the title 18 War Crimes Act, you can be prosecuted. When it comes time for the military judge to rule upon the admissibility of evidence in a military commission, the standard that we will be using has been blessed by every Judge Advocate General that we have, those in charge of our military legal system. So I think it is a good standard. I think the fact that we put the DTA 5th, 8th and 14th amendment standard into the statute in a perfective way enhances and emboldens what we are trying to do with the DTA and will make us a better nation. The other areas of concerns: enemy combatant definition. The enemy combatant definition that is changed from the compromise and committee bill allows us to, subject to military commission, try those people who intentionally and knowingly aid terrorism; materially support terrorism. To me, that makes sense. I want to prosecute the person who sells the guns to al-Qaida as much as the people who use the weapons. I want to go after the support network that supports terrorism. To me, that makes perfect sense. I am glad we expanded the definition because those who are assisting terrorists in a knowingly purposeful way should be held accountable for their actions. Under no circumstance can an American citizen be tried in a military commission. The jurisdiction of military commissions does not allow for the trial of American citizens or lawful combatants, and those who say otherwise, quite frankly, have not read the legislation because there is a prohibition to that happening. The hearsay rules that are in the compromise very much mirror the committee bill, but that we are allowing a burden shift, to me, makes sense given the global nature of the war. I can spend a lot of time explaining the differences between the two bills, but I will basically summarize by saying that the purpose of the committee bill has been met by the compromise. If it were not so, I would not vote for it. We are not allowing into evidence coerced statements unless the judge makes the decision they are reliable, probative, and in the totality of circumstances they meet the ends of justice. At the end of the day you are going to have a judge applying a legal standard to a request to admit evidence. The administration, in my opinion, in their first product, was trying to legislate a conviction. In many ways they were trying to set up the rules when it came to the military commission format that would allow evidence to go to the jury never seen by the accused. That would make it very hard to defend yourself. We have changed that. Anything the jury gets to convict, the accused can examine and rebut. To me, that was a huge accomplishment that put the trials back on sound footing within our value system, and legally I think they will pass muster now. So at the end of the day, in my opinion we do not need to try to legislate how the judge should rule. Everybody has their pet peeve about where the administration has failed or succeeded, about how the CIA has conducted its business. I have found an effort to tie the judges' hands to the point that we have no flexibility when it comes to admitting evidence. The judge is in the best place--better than anybody here--to make a decision as to what should come into that trial. What are we asking the judges to do? To use their experience, their knowledge of the law, their sense of right or wrong to determine: Is that statement reliable? Is it probative? Given everything around it, would the interests of justice be met if it came into the trial? That is an acceptable legal standard, not only to every Judge Advocate General who serves today in our military, it should be a standard that every American is proud of because I am proud of it. I bet you dollars to doughnuts when the Supreme Court gets hold of our work product they are going to approve it. Finally, Hamdan is about applying the Geneva Conventions to the war on terror. Everybody I know of in the administration believed that the Geneva Conventions did not apply to these unlawful enemy combatants. I shared that belief. We were wrong. The Supreme Court--whether I agree or not--ruled. After their ruling, we had two things that we had to accomplish to get this country back on track within the rule of law. We had a challenge: to take the CIA interrogation program that existed and will exist and make sure that it was Geneva Conventions compliant. What do the Geneva Conventions require of every country that signs the document? It requires that, domestically, that country will outlaw, within its own domestic law, grave breaches of the treaty. Every country has an affirmative duty to set out within their laws and prosecute their own people for grave breaches of the Geneva Conventions. Title 18 is the War Crimes Act. Under title 18 we have listed nine crimes that would be considered grave breaches of the Geneva Conventions. To the CIA: Your program, whatever it may be in classified form, must comply with the War Crimes Act. And the War Crimes Act runs the gamut from torture to cruel, inhumane treatment, intentional infliction of serious bodily injury, or mental pain. We have taken nine well-defined felonies and told the CIA and every other agency in the country: Whatever you do, if you violate these statutes you will be subject to being prosecuted. I want a CIA program to be classified when it comes to interrogating high-value terrorist targets. I think it would be foolhardy to tell the terrorist community everything that comes your way when you join al- Qaida or some other terrorist organization. But it is important to tell every American, every CIA agent, their family, and the international community what we do will not only be within the Geneva Conventions, it is going to be beyond what the Conventions require, and I think we have accomplished that. There are six specified events in article 129 and article 130 of the Geneva Conventions that constitute grave breaches. We have adopted all six, and we have added to that list. Whatever the CIA is doing and wherever they do it, whatever the Department of Defense is doing and wherever they do it, they now have the notice and the clarity that they did not have before to do their job within the law. This idea that we have rewritten the statute and given immunity to people who have violated the statute is absurd. There is nothing in the compromise or the committee bill that would give immunity or amnesty to someone who violated the felony provisions. But what we did do, that I am proud of, is that we took a 1997 War Crimes Act that was so ill- defined that no one understood it and gave clarity and purpose to it so those whom we are asking to defend us from the most vicious people in the world will have a chance to know the law. Abu Ghraib was about policies that cut legal corners, that migrated from one side of the Government to the other, that got everybody involved confused as to what you could and could not do. It was a mixture of individual deviance and bad policy, poorly trained people, not enough folks to do the job, and not trained well enough to understand what the job was. It was a mess. For 2 years we have been trying--and I have been as helpful as I know how to be--to create some sense of balance to bring order out of chaos, and we are on the verge of doing it. This is a product, not only that I support, that I had but one that I am proud of. Every military lawyer who sits on the top of our military legal system has had input on every issue. They have had the guts to go to the House and Senate and say some things about the President's proposal are flat wrong. That took a lot of guts, and I am here to tell you the final product took their input and what their concerns were and has been changed. But if you want a CIA program that is not classified, you lost. I want the program to be classified. But I want it to run within the obligations of the Geneva Conventions, and we have accomplished that. Finally, what did we do in the compromise that we didn't do in the committee bill? We said that every obligation under the Geneva Conventions that our country has, outside of the War Crimes Act, will be fulfilled by our President. Under our constitutional democracy, it is the obligation of the executive branch to implement and interpret treaties. This whole debate, what I have been working on for 2 weeks and getting beat up on in every talk radio show in the country, was about how can you comply with the Geneva Conventions in a way that will be seen by the world as not getting out of the Conventions. The proposal for the Congress to redefine the treaty terms, in my opinion, would have created a precedent for every other country, in a war that they are in the middle of, to change the treaty in the middle of a war. The conventions have been closed for years. It would have been wrong, ill-advised for the Congress to sit down with the President and rewrite the treaty obligations for domestic purposes because clearly then we would have been changing the treaty terms without notifying the other parties. What we did to avoid that is we, Congress, defined nine crimes that would constitute grave breaches, honoring our commitment under the Geneva Conventions, to outlaw grave breaches, felonies. We have done our job, and we turned to the Executive and said in this legislation: It is your job, Mr. President, consistent with our constitutional democracy, to implement and fulfill the obligations of the treaty outside of title 18. And when you make a decision, publish what you have decided. And any decision you make cannot take power away from the courts or the Congress that we have in the same arena. Those people who want to overturn the election, who do not like President Bush, are upset that we recognized he has a role to play. Let me tell you, he does have a role to play. Any President has the same role that we are going to give President Bush--to implement a treaty, not change a treaty. So I think we have done a very good job of putting into law our obligations under the Geneva Conventions defining, constitutionally, who has what responsibility so that no reasonable person could say the United States has abandoned its longstanding obligations to the Geneva Conventions because we have not. And that is what we have been sweating over for weeks. No reasonable person can say that this compromise condones torture, cruel, or inhumane treatment because we make it a felony. What we have done is given the military judge the tools he or she will need to render justice. And I have tried to embolden and strengthen the Detainee Treatment Act in a way that I think makes sense. The military court-martial system will be the model. The military commission will deviate. And the authority given to the Secretary is the same authority given to the President: to make differences between the district courts and the military justice system as a whole. It is compliant with article 36 of the Uniform Code of Military Justice. This compromise is compliant with Hamdan. It is compliant with the values we are fighting for. And it has the flexibility we need to fight an enemy that knows no bounds. The work product is the result of give and take, is the result of being more than one branch of Government, is the result of having to deal with a court decision that was new and novel. I can say from my point of view that not only will I vote for the compromise, I am very proud of it. I yield the floor.

Mr. GRAHAM. Mr. President, I appreciate that, and I am sorry to interrupt. But I went back to the Hamdi decision that referenced the exchange we had with the chairman in reference to the point the Senator just made. Justice O'Connor said: Hamdi has received no process. An interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker. When you turn to the next page, she says: There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. She is referring to Army regulation 190-8. And my question to Senator Cornyn is, do you agree that Justice O'Connor was telling the Department of Defense that if you will model a tribunal on Army regulation 190-8, you will have met your obligation to have a competent tribunal under the Geneva Conventions to make an enemy combatant status determination?

Mr. GRAHAM. Mr. Chairman, I guess one could make that argument. I have been assuming something from the beginning--that the Court's decision in Rasul and Hamdi is a statement by the Court that because Guantanamo Bay falls within the jurisdiction of the United States, it is section 2241 that we are dealing with. It is a statutory right of habeas that has been granted to enemy combatants. And if there is a constitutional right of habeas corpus given to enemy combatants, that is a totally different endeavor, and it would change in many ways what I have said. I do not know what the Court will decide, but if the Court does say in the next round of legal appeals there is a constitutional right to habeas corpus by those detained at Guantanamo Bay, then the Senator is absolutely right. We would have to make a different legal determination. We would have to make a different legal analysis. And if the Court does that, I will sit down with the Senator and we will figure out how to work through that. I am just being as honest with the Senator as I know how to be. I think this is a statutory problem, not a constitutional problem.

Mr. GRAHAM. Mr. President, this debate is a strength, not a weakness, in our country. In my opinion, the fundamental question for the Senate to answer when it comes to determining enemy combatant status is, Who should make that determination? Should that be a military decision or should it be a judicial decision? I am firmly in the camp that when it comes to determining who an enemy of the United States is, one who has taken up arms and who presents a threat to our Nation, that is not something judges are trained to do, nor should they be doing. That is something our military should do. For as long as I have been a military lawyer, Geneva Conventions article 4, where it talks about a competent tribunal to decide whether a person is a civilian--lawful, unlawful, combatant--that competent tribunal has been seen in terms of military people making those decisions. I have a tremendous respect for our courts. We will follow whatever they tell Congress to do because we are a rule-of-law nation, but this Congress has a role to play. Unlike my chairman, Senator Specter, I believe the question before the Congress is not whether an enemy combatant noncitizen alien has a constitutional right to habeas corpus because I don't believe that is what the court has said. The issue for the Congress is whether habeas corpus rights should be given to an enemy combatant noncitizen under section 2241 and whether the military should make the determination of who an enemy combatant is versus judiciary. What happens now is that when someone is brought to Guantanamo Bay, very shortly after they arrive, the military will create a combat status review tribunal that is supposed to be compliant with article 4 of the Geneva Conventions, a competent tribunal. When we look at the history of competent tribunals, normally they are one person. We will have three people. Of the three people will be a military intelligence officer--and it could be other officers within our military who have expertise in determining what the battlefield situation is and who is involved with the enemy forces and who is not. That tribunal has an evidentiary standard to meet. The tribunal must make a finding by a preponderance of the evidence that the person before them indeed fits within the definition ``enemy combatant.'' There is a rebuttal of presumption in favor of the Government's evidence. Our Federal courts will have the opportunity shortly to determine whether the combat status review tribunal is constitutional due process. The reason I say that is because under the Detainee Treatment Act we passed last year, every detainee at Guantanamo Bay will have their day in Federal court. After the military renders their decision that they are an enemy combatant, as a matter of right each person can go to the DC Circuit Court of Appeals, and the Federal DC Circuit Court of Appeals will look at that case with two issues before them: Does this CSRT process, the annual review board, does it constitutionally pass muster as being adequate due process not only under the Geneva Conventions but under our Constitution to the extent it applies? Second, was the decision rendered by that board finding the person enemy combatant by the preponderance of the evidence--the standards and procedures involved, do they pass muster? And in the individual case, did they get it right? That is the structure for them to decide the issue set up in a constitutionally sound manner. The reason I oppose my chairman, for whom I have great respect, is because the habeas process is a doctrine that is normally associated with criminal law, and we are in a war. The Japanese and German prisoners we interred in World War II never had access to our Federal courts to bring lawsuits against the people who confined them--our own troops--for a reason: it was a right not given in international law to an enemy prisoner, and it was not a right we gave to any prisoner we have held in the history of our country consciously as Congress. The problem in this case is the Government argued that Guantanamo Bay was outside the jurisdiction of the United States. Why is it important? It is clear that our habeas statutes do not apply overseas. The Government lost that argument. Chairman Specter is absolutely right. The court said that for legal purposes, Guantanamo Bay falls within the confines of the United States. Section 2241, the habeas statute, unless Congress says otherwise, will apply to this environment. Now it is time for Congress to decide, in its wisdom, whether the Federal courts should be determining who an enemy combatant is through a habeas action. Do we want that to reside in the military, where it has been for our whole history, and allow Federal courts to review the military decision, not substitute their judgment for the military? It is not about who loves America and who is un-American. Mr. Sullivan came to my office yesterday. He is a lawyer representing detainees at Guantanamo Bay. He is a great American. He gave me four or five stories about how his client appeared before the Combat Status Review Tribunal, and he had nothing but bad things to say about the way his client was treated and the procedures in place. Once a week, I get a call from somebody from South Carolina who says their family member was screwed in court. And then what I try to do is to make sure we listen to them respectfully but understand that there are a lot of complaints about any system. Mr. Sullivan's complaints got me thinking, and I think there is a way to provide some remedies that do not exist now without substituting judges for military officers when it comes to wartime decisions. I will privately talk to him about that. I urge this Senate to think in broad terms. Do we really want to allow the Federal judiciary to have trials over every decision about who an enemy combatant is or is not, taking that away from the military? Do we really want the people who have been housed by our military to bring every known lawsuit to man against the people fighting the war and protecting us? I compliment Senator Specter because in this new version they take the conditions of confinement lawsuits off the table. There are 400- something cases that have been filed arising from Guantanamo Bay detention. There is a $300 million lawsuit against Secretary Rumsfeld. There are allegations that people do not get enough exercise. It goes on and on and on. Never in the history of warfare has the host country allowed an enemy prisoner to bring a court case against those people who are fighting the enemy on behalf of the host country. That needs to stop. I am urging this Senate to dismiss under 2241 the right of habeas actions by enemy prisoners so that judges will not take the role of the military. Adopt anew what we did last year, allowing the military to use a process that I believe is Geneva Conventions compliant, and then some, and have as a backstop judicial review, where the DC Circuit Court of Appeals can review the military's decision. That way, we will have due process unknown to any other war. That will keep the roles of the responsible parties intact. The role of the military in a time of war, I earnestly believe, is to control the battlefield and to designate who is in bounds and out of bounds when it comes to the battlefield. The role of the courts in a time of war is to pass muster and judgment over the processes we create--not substituting their judgment for the military but passing judgment over the infrastructure the military uses to make these decisions. The problem with this war--there is no capital to conquer, no navy to sink, no army to defeat. The people we are fighting owe an allegiance to an idea, not to a piece of property. They have no home to defend. They have an idea they would like to sell, and they are selling that idea, whether you want to buy it or not. They are selling it in a very brutal way. They are trying to get good and decent people accepting their view of the world because they are terrified of the way the enemy behaves. This is a war unlike other wars in this regard. People do not wear uniforms, but the ideas the terrorists represent are not unknown to mankind. Hitler wore a uniform. He had the same view of mankind as these people do: there are some people not worth living because they are different. We have to adjust, but we do not need to change who we are. I am not asking this Senate to change who America is because we are fighting barbarians. Quite honestly, we will never win this war if we move in their direction. Our goal is to get the world to move in our direction by practicing what we preach. I believe the way to balance the interests of our need to protect ourselves and to adhere to the rule of law is to apply the law of armed conflict, not criminal law. The act of 9/11, in my opinion, was an act of war, not a crime. And the problem with this country is the people we are fighting were at war with us a long time before we knew we were at war with them. Now we are at war. This administration, on occasion, in my opinion, has tried to cut the corners of the law of armed conflict. I embrace the law of conflict. I want to fully apply the actions of the United States. I embrace the Geneva Conventions. I want to apply it fully to the war we are fighting even though our enemy will not. But I am insistent, with my vote and with my time in this Senate, that we fight the war and not criminalize the war. No enemy prisoner should have access to Federal courts--a noncitizen, enemy combatant terrorist--to bring a lawsuit against those fighting on our behalf. No judge should have the ability to make a decision that has been historically reserved to the military. That does not make us safer. There is due process in place for the enemy combatants at Guantanamo Bay, Afghanistan, and Iraq that I believe is Geneva Conventions compliant. There is judicial review consistent with the military being the lead agency. I urge this Senate to adopt that and to reject this amendment. I yield the floor.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I rise today to correct the public record with regard to a matter raised by the U.S. Supreme Court's decision in Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006). In part II of its opinion, the majority in Hamdan addressed whether the Detainee Treatment Act barred Hamdan's lawsuit from proceeding in its then-present form. As the court noted, the DTA provides that ``no court, justice, or judge shall have jurisdiction to hear or consider'' claims filed by Guantanamo detainees, except under the review standards created by that act. In the course of drafting the DTA conference language regarding jurisdiction, Senator Kyl, myself, and several others we consulted, specifically relied on the Bruner line of cases for guidance. In that line of cases, we had taken particular note of Justice Stevens's opinion in Landgraf, where, in discussing the Bruner line, he wrote that the Court had a consistent practice of ordering an action dismissed when the jurisdictional statute under which that action had been filed was subsequently repealed. Since that was precisely what we were doing in the DTA, reversing the Rasul finding of jurisdiction through the habeas statute, we were very comfortable with how our language addressed the jurisdictional change. Likewise, the Bruner/Landgraf line of cases informed the enactment language regarding the substantive law changes we were making. Because of Justice Stevens's explanation in Landgraf, we felt we had to make those provisions specifically apply to pending cases. However, for everything else, including the requirements for the executive branch to do certain things within certain time periods, having a single enactment statement saying everything applied retroactively did not make sense. So, with that and other concerns, we ended up with what emerged from the conference process between passage of the amendment in November and adoption of the conference product in December. It was complicated and merged a number of concepts. You see, as the author of that part of the Detainee Treatment Act, it was never my intent to carve out pending cases from the effect of that act. As I have detailed above, we knew the governing law and expected the courts to apply it. And I never hid this intent or understanding. My statements regarding this intent were consistent from the beginning of the debate on November amendment until final passage of the conference report on December 21. This is why I issued a joint statement with Senator Levin in early January of this year which stated, ``[t]he intent of the language contained within the Graham- Levin-Kyl amendment is that Courts will decide in accord with their own rules, procedures and precedents whether to proceed in pending cases.'' In reviewing the record, Justice Scalia and the other dissenters recognized this consistency. Justice Scalia stated that, ``[s]ome of the statements of Senator Graham, a sponsor of the bill, only make sense on the assumption that pending cases are covered.'' Thus, they correctly concluded that the jurisdictional removal language included all pending cases. Indeed, when the final version of the DTA passed the Senate, I and some of the cosponsors of my November amendment included a colloquy in the Record in which we made clear that we were perfectly aware of the Supreme Court's previous holdings governing jurisdiction-removing statutes and that we had not chosen the language of the amendment by accident. We had initially intended to explain our provisions of the DTA on the floor, but with time growing short, and rather than forcing our colleagues to listen as we droned on, we dropped the statement into the Record and everyone went home for the Christmas break. The Hamdan majority addressed this statement in footnote 10 of its opinion. First, the Court noted that on November 15, ``Senator Levin urged adoption of an alternative amendment [the final version of my amendment] that `would apply only to new habeas cases filed after the date of enactment.' '' The Court then dismissed my own statement of views in the following passage: While statements attributed to the final bill's two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levin's contention that the final version of the Act preserved jurisdiction over pending habeas cases, see 151 Cong. Rec. S14263-S14264 (Dec. 21, 2005), those statements appear to have been inserted into the Congressional Record after the Senate debate. See Reply Brief for Petitioner 5, n. 6; see also 151 Cong. Rec. S14260 (statement of Sen. Kyl) (``I would like to say a few words about the now-completed National Defense Authorization Act for fiscal year 2006'' (emphasis added)). All statements made during the debate itself support Senator Levin's understanding that the final text of the DTA would not render subsection (e)(1) applicable to pending cases. See, e.g., id., at S14245, S14252-S14253, S14274-S14275 (Dec. 21, 2005). There are three misstatements of fact in footnote 10 of Hamdan that I would like to publicly correct. First, the colloquy that Senator Kyl and I submitted for the Record was not submitted after the Senate's consideration of the bill. It was submitted well before the final vote on the conference report, and was necessary due to the substantial changes we made between the adoption on the amendment on November 15 and the adoption of the conference report on December 21. Second, I have had a member of my staff view the tapes of the Senate's deliberations on November 15 that were prepared by the Senate Recording Studio. These tapes confirm that the statement from Senator Levin that the Supreme Court quoted from that day was not made live, but instead appears to have been submitted for the Record. And third, my staff has viewed the tapes of the Senate's deliberations on December 21. These tapes confirm that the statements to which the Supreme Court cites from that day, statements by Senators Leahy, Durbin, and Feingold, also were not spoken live on the Senate floor but were instead submitted for the Record. As I will discuss later, it generally doesn't matter to me if a statement is live or not, but it does bear noting the distinction given the Court's focus on it in this case. The Supreme Court appears to have been misled about the nature of the legislative statements regarding the Detainee Treatment Act. The court dismissed my and Senator Kyl's statements on the basis that they were submitted for the Record. Instead, it relied on statements where it thought Senator Levin had publicly ``urged'' other members to accept his view, and on statements that it believed had been spoken live ``during the debate itself' on December 21. In reality, there was no ``debate itself' on the Detainee Treatment Act on December 21. The final Defense authorization conference report was adopted by a voice vote at 10 p.m. Of the 35 pages of the Congressional Record accompanying the final passage of that Act, virtually none of it was spoken live on the Senate floor. Nothing regarding the DTA was said live on December 21. In other words, the statements that Senator Kyl and I submitted for the Record and that the Hamdan majority dismissed are identical in nature to all of the statements from November 15 and December 21 that the Hamdan majority quoted and cited in support of its construction of the DTA. I should emphasize that although the Supreme Court was misled, I do not believe that it was misled by any of my colleagues. I believe that Senators Levin, Leahy, Durbin, and Feingold acted entirely appropriately by submitting statements for the Record regarding their interpretation of the DTA. As I mentioned, the Senate considered the final Defense bill that contained the DTA late in the evening four days before Christmas. Although the Senators who submitted statements for the Record had every right to delight their colleagues with 6 hours of speeches and debate at that hour, I am certain that every member of the Senate appreciated the fact that these statements were submitted for the Record instead. Where does the Court's mistake spring from then? The Supreme Court's mistake about the legislative history of the DTA appears to have been created by briefs filed by Mr. Neal Katyal, the counsel of record for Mr. Hamdan in the Supreme Court. Much of the Hamdan majority's analysis of the DTA and its legislative history appears to have been adopted verbatim from these briefs. Mr. Katyal's brief, for example, wrongly asserts that the colloquy between Senator Kyl and me was ``inserted into the Record after the legislation passed.'' Although statements for the Record must be submitted on the same day that they are to appear in the daily edition of the Record, no public record is kept of when exactly a particular statement was submitted. Mr. Katyal could not possibly have known whether my colloquy with Senator Kyl was submitted before or after final passage of the bill, unless he had asked me or my staff, which he did not do. Had he done so, we would have happily informed him that our statement was submitted hours before final passage. Yet he asserted to the Supreme Court that it was submitted ``after the legislation passed,'' a misstatement that the Supreme Court apparently believed and that it repeated in its majority opinion. Mr. Katyal's brief also asserts that my colloquy with Senator Kyl was ``entirely post hoc,'' and that Senator Kyl and I ``waited until the ink was dry'' to submit our views. However, his brief's extensive citations to those December 21 statements that favored petitioner Hamdan are not accompanied by similar bold disclaimers. Indeed, the very statements of Senators Leahy, Durbin, and Feingold that the Supreme Court believed had been made ``during the debate itself' appear to have been brought to the court's attention by Mr. Katyal's brief. That passage of the brief makes no mention of the fact that these statements were not spoken live on the Senate floor. The brief also quotes at length from the same statement by Senator Levin on November 15 from which the Supreme Court later quoted in its opinion. Not only does the brief fail to warn the reader that this statement was not spoken live, the brief even asserts that ``[e]vidence of reliance on Senator Levin's statement was immediate,'' and it cites to a statement by Senator Reid that refers to Senator Levin's views. I can see how a reasonable person would understand this passage to mean that Senator Levin's and Senator Reid's statements were spoken live on the Senate floor. The brief conjures up a scene of one Senator listening to another Senator speak and then ``immediately'' rising to express his agreement. Yet that scene never took place. Neither Senator Levin's nor Senator Reid's remarks were made live on the Senate floor. In the usual case, I do not think that an attorney would have a duty to tell a court whether the Senate floor statements that he is citing are live or not. Indeed, most attorneys would have no way of knowing whether a particular statement is live. Under Senate rules, submitted statements that pertain to pending Senate business are presumed to be live statements and are automatically included in the Record among live debate. In my opinion, this is critical to the effective and efficient functioning of the Chamber. I am confident that my colleagues would agree with me. Here, however, Mr. Katyal made a point of seeking to discredit statements in the Congressional Record on the basis that they had not been spoken live. Given that he stressed the introduction of some statements, I believe it was incumbent on him to inform the Court that the statements on which he relied also were not spoken live. I should again emphasize that I do not criticize any of my colleagues in the Senate. Senators Levin, Leahy, Durbin, and Feingold's actions were entirely honorable and aboveboard. Indeed, Senators Leahy, Durbin, and Feingold, as well as others who opposed the DTA had every right to have their opinions, thoughts, and intent recorded, both in November and in December. In closing, I would also like to express my concern about the soundness of the distinction that the Hamdan majority drew between live and submitted statements. Although the reality of Senate floor debate is not quite as unflattering as what Justice Scalia suggests in his dissent, it is true that live speeches made by Senators are not always heard by other Members. Senate floor debate is only one of the many sources of information on which Senators rely when deciding how to cast their votes. Other than when Senators express agreement with one another through a colloquy or by expressly referring to each other's views, Senate floor statements should not be understood to represent the understandings and intentions of anyone other than the Member making the statement. Nor should the courts assume that Senators are unaware of court precedent and rules of construction. I hope that this statement will prevent further mischaracterization of the legislative record of the Detainee Treatment Act. Senators Levin, Leahy, Durbin, and Feingold's December comments on the act are all entitled to consideration, but no more so than mine or Senator Kyl's. The Supreme Court was misled in Hamdan, and it appears to have based its decision, at least in part, on a simple mistake of fact. That is a result that all those who respect the democratic process and the rule of law should regret.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I thank the Senator from California, Mrs. Boxer, for bringing this amendment to the floor at a very important time in our relationship with Iraq. In relation to Iraq and as to what people in Iraq in political office have said, you can't judge everyone in the country by the statement of one political leader, but the fact that a political leader said the things that Senator Boxer has just described is unnerving. I would like the Iraqi people to know that when it comes to disciplining American service men and women serving overseas, we are a nation committed to following the rule of law and that we have status of forces agreements with Germany, Japan, and other countries where our troops have been stationed for decades. Under those status of forces agreements, we have an agreement with a host country that if a military man or woman commits a crime, the United States will retain jurisdiction to prosecute that person who is a military member under the Uniform Code of Military Justice. I served in Germany for 4\1/2\ years and prosecuted many cases where American service men and women committed crimes against German nationals and civilians in general, and I can assure you that the American military takes very seriously misconduct by its own. This idea that Prime Minister Maliki suggests that immunity has been given to international forces is, quite frankly, wrong. There is no immunity for an American service man or woman from prosecution for crimes committed in Iraq. But we have an understanding and an agreement at this point in time that when the prosecutions are had, we will do them. We will be the ones responsible for disciplining our troops, just as we do in almost every other country throughout the world. The idea that the U.S. military will retain jurisdiction over crimes committed by service men and women in foreign lands is nothing new. It is the normal course of business. Given some of the rhetoric coming out of Iraq, it is very important that we need to reaffirm that we will be there to help the Iraqi people achieve democracy, if that is what they want, and to gain their freedom. We have lost 2,500 lives and have been spent $400 billion. So America is very serious about helping the Iraqi people. But we need to be serious--the Senate, the House, and the administration--we need to understand that as part of our commitment to the Iraqi people, there is no need or requirement for us to turn over jurisdiction regarding our soldiers' conduct to the legal system in Iraq. That would be a mistake. We don't do it in any other place, nor should we do it in Iraq. I can assure you that when people have engaged in misconduct in Iraq and we have found out about it, the soldier, airman, sailor, marine, or whoever is involved is given a trial under the Uniform Code of Military Justice, they are provided a vigorous defense, and the trial is something I think we should be proud of in terms of the legal procedures in the military. But when found guilty, they are severely punished. There are a lot of high-profile cases now, alleging murder and rape, against U.S. service men and women, and they will be prosecuted to the fullest extent of the law because we as a nation believe very deeply in the rule of law. Those who serve in the military believe very much in duty, honor, and country. When a service member commits a crime while wearing the uniform, it is a stain on all those who wear the uniform. That is why the military comes down so hard on misconduct by our own, because you cannot win a war without good order and discipline. I can assure the Iraqi people and every other nation where we have troops stationed that when our troops misbehave and commit crimes, which happens in any society, we take the obligation to punish those people seriously, and at the same time making sure they have a full and fair trial. I join the Senator from California. I urge every Member of this body to get on record now before these treaties have to be renegotiated and get ahead of this rhetoric to let everyone know that we are going to be in Iraq trying to help the cause of freedom, but we are not going to turn our soldiers and military personnel over to a legal system that is, quite frankly, not very mature yet. We have never done it in any other country. There is no need do it. We can with a great deal of assurance tell the Iraqi people-- politicians included--that we have a great track record of having people stationed all over the world for decades and that track record is that when our people engage in misconduct found to have been proven in a court law, they are severely punished. I can assure every Iraqi citizen that if something goes wrong on our watch by our military, we will handle it. We have a great track record of handling it. But under no circumstances, in my opinion, should we ever go down the road of changing the rules that now exist. It would be unwise for this Nation to abandon what has worked for over 50 years; that is, retaining jurisdiction over misconduct by military members serving abroad. We have a system that works and, quite frankly, I do not want to change that because the men and women in Iraq have enough to worry about. They do not need to be worried about some court in some province that is not really well constituted coming after one of them. I yield the floor and urge an absolute 100-to-0 vote.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I take this opportunity to comment on S. 3711, the Gulf of Mexico energy bill. I believe this legislation strikes an appropriate balance between our need for new sources of oil and natural gas, with the concerns of the coastal States. I do support passage of S. 3711, but I do not support the bill passed by the House of Representatives earlier this year. The careful compromise that is the Senate bill cannot be found in the version passed by the House. I will not support any legislation that opens South Carolina's coast to drilling for oil. I am supporting the Senate bill, but I wish that it went further to address our energy dependency issues. According to the International Atomic Energy Agency, IAEA, the world's demand for energy is expected to double in the coming years. This should be a call to intensify our efforts to become energy independent as soon as possible. We must continue to fund research into alternative sources of energy such as hydrogen. Where suitable we need to use solar power and potentially wind. We must expand production of ethanol beyond corn so that all regions of the country can produce ethanol efficiently. As a cochair of the Senate Manufacturing Caucus, I voted for this legislation to increase our supply of natural gas for manufacturers. According to a study by the Congressional Research Service, 24 percent of our natural gas is consumed to generate electricity. While it is very easy to generate electricity from gas, it is a very inefficient use of the resource. Instead of electricity generation, natural gas should be utilized for industrial and home heating use. For electricity generation, we need to continue encourage a renaissance in nuclear power. This involves reducing the regulatory redtape involved in constructing new plants, opening Yucca Mountain, and proceeding with spent nuclear fuel recycling. Nuclear power is an efficient zero-emission source of energy that can address both our energy and climate concerns. I applaud the ongoing work of Senator Domenici and others to help increase the supply of critical energy resources. This bill is a small step in the right direction, and I look forward to working to further this effort beyond what we are accomplishing today. I also encourage my colleagues in the House that if they are truly serious about passing a bill to increase the supply of natural gas and oil this year, S. 3711 needs to be passed by the House as soon as possible.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I am very pleased to support the nomination of Jerome Holmes to be a judge on the Tenth Circuit Court of Appeals. Due to a scheduling conflict, I am unable to be here to vote for Mr. Holmes, though I would have cast my vote to confirm him. In any event, with his stellar qualifications, I doubt my vote will be needed. President Bush made a great choice in nominating Mr. Holmes, and I look forward to great things from him during his tenure on the Tenth Circuit.

Mr. GRAHAM

Mr. GRAHAM. Thank you, Mr. President. I wish to take a few moments to add my voice to the Senate debate in terms of why I will vote for the Voting Rights Act reauthorization. No. 1, I am a member of the Judiciary Committee, and I wish to congratulate our chairman, Senator Specter, and our ranking member, Senator Leahy, for getting the bill out of committee. It was an 18-to-0 vote. I have enjoyed that committee in many ways, and one of the highlights of my time on that committee is getting this piece of legislation to the floor for a vote. I anticipate an overwhelming vote for the Voting Rights Acts. There are so many ways to say why, and so many approaches to explain the continued need. But the best I can say, in terms of my voice being added to the debate, is that I recognize it is just a voice, that I am in the Senate--I just turned 51 years old, a child of the South. I grew up in the 1950s and 1960s, and I went to segregated schools until, I think, the fifth or sixth grade. My life is better because of the civil rights movement. It has enriched the country. I have been able to interact with people in ways that would have been impossible if segregation had stood and, as Senator Obama indicated, his career in the Senate is possible. I would argue that most Americans' lives are better because in America you can interact in a meaningful way now. And one of the interactions is to be able to vote. But it is just a voice I add. To get here, literally, to get the Voting Rights Act passed back in the 1960s, people died. They shed their blood, their sweat. They put their hopes and dreams for their children on the line. They were willing to die for their insistence that they play a meaningful role in American society. And the most meaningful way you can participate is to be able to vote without fear. Dr. King is a fascinating historical figure now. He was a fascinating man while he lived. I have been in the military for quite a while. I have been around a lot of brave people--pilots who take off and fly in harm's way. I sort of have an affinity for military history. I always admired the people who would go up the hill in the face of overwhelming force or stand with their comrades when it looked as though all hope was lost because that was the right thing to do. They were willing to sacrifice their life not only for their country but for their fellow service members, the people in their unit. How hard that must have been. Some people rise to the occasion and some don't. Those who rise to the occasion are called heroes, rightly so. Those who fail to rise to the occasion are called human beings. All human beings, me included, should celebrate the heroes. The thing that I admire most about Dr. King and his associates is that it is one thing to put your own life at risk. It is another thing to put your family at risk. I would imagine, never having met Dr. King, that one of his biggest fears was not about his personal safety but about what might happen to his family. To me that is the ultimate act of bravery, to know that if you do nothing, your family is going to be locked into a system where life is very meaningless. And to do something so heroic and so challenging that you put your family at risk had to be a very hard decision. So as we reauthorize the Voting Rights Act, we need to remember, all of us who vote, that it is not that big a deal. There is no one in the Senate. Hardly anyone is listening. We have some visitors here in the Capitol. It is going to pass pretty quickly. Everybody knows the outcome. In the 1960s, people did not know the outcome. I argue that the fact we reauthorized this without a whole lot of discussion and rancor is the best testament to its success. All the fears and all the playing on people's prejudices that would come from integration, if it came about, or allowing everyone to vote, if it came about, they were just that--baseless fears. As you look back from 2006 over the history of the Voting Rights Act, there is nothing to fear. Allowing Americans to fully participate in a democracy has been a wonderful thing. Allowing people to go to the movie they went to go to and go to the restaurant they want to eat at and play on the same sports teams as every other person in their neighborhood, regardless of race, creed, or color, is a wonderful thing. At the time it was a frightful thing. That says nothing about this generation being good and the last generation being evil. It speaks to the weakness of humanity. Within all of us there is a fear that can be tapped into. We have to guard against that. We have to be on constant guard not to let the issues of our day play on our fears. I argue that one of those issues we are dealing with today that is playing on the fears of the past and the weaknesses of humanity is the immigration issue. I hope as we move forward on the immigration issue, we can understand that obeying the law is an essential part of America, and people need to be punished when they break it. But America's strength has been absorbing people from all over the world, from different backgrounds, races, and creeds, and allowing them to share in the American dream. We should do it in an orderly way, not a chaotic way. To the issue at hand, the Voting Rights Act will be extended. I believe it is for 25 years. Some of the data in the act is based on 1968, 1972 turnout models. The act does not recognize the progress particularly in my region of the country. I think it should have, but it didn't. So we will just move on. South Carolina has made great strides forward in terms of African American voting participation and minority African American representation at all levels of State government and local government. My State is better for that. I am proud of the progress that has been made. To those who made it happen, those who risked their blood, sweat and tears, I owe you a debt, as everyone of my generation does. When I cast my vote today, it will be in your honor and your memory. I hope 25 years from now it can be said that there will be no need for the Voting Rights Act because things have changed for the better. I can't read the future or predict what the world will be like 25 years from now or what America will be like. But if we keep making the progress we have in the last 25 years, it can happen. It is incumbent upon each Member of this body--regardless of political differences, party affiliation, or personal background--to try to bring out the best in our country no matter how hard the issue might be, no matter how emotional it might be, and no matter how much people play on our fears. Just as those who came before us rejected the desire to play on fears and prejudices and risked their personal safety, I hope this generation of political leaders that I am now a part of will live up to the ideals demonstrated by Americans in the past who were brave, who risked it all for the common good. I will close with this thought: As Senator Obama said, if we can embrace the spirit that led to the Voting Rights Act--a sense of fair play, fair treatment--and apply it to other areas and other issues facing our Nation, we will be much stronger. It is with that sense of purpose and hope that I will vote to reauthorize the Voting Rights Act. To my fellow South Carolinians, you have come a long way. You have much to be proud of. But we, like every other part of this country, still have a long way to go. I yield the floor.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, whether it would ever be a crime to write on the flag or wear it at a concert, who knows? This whole debate is about restoring the power of elected officials to be able to manage such events. The Supreme Court, in a 5-to-4 decision, took the power away from everyone who is elected to have any say about the flag. This happened in 1989. We have lived here free, open, safe, and secure of being able to regulate conduct toward disrespecting the flag for most of our life. Only since 1989 and a 5-to-4 decision have we had this problem. I stand here wanting every elected official to have the constitutional power that we previously possessed before the 5-to-4 decision. And we will decide among ourselves what a good statute might be or may not be. Everybody can go through that process and be answerable to the people. I do not believe it is a burden to place on our citizens at large not to disrespect the flag. It is a burden we can bear as a people. If you do not like me, there are a million ways you can show your displeasure with my time in the Senate. But the fact is, I am an elected representative. All I am asking citizens as a whole is that we have one thing in common--that we are able to talk with each other and debate issues without destroying the flag. To me, that is a burden that we can bear. Freedom without responsibility is chaos. So it doesn't bother me one bit to turn to my worst enemy and say: This one thing is out of bounds. Have your say, have your fun, do what you are going to do, speak as loudly as you want to speak, but this is one thing I ask of you: please don't destroy the flag. To the few citizens who feel a need to do that, it doesn't bother me one bit for them to be told no. That is what is wrong with our country today. Nobody is afraid to tell anybody else no. I am not afraid at all; to the few who want to destroy the flag, I am gladly willing to tell you no. That doesn't make me any less free or you any less free.

Mr. GRAHAM

Mr. GRAHAM. I will be very brief. One, I thank the chairman and ranking member for their willingness to help Senator Chambliss and Senator Clinton and myself with a package of reforms that would be very beneficial to the Guard and Reserves regarding Reserve retirement. Right now, the current system will not allow you to retire until you are 60. You can serve your 20 years, 30 years, but you have to wait until you are 60 to get your retirement. We are trying to incentivize those Guard and Reserves to take part in active-duty operations, and if you are called up to active duty involuntarily, for every 90 days a member spends on active duty, from September 11 forward, you will get a day-for-day credit in terms of retirement. If you serve a whole year on active duty, voluntarily or involuntarily, you could retire at 59. We have had this scored. It is minimum cost. But I can assure you it will go a long way in the Guard and Reserve community as a much needed reform. It will be well received by our troops. It will be good for them and their families. Quite honestly, the level of commitment, the level of Active Duty service is on par with World War II among the Guard and Reserves, and it is the least we can do. This will certainly benefit our guardsmen and reservists and their families. I appreciate the chairman and ranking member putting it in the managers' package. I have enjoyed working with Senators Chambliss and Clinton on this issue. The reduced retirement provision was from Senator Chambliss. It was his amendment. And we used his amendment also to improve health care for the Guard and Reserves. What we have done--there is a three-tiered system. For every 90 days you are called to active duty, you get a year of TRICARE at a 28- percent premium share rate, which is the same as for Federal employees. Everyone who works in our offices as Federal employees pays 28 percent of the cost of their Federal health care. The only group in the Federal Government not to have Federal health care were the Guard and Reserves. We fixed that last year. And we are going to have a change in the allocation. Tier 2: If you are an unemployed or an uninsured guardsman or reservist, we are going to have a 50-50 cost share. If you are in the private sector with health care, and you want to come into TRICARE, to have continuity of health care, not bouncing back and forth, we are going to have a 75-25 share. So if you want to get out of your private- sector health care and come into TRICARE, you will have to pay 75 percent. That will be down from 85 percent. We put a cap on premium growth rates. The entire package, from allowing people to retire early if they serve on active duty, voluntarily or involuntarily, is a great idea. Balancing out the premiums to be paid will go a long way to make our Guard and Reserve family members and Active Duty and military members more appreciated. And it will certainly help them with their budget problems, because we all know how costly health care is. I have introduced a separate stand-alone bill that would allow every guardsman and reservist who is eligible for TRICARE to participate in premium conversions. It would allow them to have their TRICARE premiums on a pretax basis, like every other Federal employee. That is a stand- alone bill. We will do it later. I thank Senator Chambliss for coming up with a package that would allow military members and the Guard and Reserves to get credit for their active service in terms of retiring below age 60. Senator Clinton and I have worked for several years on TRICARE benefits for guardsmen and reservists. I think we have improved that benefit in a very reasonable way. I put that on the record and hope every Member of the Senate will appreciate what we have done because our guardsmen and reservists have served above and beyond the call of duty. Mr. President, I now yield to Senator Clinton, who, as I have indicated, has been with us every step of the way, leading on this issue.

Mr. GRAHAM. Mr. President, if it is acceptable to the chairman, I would like about 10 minutes, maybe less, to talk about a managers' amendment that has been accepted by the chairman and ranking member, to put in the record how important I think this is regarding military retirement, Guard and Reserves.

Mr. GRAHAM. I apologize.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, this is a very important debate. There is a lot of interest in this debate throughout the world. I am sure everybody at home is probably not sitting on the edge of their seats listening to what I am saying, but in many ways this debate will define the U.S. relationship with the Middle East and the world at large for a long time. The authors of this amendment are as patriotic as anyone I have ever met. They are fine Senators. They are smart. They are trying to do what they believe is in the best interest of the country and the world at large. The problem I have with the amendment and the reason I rise in opposition to it is that there is an underlying premise about this amendment that we need to set timetables to send a signal to the Iraqi people to do their part and to get on with the transition and to stand up faster and to get political solutions to hard problems faster so that we can come home, and without this amendment, the Iraqi people may just draw this thing out and rely on us too much. I understand your concern, but I take a different view of the Iraqi people. I am here today publicly to say that I could not be more proud of standing with the Iraqi people and their Government than I am now. What we have asked of them, they have delivered. Senator Dodd was right. Every time we tried to set deadlines, they delivered. They delivered on some of the most difficult circumstances imaginable. If you want to run for office in Iraq--it is tough in America; they say awful, bad things about us in this body when we run--they try to kill you, and they come after your family. So to those Iraqis who have joined the police force for the right reasons, to those who are serving in the military for the right reasons, to those politicians trying to bring that country together with a unity coalition government, my hat is off to you. I admire you. I am proud to stand by your side. I have no desire to leave you in a lurch. I have every confidence that you want us gone as much as we want to leave, but you understand your capacity is limited right now. The National Security Adviser said there is a roadmap for us to leave, and the Iraqi people want to have the ability to chart their own destiny sooner rather than later. To my friends in the Senate, if the U.S. Congress sets a timetable, it is a rebuke of the Government in Iraq. It is a vote of no confidence in the Iraqi people, and it will be seen as such on al-Jazeera and throughout the Middle East. There will be a timetable for us to leave. It will be performance driven, and it will be authored by the Iraqi people themselves. The day they set the timetable and they set the benchmarks, it will empower their Government and their people and it will diminish the terrorists. If we set those timetables and the benchmarks, it will diminish the Iraqi Government, all of the efforts of the Iraqi people, and empower the terrorists. I hate to say that I disagree with my good friends, but I do. We are going to come home one day. That day is not so far away. History will judge us by not when we left but by what we left behind. I want to leave behind a regime capable of pulling off something no one else has been able to do in the Middle East, a functioning democracy so the Shias and Sunnis and Kurds can live together under the rule of law and they can take out their differences at the ballot box and the courtroom. It has been 3\1/2\ years almost. They have come a long way. We have been at this over 200 years. We still have our problems. Under the best of circumstances it is very difficult to bring people together of different backgrounds, religions, and ethnic groups. We had our own Civil War. It started in my State. When we wrote our Constitution, after 11 years, women couldn't vote. African Americans were not even recognized as people. We have come a long way, and it has taken us a long time to get there. Our Iraqi friends, the moderates are fighting and dying for their own freedom. They have come a long way in 3\1/2\ years. I am begging this body, let us not, as a body, set a timetable that would diminish their sacrifice and not recognize it for what it is. The truth is, the Iraqi Government and the Iraqi people are doing historic things in the Mideast that no one else has been able to accomplish. They are not lazy. They are not indifferent. They are not letting us fight their war. They are fighting it alongside us and dying. They are dying in larger numbers than we are. If they pull this off with our help, the world will be eminently safer. If they fail, moderate forces in the Mideast will be less likely to rear their head and stand up against terrorists, and the terrorists will seize the moment in the decades to come. Never has so much been at stake for mankind and with so few people sacrificing. Stand with the Iraqi people. They want us out, but don't diminish their sacrifice.

Mr. GRAHAM

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

Mr. GRAHAM. Mr. President, I want to speak, if I may, regarding a proposal by Senator Bingaman concerning Guantanamo Bay and the disposition of detainees. I understand he introduced an amendment yesterday. I have the summary of it. If I mischaracterize it or if it is changed in any way, I apologize. I will try to give an overview based on what I know, with the understanding that if it changed, I stand corrected. Senator Bingaman, from what I understand, has an amendment that would require the United States to either charge, repatriate or release individuals held at Guantanamo Bay within 180 days of the enactment of the Defense authorization bill, and if for some reason the Government fails to comply within that timeframe, the Department of Defense would have to report back to Congress to tell us why. It provides further that charges could be filed in U.S. District Court, a military tribunal court or military commission or an international tribunal against detainees. If I may, I will express my concerns about this amendment. No. 1, the detainees at Guantanamo Bay are being held as enemy combatants. That is a concept that has been part of our law for quite a while. The Supreme Court has several enemy combatant case holdings. That is someone who is involved in hostilities but not in the normal course of combat. They don't wear uniforms. They are not supported by a particular State. They are fighting, in this case, for a terrorism cause that doesn't have a country of origin. They are irregular combatants. For many years in the military law, a regular combatant or enemy combatant has been considered a person outside of the protection of the Geneva Convention because that is an international treaty designed to protect lawful combatants and have procedures that every signatory country will abide by. A lawful combatant is someone who represents a State, wears a uniform, and operates within the rules of international military law. Al-Qaida, by their very definition, because they don't wear uniforms and represent a particular country, are irregular enemy combatants. The people at Guantanamo Bay have been captured in various parts of the world by the U.S. military or were turned over to them as being suspected of being involved in the war on terror. There are 500- something people down there now; over 200 have been released. Senator Bingaman's amendment would require the Government to release them all or charge them. The reason I believe that is not good public policy is because enemy combatants--you don't have to choose between trying them and letting them go. A prisoner of war is not required to be released until the hostilities are over. We have had Members of the Congress who were enemy prisoners during Vietnam and were incarcerated 5, 6 or 7 years, until the Vietnam war came to an end. This amendment, in an odd way, would allow enemy combatants to be released before hostilities are over, which is something not afforded to a prisoner of war. But a traditional prisoner of war is not subject to being tried as a war criminal for the mere status of being involved with the opposing force. I believe strongly that it is not advisable for this country to say as a matter of policy that every enemy combatant or unlawful combatant per se is a war criminal. Military trials or commissions should be conducted for people who are part of the enemy force who have violated the law of armed conflict. There are about 20-something people, I believe, facing military commission charges at Guantanamo Bay and haven't been tried yet because of Federal court proceedings affecting the outcome of the military commission status. This amendment would require the United States to make a choice that no other country has ever had to make: try them or let them go. The truth is that some of them deserve to be tried as war criminals. Some of them deserve to be taken off the battlefield until they are no longer a threat to our country and our coalition forces. And to have to let them go or try them is a choice the country should not have to make. Who is at Guantanamo Bay? There have been some high-profile stories about individuals who were sent there who may not have been involved in enemy combatant activities. Unfortunately, those things happen. You can get someone in your custody based on some bad information and, over time, find out you made a mistake. And 200-something people have been released under the current procedure. What is that procedure? The Geneva Convention says if there is a question as to whether a person is a POW, a prisoner of war, or an unlawful enemy combatant, the host country, the country in custody of that individual, must have a competent tribunal to make that decision. As far as I know--and correct me if I am wrong--the decision as to whether a person is an enemy combatant is a military decision. We don't have civilian trials. The Geneva Convention doesn't require a civilian judicial determination to be made. The determination of whether you are a POW who is entitled to the Geneva Convention protection, an enemy combatant or an innocent individual, is left up to the military. I argue that that is the way it should be, with due process rights. The problem with this war is that we don't know when it is going to be over because there will be no surrender ceremony. I am sensitive to that. I understand the Senator's concerns, and that is legitimate. The process at Guantanamo Bay now, as I understand it, is when somebody is sent there, a combat status review tribunal will review their case, a military intelligence officer, and a military lawyer will look at the case and determine if the individual before them is an enemy combatant or meets the definition of an unlawful irregular enemy combatant. The host country where the person comes from can intervene on their behalf. Evidence is collected. They don't have a lawyer, but they have a representative. Every year, that person's status is reviewed. An annual review looks at whether the person still has intelligence value, whether they are a threat to the United States or has anything changed about their initial status determination. Under an amendment passed that was authored by Senator Levin and myself, every Guantanamo Bay detainee now will have a chance to appeal their case to the Court of Appeals for the District of Columbia, and a Federal court of appeals at the District of Columbia will review the combat status review tribunal's action in that case to see if it was proper. So now we have civilian courts looking over the initial military determination. When it comes to military commissions and people being tried as war criminals, we have the presumption of innocence and the right to a lawyer, which is a very similar tribunal to international tribunals, very similar to the UCMJ but different in some regards. So the idea that we need to let the prisoners go or try them all, I think it would be a very bad policy decision to make because some of them can be dangerous, can be a threat to our country if released or they could have intelligence value but don't fall within the definition of war criminal. To say that every enemy combatant is going to be tried as a war criminal is not good policy because you are beginning to change the way the rules have worked for a very long time. We have had 200-something people released. About a dozen of them have gone back to the fight, unfortunately. So there have been mistakes at Guantanamo Bay by putting people in prison that were not properly classified. There have been mistakes about releasing people that we thought were not dangerous but turned out to be so. I have a summary of statements made by individuals who have been released from Guantanamo Bay but went back to the fight. I ask unanimous consent that it be printed in the Record.

Mr. GRAHAM. Mr. President, one of them is Mullah Shazada who was released from Guantanamo Bay on May 8, 2003. He assumed control of Taliban operations in southern Afghanistan. His activities reported including the organization and execution of a jail break in Kandahar. Abdullah Mahsud was released in 2004. He became the militant leader of the Mahsud tribe in southern Waziristan. We learned he had been associated with the Taliban since his teens and has been described as an al-Qaida facilitator. In mid-October 2004, he directed the kidnapping of two Chinese engineers in Pakistan. During a Pakistani rescue attempt, the kidnappers shot one of the hostages. Mohammed Ismail was one of two juveniles held at Guantanamo Bay. He was released in 2004. During a press interview after his release, he thanked the United States for providing him education opportunities in Guantanamo Bay and stated he would look for work after visiting his relatives. He was recaptured 4 months later in May 2004 participating in an attack on U.S. forces near Kandahar. At the time of his recapture, Ismail carried a letter confirming his status as a Taliban member in good standing. Abdul Rahman Noor, after being released in July 2003, has participated in hostile actions against U.S. forces near Kandahar. He was later identified as the person in a 2001 al-Jazerra interview described a mujhadeen defensive position claiming to have downed an airplane. The reason I mention these individuals is that mistakes have been made in letting people go. Once the military tribunal reviewed these individual cases, they made a determination the person was no longer a danger to the United States and possessed no additional intelligence value. They were wrong. These people and several others went back to the fight, and at least one of the people involved killed an American medic. The process we have at Guantanamo Bay is reform in a manner that I think is consistent with American values. This body, in an overwhelming vote, indicated to the Department of Defense that their interrogation techniques needed to be standardized and put in the Army Field Manual. That is a work in process. This body, in an overwhelming vote, gave every detainee at Guantanamo Bay a right to petition their status to Federal court for Federal court review. We have due process rights in place for detainees at Guantanamo Bay that I think are unprecedented in the rules of armed conflict and are based on the fact that this is a war without a definable end. But the amendment before us by my good friend from New Mexico would require this country to release the detainees en masse or repatriate them or charge them. The problem with repatriation is that one of the problems with closing Guantanamo Bay is, where do we put these people? We have had case after case where the detainee was eligible to be released but did not want to go back to their host country for fear of reprisal. The idea that we can take the 460 prisoners and open the gates of the prison and say, Go back, is going to be a problem because a lot of them have no place to go or won't be taken back. Another problem is that if we release these people en masse, some of them will become our worst nightmare. Information about statements made by detainees--I have another document here, where they openly avow a desire to get back into the fight and to kill Americans and to continue the war on terrorism. Simply stated, the people at Guantanamo Bay, in my opinion, are people who need to be looked at every year in terms of their status and whether they have intelligence value and whether they present a danger. And that decision can be reviewed by civilian authorities. They are not people for whom we should open the door and say, Leave or be charged, because the truth of the matter is that there are people down there who are enemy combatants who have not engaged in conduct that would fit a traditional definition of a war crime. I just don't think we need to make that choice. We need to make sure that every detainee has adequately been processed, that our country is accountable for their treatment, that our country is accountable for their legal status, and that we have a way to prove to the world and to our own public that the detainees are being confined within the rules of armed conflict and treated properly. This amendment would set in motion, I believe, forces that would come back to haunt us. Mr. President, I say to my good friend from New Mexico, I understand his concerns about Guantanamo Bay and the image problems that it has created, but I would argue that the reforms in which we have engaged have been real. We are not getting much credit for those reforms, but we are just going to have to understand as a nation that every critic of this country's policy doesn't have to make the decisions we do. The criticism coming from abroad about Guantanamo Bay is part of democracies being able to speak openly, but they are not coming to South Carolina. If we let them go, they are not coming to South Carolina. I will do everything I can to keep these people from coming into my home State. And I doubt we want them to go to Mexico, and I doubt they are going to go to Connecticut. I do not want to intermingle them with our military prison population because these people represent the hardest of the hard. I hope we can reform Guantanamo Bay and that one day it will be closed because the needs of the war on terrorism have been met. And I do hope that those who are war criminals in the truest fashion will be tried at Guantanamo Bay by military commission and those who are not war criminals will be held until they are no longer a danger. I do not believe it is advisable for this country to make a choice as a nation that no other nation has ever had to make before, and that is turning loose someone who is caught on a battlefield engaged in hostilities against our own people or try them all as war criminals. That has never happened before, and it shouldn't happen here. I yield the floor.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I ask unanimous consent that the text of the Project Seahawk Implementation Act be printed in the Record.

Mr. GRAHAM

Mr. GRAHAM. Madam President, I will give a little background, if I could, about this subject matter and area of inquiry. The Department of Defense initiated early on this year, and part of last year, a fairly dramatic increase in TRICARE premiums for military retirees and family members. The TRICARE program is, I think our membership knows, a military health care system for Active-Duty people and also for those who are retired, up to age 65. This is a provision for those 65 who can continue during Medicare eligibility. The health care part of the military budget is just growing leaps and bounds. Our chairman is sort of the champion of the TRICARE program, and it has been a wonderful program for military members and their families and retirees. But in 2015, it is going to be 12 percent, if nothing changes in the entire military budget. It is on an unsustainable course. We have not had a premium increase since TRICARE's inception. I will take a back seat to no one in wanting to help the troops, but the best thing we can do is create a benefit that is sustainable and not have to pick between health care benefits and armament and new weapons and all of the operational needs of the military, which are going to be eventually squeezed. In committee, Senator Nelson and myself, along with the chairman and ranking member, said to the Department of Defense: Stop, don't pass go, no fee increases. We are going to have the GAO and other groups look at ways to save money before you have to ask for fee increases. And, secondly, give us some idea if the Department of Defense numbers are accurate. Are they accurate in terms of the growth explosion in the cost of this program? So we are going to get information to make a good decision and basically put a hold on the fee increases for participation of TRICARE. That got us into the area of prescription drugs. One of the things that we have done for military members, and retirees in particular, is we have made prescription drugs very affordable and reasonably priced. What we are trying to do to save money is to allow an increase in retail prescription drug costs, which have again been static since the inception of the program, from $3 to $5 for a 30-day prescription for generic drugs, from $9 to $15 for a 30-day prescription of brand drugs. To counter that, we were going to have a zero copayment for those who chose to get their prescriptions filled through the mail. If you had a maintenance prescription, a drug need that would be recurring, and you used the mail system, there would be no copay at all. What we are trying to do there is get people into purchasing drugs in a way that is cost effective for the military and have some cost increase to keep the program sustainable. That is what this debate is about. I appreciate the chairman, who has been a great leader in this, working with Senator Lautenberg to try to find a way to get us past 2007. I will end on this note. This problem is going to get worse. Over time, the military health care footprint within the Department of Defense budget is on an unsustainable course. TRICARE is a great program, but we are going to have to look at ways to make it more efficient, look at cost savings and, eventually, we are going to have to go back to the military community and ask for some increased participation to make this sustainable for the next generation of military retirees and their families. If we don't, we are going to be in a dilemma we would not want to be in as a nation, having to pick between operational needs and health care needs. As a member of the Guard and Reserve--and I have done some time on active duty--I want to be as generous and as fair with the benefit package as the country can afford, but no benefit can be locked in time without some reevaluation and adjustment. After 2007 passes, we are going to have to start making hard choices. I promise all the Members of this body and those who may be listening to the military community that we are going to do it in a way that is acceptable, humane, rational, and not ask more than people can bear. The idea of trying to have a zero copayment if you would get your prescriptions filled through the mail is a great idea. It will be good for the military members participating in the prescription drug program, and I am convinced--and we will see after this year--that it will save a lot of money, specifically for those drugs recurring in need. The increases on the generic and brand names through the retail system are appropriate, and we will revisit that issue after this year. I just want the Members of the body to know that if we don't get ahead of the growth of TRICARE and try to implement changes in a systematic, incremental way, we are going to wind up one day where this body in the next decade is going to have to make some draconian choices. The way to prevent making draconian choices is to phase in changes that the force can accommodate and that will relieve the pressure on TRICARE. It is a wonderful program, and it needs to be on a sustainable footing. Right now it is on an unsustainable path. We will find out more information about how to reform it at the end of this year. Madam President, I say to the chairman of the committee, I appreciate all the effort he has given to create TRICARE. He worked in a bipartisan manner to create a health care program that has been very valuable to the men and women in the military, their families, and particularly retirees. This program, like every other program at the Federal level, is going to have to be looked at anew in terms of sustainability. I look forward to working with the chairman and others to make it sustainable.

Mr. GRAHAM. Madam President, if I may add, the projections are that the military health care program will be $65 billion in costs by 2015, 12 percent of the DOD's budget. We will be getting a real hard look to see if those moneys are accurate and ways to save money. Madam President, 2007 will be a year in which we look at the true cost component of TRICARE projected out in the future and try to think of ways to make it sustainable, because if the projections are anywhere near accurate, this program becomes unsustainable over time. It is worth saving, and I think anyone in the military would want it to be saved. We are just going to have to be honest with them about the cost. They cannot be locked in time forever. Amendment No. 4205, as Modified

Mr. GRAHAM

Mr. GRAHAM. Mr. President, next week, on June 2, Ms. Nancy Jean Price will retire from my office having served the people of South Carolina for over 30 years as a congressional constituent liaison. I rise today to recognize the outstanding service and dedication she demonstrated throughout her extensive and distinguished career. A native South Carolinian, Jean is the daughter of Mr. Joe B. and Mrs. Trula W. Price. She graduated from Lander University in Greenwood and began her career as a congressional staffer in the office in the officer of former U.S. Representative Butler Derrick, who represented South Carolina's Third Congressional District from 1974 to 1994. Jean wore many hats for Congressman Derrick in his Anderson, SC, district office. Whether working as a constituent liaison, a special events coordinator, a caseworker, or even as a manager, Jean went above and beyond what was required to address any task or challenge she confronted. Following Congressman Derrick's retirement in 1994, I was elected to Congress and was fortunate Jean accepted a constituent services position in my Aiken office. After my election to the Senate in 2002, I promoted Jean to low-country regional director, and she helped establish our office in Mt. Pleasant. In the 12 years Jean has worked on my staff, she has consistently and selflessly served constituents, answered questions, and solved countless problems. In doing so, Jean has garnered the personal and professional respect and admiration of her friends and colleagues. She is an upstanding member of society. She represents the very finest in Christian values dedicating much of her free time to church and community work in various leadership and service positions. But above all, Jean has been dedicated to her family. While well deserved, Jean's retirement is a great loss for me and the State of South Carolina. Her service heart will serve as the gold standard for all staff that follow behind her. I will miss Jean, but I wish her a prosperous retirement and great success and happiness in the future.

Mr. GRAHAM

Mr. GRAHAM. This amendment is important in this regard. When is it enough? When does the punishment fit the crime and when does it go too far? What role should tax policy play in punishing a violation of the law, whether it be a misdemeanor or a felony? I can tell you the role the Tax Code plays when it comes to felonies. If you are a drug dealer and you have been convicted and you are on probation or in jail, once you get out or off probation, you are not denied the earned-income tax credit. If you are a convicted child molester, the Tax Code doesn't change because of your crime. I would argue that for the crime we are dealing with, coming across the border illegally, jumping in line, a nonviolent offense, we need to have some reasonable punishment and not go too far. If we change the Tax Code because they violated our law, then how do we look people in the eye in the category of illegal immigrants and tell them that they are being punished through the Tax Code in a way a rapist, murderer, or drug dealer is not? That is not proportional. It is a misdemeanor under our law to cross the border illegally with no specified crime, a maximum of 6 months in prison. I have been a prosecutor. Senator Sessions has been a prosecutor. I can assure you, there are people who do really bad things that don't have to go through what the illegal immigrants are going to go through to earn their way back into our good graces. They have to pay a fine consistent with a misdemeanor offense. They have to learn English. If you have committed a felony outside of immigration law, you are not eligible to get in the program. If you have committed three misdemeanors outside of immigration violations, you are not eligible to get in the program. If you fail the English test, if you are out of work for over 45 days, you are subject to being deported. What is left will be hard-working people who are trying to pay their debt back to society and, on top of all that, have to pay all of our taxes. And they should. It would be great if everybody working in America paid their fair share of taxes. It would be unfair, after you try to pay your debt to society by making it right after violating the immigration laws, which is a misdemeanor, to throw on top of that Tax Code treatment that no other felon would get. There is a point in time here where we are going to not just punish people for a violation of the law but declare war on who they are. I don't want to cross that line as a nation. I yield the floor.

Mr. GRAHAM. Mr. President, I thank the Senator for yielding. I don't know how to say it other than just to say it. We are beginning to take tax policy focusing on one group of people and tying it to criminal behavior disproportionate to the crime, and we are beginning to set the stage for a different kind of America. Not only is it ill-conceived, it is dangerous. You can rape someone, you can murder someone, you can be a convicted child molester, and our tax laws allow you to get a refund. What kind of crime are we talking about here? Coming across the border illegally, breaking in line to try to get ahead, because here you can do really well and on the other side of the border you do really poorly. I am sorry people did that. They need to pay for their crime of coming across the border, which is a misdemeanor with no specific fine set, with a 6-month cap on punishment. But what are we going to do to those people who come here and we have allowed them to sit here--not sit here, work here, for our benefit, doing things we don't want to do for years--we are going to say to the children who are American citizens, You are an American citizen as much as I am, but when it comes to your parents who came across that border for you and your future, we are not going to just punish them, we are going to take the whole Tax Code and turn it upside down and do to your parents what we don't do to a drug dealer or a rapist or a murderer. To my good friend from Nevada: Enough is enough. You have gone way too far. We need to get a grip on who we are as people. Punishment, yes. Revenge, no. You want to talk about fairness? I have been a prosecutor, I have been a defense attorney, and I know you have to pay your debt, but this is a place where you can start over--at least it used to be. It is a place where you have a chance to right your wrongs. Under this bill, you do pay a fine; you do go through a very long process to earn your way back into our good graces. It is a misdemeanor. You pay a fine. You have to learn English. If you are out of work for over 45 days, off you go. If you commit a felony or misdemeanor unrelated to immigration, off you go. We need the workers. We don't need bad people. We need good people. Every now and then, good people do bad things. At least I have found it to be so. Count me in that category. I hope you will forgive me if I do a bad thing, because I have done plenty of bad things. It is because people have seen the good in me, allowed me to start over and do right. That is why I am in the Senate today, because people saw in me some things I didn't deserve to have seen. So yes, let's give them punishment, make them do right, make them learn our language, make them pay taxes and pay a fine, make sure they don't commit crimes. But once you pay taxes, let's don't turn the Tax Code upside down just to kick you around after you have done what we have asked you to do. Please vote no. I yield back. Earned Income Credit

Mr. GRAHAM. Mr. President, my very good friend from Nevada is driven by what he thinks is fair and right. I have a totally different view. Here is what I think is fair and right: Punish people appropriate to the crime; don't take tax policy and connect it to criminal law. What we are saying people right now is: pay your taxes, learn English, pay a fine. But let's not come up with tax policy for one group of people who are now legal and say: You have to pay, but you don't get what anybody else in the country legally gets, and we have made you legal. What damage are we going to do? We are going to take the tax law and turn it upside down and focus on one group and kick them around after they do everything else that everybody else has to do. That is not the best of this country. That is not consistent with the punishment versus the crime. Why would we ask somebody to pay their taxes and then say: Thanks for the money; you don't get any other benefits in the Tax Code. Rapists, murderers, and thieves go to jail, but they get refunds if the Tax Code says so. The only people who are not going to get a refund after they pay the taxes is this group of people working hard? That is not right.

Mr. GRAHAM. Mr. President, I think this has been a very good debate. Why is the Chamber opposed? Why are the groups backing the bill opposed? Do they want just anybody and everybody? Some probably do. I don't believe that is what motivates the authors of the bill. We are trying to marry up needs, and the numbers we are picking do change because of the politics and because of projected needs. What I would say to my good friend from New Mexico is, if you think you are helping, you are not. I am not questioning your motives. I will never question the motive of any Senator who votes differently than I do because they are all intelligent people, and I don't claim to know more about any particular area than any other of my colleagues. But what we are doing is trying to create order out of chaos because we live in a chaotic world when it comes to immigration. The numbers change every time the bill changes. Hagel and Martinez was a new proposal, a new idea that broke people into different groups. The 2-to-5 year group of people was treated differently. Senator Bingaman was right, we tried to exclude that. Whether it is 290,000 or 600,000--whatever, what I don't want to do is artificially deny my country the ability to assimilate hard-working people I think we need. The fundamental disagreement between me and the Heritage Foundation and Senator Bingaman is I believe that immigration is going to be regulated by the needs of our economy. When our economy gets to the point that we can't tolerate more people, the numbers are going to change. The Heritage Foundation assumed escalations in numbers apart from supply and demand. To my good friend from New Mexico, the 11 million to 12 million--whatever number it is--have already been assimilated into our workforce without damage to our workforce because we have historically low unemployment, and the economy is humming, from a Republican sound bite point of view. This is about as good as it will ever get. When you change the formula, when you introduce the family element of having to choose between family status and work status in a different kind of way than the base bill, then you are going to create a chaotic political event, a chaotic assimilation event. What I am trying to urge my colleagues to do is let us not create disorder in a way that just doesn't reflect what we want to be as a society. We need the workers. I think we need more than 290,000. But when you start looking at counting the children and family members and they are not workers, you are hurting our business community, and you are putting a burden down the road on people. That just really makes me feel uncomfortable. I respect Senator Bingaman's approach to this problem. He has limited the number of people that can come in. I fundamentally disagree with him. I think 5 years from now we are going to need more people, not less. Japan is our model in this regard. The Japanese demographics have changed. There are more older people there than younger people. They have a closed society. They don't assimilate people from outside their culture, and their gross domestic product has slowed down. Their workforce needs are being unmet. Whatever number we pick--and we can all talk about what the right number is--to make this change at this stage in the proceedings to introduce family status versus work status is a new concept, something we haven't all thought about and worked through before. That does more harm than good. I hope we can march forward, work with the numbers based on what we think the economic needs of the country will be in a way that is fair to people. We have changed the bill fundamentally from Hagel-Martinez. We are trying to accommodate business needs; we are trying to accommodate the needs of our society in terms of people violating the law. But this idea that we are going to flood America with people who can't add value to America, my colleagues, is contrary to what this bill is about. If you come here under this bill, whether you are a future flow or you are with the 11 million, you will have to prove to us over time that you are worthy of staying here. You will have to earn your way into working in this country and staying in this country. You are not getting anything for free. As a matter of fact, the future flow people and the 11 million people are going to be asked to do more than any generation that has ever come to this country. I think there is a point in time where we need to stop and try to have assimilation rules that bring about order, not chaos. I hope that we will reject this attempt to change the bill in the eleventh hour because it will create political and economic chaos. I yield the floor.