Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I rise in support of the nomination of Judge Michael B. Mukasey to become the Nation' s 81st Attorney General. Judge Mukasey has devoted more than 22 years to public service, 4 as a Federal prosecutor and more than 18 as a Federal district court judge for the Southern District of New York, one of the most prominent Federal district courts in the United States. For 6 years he was the chief judge. During his tenure on the bench, Judge Mukasey handled some of the most challenging cases in recent history. In 1995, he presided over the terrorism trial of the ``blind Sheik'' Omar Abdel Rahman and nine other defendants accused of plotting terrorist attacks on various sites in New York City. Rahman was also one of the terrorist masterminds of the 1993 World Trade Center bombing. While presiding over the case of Jose Padilla--an American citizen who was later convicted of, among other things, conspiring to provide material support to al-Qaida--Mukasey issued key rulings that helped set judicial precedent in the war against terrorists. And in the wake of September 11, 2001, he presided over the difficult litigation of World Trade Center--related insurance claims. During these cases and throughout his career, Judge Mukasey's knowledge, integrity, and consummate fairness have won him the respect of his colleagues, the attorneys who appeared before him, and many others. In its opinion upholding the verdicts in the 1995 terrorism case, the U.S. Court of Appeals for the Second Circuit in an unusual public commendation praised Mukasey' s ``extraordinary skill and patience, assuring fairness to the prosecution and to each defendant and helpfulness to the jury.'' The court added, ``[h]is was an outstanding achievement in the face of challenges far beyond those normally endured by a trial judge.'' Judge Mukasey's career has been characterized by his commitment to upholding the rule of law. He has never served in a political role, and his nomination should be considered above the partisan fray. According to the Justice Department's mission statement, the Attorney General's first allegiance should be to ``the fair and impartial administration of justice for all Americans,'' not to any individual or political party. Indeed, Judge Mukasey's reputation for fairness and impartiality is so well-known and respected that the senior Senator from New York, Senator Schumer, even recommended him to be a Supreme Court justice. It is unfortunate, however, that despite the nonpolitical character of Mukasey's nomination, some Democrats may attempt to hold his nomination hostage in exchange for documents related to the firing of U.S. attorneys. Leaving aside the fact that Congress has no right to these documents, which are covered by executive privilege, Judge Mukasey's nomination has nothing to do with the firing of these U.S. attorneys. The President has nominated a distinguished and nonpolitical candidate. The Senate should reciprocate by using the confirmation process not to settle old scores or politicize the nomination, but to examine the qualifications of the nominee fairly. Since the Carter administration, attorney general nominees have been confirmed, on average, in approximately 3 weeks, with some being confirmed even more quickly. The Senate should immediately move to consider Judge Mukasey's nomination and confirm him before Columbus Day. The Justice Department needs an Attorney General with the foresight, experience, and resolve to lead the Nation's top law enforcement agency and tackle the difficult challenges presented by the post-9/11 world. I believe the qualities and background of Judge Michael Mukasey, combined with his extensive experience in national security and terrorism cases, commends him to serve as attorney general in these troubled times.

Mr. KYL

Mr. KYL. Mr. President, as I said, the chairman of the committee is correct, the intention was to simply lay this amendment down tonight on behalf of Senators Lieberman, Coleman, and myself. We will debate it after we have concluded further business. I yield the floor.

Mr. KYL. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. KYL. That is correct, Mr. President.

Mr. KYL. I will be happy to yield the floor to the Senator as soon as I conclude my business. Then the Senator from Massachusetts can go ahead and make his full statement, if that would be all right. Amendment No. 3017 To Amendment No. 2011 Mr. President, what I want to do, in concluding my remarks, is, on behalf of Senator Lieberman and Senator Coleman and myself, send an amendment to the desk that is a sense of the Senate on Iran, which is how it is titled.

Mr. KYL. Al-Qaida in Iraq--as is evident from the article I had printed in the Record; and I would be happy to share a copy of that article with my friend from Massachusetts--is a major force in Iraq, and is, in addition to being part of the force we are fighting, an instigator of violence between some of the groups the Senator from Massachusetts mentioned. Now, let me say one other thing. I intended to conclude my remarks by laying down an amendment which Senator Lieberman and I are prepared to debate tomorrow, not right now. But the Senator from Massachusetts mentioned the IEDs. Of course, I know the Senator is aware that a lot of the newest equipment and training, and in particular this virulent, this very destructive IED that is being used in Iraq, is coming from Iran, and that part of what we need to do is to deal with Iran in the context of this conflict in Iraq as well, and in particular the group in Iran that is supplying this equipment. For that reason--

Mr. KYL. May I complete my answer to the Senator's lengthy question?

Mr. KYL. Mr. President, I will be happy to respond by saying, I am aware that many of the things asserted by the Senator from Massachusetts are incorrect. I am aware al-Qaida in Iraq is a major force----

Mr. KYL. Mr. President, what I am saying is the primary conflict that concerns the United States of America forces right now is defeating al- Qaida in Iraq and the conflicts that al-Qaida in Iraq have instigated, which include conflicts between Sunnis and Shias.

Mr. KYL. Mr. President, I would be happy to yield.

Mr. KYL. Fred Kagan is a respected expert, a resident scholar at the American Enterprise Institute. The point he makes in this erudite article is that the primary problem for our forces in Iraq is al-Qaida in Iraq. It is the Iraq component of al-Qaida, that either we are fighting the al-Qaida forces directly--about 90 percent of whom are Iraqis, though the leadership significantly primarily comes from other places--Egypt, Jordan, and so on--or we are fighting to maintain peace between people whom al-Qaida in Iraq have instigated a conflict with, as they did when they bombed the Golden Mosque in Samarra, and that our primary effort, therefore, is in defeating al-Qaida in Iraq. The reason I bring that point up here is also to go to the heart of one of the points of the Levin-Reed amendment which is, we need to change our mission. Part of it is to change the mission to deal primarily with the counterterrorism operations against al-Qaida and al- Qaida affiliated groups. That would be certainly al-Qaida in Iraq and other international terrorist organizations. That is going to be one of the three new missions in addition to protecting U.S. and coalition forces and infrastructure and training and equipping the Iraqis. All three of those are part of our mission today. It is simply not the case that we can separate our mission today from this mission in any meaningful way. As General Petraeus testified when he was asked about a new mission, he said counterterrorism requires not just the special operations forces--a relatively small force that would be left behind under the proposal that is pending before us here--but it requires other forces as well, including the kind of combat operations we engage in today, our general conventional forces, along with intelligence, reconnaissance, surveillance, and all of the other forces, which also include logistical support, that are currently used in the operations against al-Qaida and the other terrorists who are there. So it is simply a mistake in concept here that somehow we are performing a different mission today than would be performed in the future, that that is a counterterrorism mission and it can be performed with different and less troops. General Petraeus has said that is simply not true. If you stop and think about it for a moment, you have heard reports of the way some of these operations are conducted. You get good intelligence from a predator aircraft or a human source or someone you have an Iraqi, al-Qaida, or other terrorist group that is going to be planting an IED in a location or they are making explosives in a location, and you have an F-16 that has been up in the air for an hour or two, and they get this information, and they relay it to the F-16, and they say: Go to these coordinates and drop a bomb on those coordinates, and he does that. Now, it is not some special forces thing that deals with al-Qaida, in other words, as a counterterrorism type of war that is totally different than anything else. You use many of the same kinds of personnel and tactics and equipment you use in conventional warfare. That is the point General Petraeus was trying to make. It is an artificial distinction to say there is going to be a new and different mission under the Levin-Reed proposal than exists today and it can be done with a much smaller and different kind of force. General Petraeus says: It is simply not so. That is the primary reason I have trouble with this proposal that is pending. I hope my colleagues will defeat it. I did want to also make this point in the debate: We sometimes get so wrapped up in discussing what we think that we do not stop and think about the people who are actually doing the fighting there. I have in mind both our troops and the very fine officers who lead the troops. We have all visited them in Iraq. We have visited those who have been wounded, and we grieve with the families of those who have been lost. These are America's finest, and they are fighting the worst of the worst. They are fighting killers who prey on innocent people, have no conscience in killing anyone who is necessary to suit their needs. This is a brutal war against a brutal enemy. We are asking some of our finest young men and women to go into harm's way to perform this mission. They want to know what they have done so far--the gains they have produced, as General Petraeus called them--will not have been won in vain, that those gains can be helped. What General Petraeus said in his testimony--I am going to summarize these quick four points--``the military objectives of the surge are, in large measure, being met,'' ``that Coalition and Iraqi forces have dealt significant blows to al-Qaeda-Iraq''--incidentally, it is a point Frederick Kagan makes in some detail in this article I am having printed in the Record--third, ``Iraqi elements have been standing and fighting and sustaining tough losses, and they have taken the lead in operations in many areas,'' and, finally--this is the point I am leading up to--``we will be able to reduce our forces to the pre-surge level of brigade combat teams by next summer without jeopardizing the security gains that we have fought so hard to achieve.'' That is the key, and that is what the President said should unite us. We would all like to bring our troops home, as many as soon as possible. The more success we have, the better we are able to do that. But we do not want to do it if it means we lose what we have fought so hard to gain. I think almost all of us can agree with that proposition. But that is why I reached the conclusion that the particular amendment that has been proposed here would be counterproductive. Fortunately, polls of the American people are beginning to show they support the Petraeus recommendations. In fact, I was told of a new Pew poll within the last few days that had the American people supporting the Petraeus recommended troop reductions by the number 57 to 28. That is an astounding change from American public opinion of a few months ago. So the American public supports what our troops are accomplishing now. To try to find some way to politically triangulate between an immediate withdrawal and following the Petraeus recommendations, which is essentially what I gather the amendment before us would attempt to do, is to try to impose an artificial political construct in a very dangerous and very complex environment. There is an old saying that for every complex problem there is a simple and wrong solution. I think that is what we have here. We have a very complex situation, a very brutal enemy, and an attempt to try to triangulate it in order to get a certain number of votes in the Senate, to suggest that we can change the mission with a different mix of force than we have, contrary to General Petraeus's testimony, I think would be a big mistake. So I urge my colleagues to take these considerations into account when they cast their vote and, in particular, again, go back to what General Petraeus said. There was a lot of wisdom in his testimony. I think all of us here recognize General Petraeus, General Odierno, and all of the other fine officers who are in Iraq have given us a path to achieve success in Iraq. The sooner that success can be consolidated, the sooner our troops can come home. Exhibit 1 [From the Weekly Standard, Sept. 10, 2007] Al Qaeda in Iraq--How To Understand It. How To Defeat It. (By Frederick W. Kagan) Al Qaeda In Iraq is part of the global al Qaeda movement. AQI, as the U.S. military calls it, is around 90 percent Iraqi. Foreign fighters, however, predominate in the leadership and among the suicide bombers, of whom they comprise up to 90 percent, U.S. commanders say. The leader of AQI is Abu Ayyub al-Masri, an Egyptian. His predecessor, Abu Musab al Zarqawi, was a Jordanian. Because the members of AQI are overwhelmingly Iraqis--often thugs and misfits recruited or dragooned into the organization (along with some clerics and more educated leaders)--it is argued that AQI is not really part of the global al Qaeda movement. Therefore, it is said, the war in Iraq is not part of the global war on terror: The ``real'' al Qaeda--Osama bin Laden's band, off in its safe havens in the Pakistani tribal areas of Waziristan and Baluchistan--is the group to fight. Furthermore, argue critics of this persuasion, we should be doing this fighting through precise, intelligence-driven airstrikes or Special Forces attacks on key leaders, not the deployment of large conventional forces, which only stirs resentment in Muslim countries and creates more terrorists. Over the past four years, the war in Iraq has provided abundant evidence to dispute these assertions.

Mr. KYL. Mr. President, in view of the fact that there are a series of other speakers who wish to address this matter, I am going to ask unanimous consent to put an article in the Record to respond to one of the arguments that has been made, and then I will briefly respond to the others. To the point that this is a civil war in Iraq and that is the justification for American forces being withdrawn, I ask unanimous consent that an article by Frederick Kagan entitled ``Al Qaeda in Iraq,'' dated September 10 and appearing in the Weekly Standard, be printed in the Record after my comments.

Mr. KYL

Mr. KYL. Mr. President, I will be brief. I know there are others who wish to speak. I would like to reiterate what Senator McCain and Senator Warner have said with regard to the pending amendment. All of us have the utmost regard for the junior Senator from Virginia and his intentions with respect to this amendment, but it is also true that despite those best intentions, there would be very unfortunate consequences should his amendment be adopted. It has been well presented by a number of my colleagues as to what those consequences are. Secretary Gates himself has personally responded to the possibility of such an amendment being adopted by noting the adverse consequences for his ability and those of the military commanders to deal with the constraints that such an amendment would place on their ability to deal with individuals and units being deployed. Part of the problem, as I understand it, is the amendment applies not just to the units of military combat but the individuals within those units because it relates to the specific amount of time those individuals spend back home either in training or at rest while they are not deployed. Part of the problem, as Secretary Gates personally related to me, is the fact that when you get ready to send a unit abroad into theater, especially for a combat mission, you want them to be not only trained together but prepared to do everything our military does in the middle of combat with a unit-cohesive approach to protecting their friends and carrying out their mission. They do this by training together and fighting together. The concern expressed was that if you get into a situation where Congress imposes a law on the Executive, which is then binding on the military commanders about the exact amount of time that is permitted for troop rotation, that the individuals responsible for putting these units together are going to have to review each and every member within that battalion, for example, to determine whether the appropriate amount of time back home has been spent as opposed to in theater and, therefore, to the extent they do not meet the criteria, pull them out of the units so others then can be plugged in. This may be on the eve of deployment. It could be at any point. The result is you do not have the kind of unit cohesiveness you would otherwise. You have people who have been plugged into military units who should have been training with them all along, so when they go into combat, they fight as one. That could put forces at risk. In addition to that, because you will have to draw people from other places, the concern is it could put greater strain on the Guard and on the Reserve, filling in for slots that are vacant from Active-Duty personnel. The Secretary has spoken to this, as I said. It has been well presented by Members on the floor as to what his concerns are. The last point I would mention, and it is not a small point, is the attempt by Congress to dictate very specific terms of operational flow of individual members of our military, which is clearly not within the purview of Congress's jurisdiction. I know there has been an attempt to make an argument that the Constitution does not prohibit this. You have to stretch pretty far as a lawyer to make that argument. It is clear under the Constitution the Founders thought it would be best if the President, the Executive, be the Commander in Chief of the military forces. If anything should fall within his purview as Commander in Chief, and then within the chain of command to his military commanders, it should be the individual soldiers, sailors, airmen, and marines fighting in theater, it should be the individual--the decision of those commanders with respect to the deployment of those individuals. That is about as specific and personal as you can get with respect to a Commander in Chief's jurisdiction over these fine men and women who serve for us. To suggest that Congress actually has the authority to override or to bind any future Commander in Chief in this regard I think is to stretch the Constitution way beyond what the Founders thought and way beyond what makes sense. Somebody has to be in charge. You can't have all of us, as smart as we are, as ``armchair generals'' deciding all of these details of deployments with respect to the members of our military. It does not make sense. As Secretary Gates said, it could put our folks at risk. Why would we want to do anything that might put them at risk? I know this isn't the intent of the author of the amendment, but it is very clear that one of the unfortunate consequences of this is the indirect--the backdoor--influence on the amount of time we can spend in this surge. It is probably true that as a result, were this amendment to be adopted, the way the surge is carried out, the time within which troops could be redeployed home will be adversely affected. That is an unfortunate consequence of the amendment. So for all these reasons, I hope my colleagues will be very careful about binding future Presidents, about getting very close to the line in terms of constitutional policy--I think going over the line--and intruding into an area that could put our forces at risk. Take the concerns of the Secretary of Defense--whom I think all of us have a great deal of confidence in--take those concerns into account. Don't dismiss them. They are very real. I think he has expressed them in a most serious way.

Mr. KYL. Mr. President, let me respond to some of the arguments that have been made in support of this amendment and urge my colleagues, as they have done in the past, to reject it. The first thing that must be clarified is that the writ of habeas corpus is not being restored. It can't be restored because it has never existed to question detention. POWs and enemy combatants, detainees, have never, in the history of English common law or American jurisprudence, had the constitutional writ of habeas corpus to challenge their detention--never. So it is a mistake for those who support this amendment to claim that somehow we need to restore the right. It has never existed for this purpose; no case in the history of English or American jurisprudence or anywhere else in the world, for that matter. Yesterday our distinguished friend and colleague Senator Dodd praised and upheld the honor and wisdom of those like his father who participated in the Nuremberg tribunals after World War II. It is well that he should. Along with his father, Thomas Dodd, is, of course, Robert H. Jackson, who became a Justice of the U.S. Supreme Court in 1941 and who returned to the Court after serving as chief counsel at the Nuremberg tribunals from 1945 to 1946. The heroes of American justice and the lions of Nuremberg did not become evil men or ignorant in the law in the period between 1946 and 1950, the year that Johnson v. Eisentrager was decided by the U.S. Supreme Court. It is a case in which Justice Jackson delivered the opinion of the court that enemy combatants have no constitutional right to habeas corpus. That was the holding in the case by the very jurist who presided over the Nuremberg trials. He knew what he was talking about. That precedent remains the law of the United States to this day. My colleague from South Carolina quoted Justice Jackson in that decision in which he said he could think of nothing that would fetter our commanders more than granting to enemy POWs a right to contest their detention, a constitutional habeas corpus right to question their detention in American courts. He said the very act of war is to subdue your opponent and for that opponent to have the right to require you to go into the courts of your land to defend your capturing of that enemy would be, from the commander's standpoint, an impossible burden to bear. He was right. It is the wisdom and correctness of that decision and all of the precedents that we defend today. So, first, this is not about restoration of a right. With respect to questioning detention, that right has never existed. The reasons why should be evident to us all. Secondly, to the extent there needs to be a process for determining whether an individual should be detained, this Congress has gone further than ever in the history of our country and granted an unprecedented process and procedure for that issue to be resolved. After the military tribunals sort out the people who have been captured and they determine, based upon the evidence they have, whether to detain these individuals, what we have granted to these detainees is a right never before granted. It is unprecedented in the history not just of the United States; no other country has done this. We allow that detainee to appeal that detention to a court in the United States, a Federal court, and not just any Federal court, the U.S. Circuit Court for the District of Columbia, the U.S. Court of Appeals for the District of Columbia, which many view as the court directly below the U.S. Supreme Court. And from a decision of that DC Circuit Court, the losing side can petition for writ of certiorari to the U.S. Supreme Court. Never has such an unprecedented legal right been granted to a POW or a detainee. So we should not be suffering under the illusion that by not granting habeas, they don't have any rights. They have more rights than they have ever had. I would briefly respond to my good friend and colleague Senator Specter, who cited an affidavit of an individual who said, from his perspective, the evidence of the Government was inadequate in a case or in a series of cases, there are three remedies for that. The first is that the tribunal says the evidence is inadequate. The detainee gets to go. The second is for the court to ask for more evidence and say this isn't sufficient; do you have anything else you can provide. Of course, it is usually a question of classified information that the Government is loathe to release because frequently it is from a source to which a commitment has been made that the source would not be revealed or that the intelligence wouldn't be revealed, or sometimes it is from another country that we have gotten the information from and we have also made agreements with those countries not to air intelligence they provided to us. So there is always a tension between how much evidence the United States wants to reveal of a classified nature in order to keep this person in detention. But that is the second remedy. The third remedy is if the court nonetheless decides that there is sufficient evidence, the individual is detained, he can appeal that detention to the circuit court. The circuit court can make all of those same inquiries. So you have one of the most prestigious courts in the country making the final decision about whether the evidence is sufficient. That is certainly adequate process. The Congress has ratified that twice through our decisions in dealing with the statutory right of habeas. Remember, there is the constitutional right and a statutory right of habeas. What Congress did 2 years ago, in consideration of the Detainee Treatment Act, was to develop a compromise that provided this procedure and make it clear, we thought, that the statutory right of habeas did not apply to these detainees. A subsequent court decision said: Well, you made that clear with respect to future cases, but for pending cases we think you have not made it clear. So we came back and made it clear that the statutory right applied to neither the existing cases nor future cases. Of course, Congress has the right to limit the statutory right of habeas corpus. So neither the statutory right nor the constitutional right has provided a remedy for these detainees. There is an alternative remedy that is perfectly adequate. When the Military Commissions Act was marked up by the Armed Services Committee--the bill that is before us--it was adopted with an even more specific provision removing Federal court habeas jurisdiction over enemy combatants to clear up any remaining doubt after the Supreme Court's interpretation of the DTA in the Hamdan decision. That vote, last September, was 15 to 9, including all the committee's Democratic members. Were they all wrong about the Constitution at that time? After subsequent negotiations that did not change the habeas provisions in the bill, the MCA passed this body on a vote of 65 to 34. We have acted on this matter. I urge my colleagues, when they vote in a few minutes, to refer to their previous vote. It was correct at that time. It remains correct today. If, by some reason, we are wrong, and the case the Supreme Court has before it decides that this fall, then there is no necessity for us to act in a statutory way now. It is not going to change what the Court decides. The Court will say that right exists, and nothing we do will affect that. It would be unnecessary in any event. But if the Court confirms we are right, then it would not only be unnecessary but wrong for us to change that law by supporting the habeas amendment in a few minutes. The final point I wish to make is that the consequences of granting the habeas right would be horrendous. Justice Jackson referred to this in the Eisentrager decision. I can be more explicit. But as he said: No decision of this Court supports the view. None has ever even hinted that the right of habeas existed in this case. What would the consequences of granting habeas be? At least 30 detainees who have been released from the Guantanamo Bay facility have since returned to waging war against the United States and our allies. A dozen released detainees have been killed in battle by U.S. forces. They went right back to fighting us. Others have been recaptured. Two released detainees later became regional commanders for Taliban forces. One released Guantanamo detainee later attacked U.S. and allied soldiers in Afghanistan, killing three Afghan soldiers. Another former detainee killed an Afghan judge. One released detainee led a terrorist attack on a hotel in Pakistan and also led a kidnaping raid that resulted in the death of a Chinese civilian. This former detainee recently told Pakistani journalists he plans to fight America and its allies until the very end. The point here is even detainees whom we have released, either because there was insufficient evidence to hold them or because we deemed they no longer posed a threat to us, have gone back to the battlefield and have fought us and fought our allies, have killed and been killed. These are dangerous killers. This is not some law school exercise we are going through here. This is not the American criminal justice process. This is dealing with terrorists who are fighting us on the battlefield, and will continue to do so if they are released improperly. That is why dealing with something such as habeas is a very serious--very serious--matter. I mentioned the problem of classified evidence. In a habeas trial, there clearly would be a right of the defendant or the detainee to both call witnesses--he would literally be able to call his captors, the people who captured him on the battlefield and require them to verify his identity and the reasons why he was held and why he needs to continue to be held--totally disrupting our operations--and classified evidence would probably be required in most of the cases because these are people on whom we have gotten good intelligence as to their intentions and their past activities. Much of this intelligence is highly sensitive as it comes from foreign sources and human sources to whom we have made commitments that we would not reveal the information they provided to us. It is a Hobson's choice, then, if you treat this like an American trial, where you say either the Government has to come and make this classified evidence available--and then it becomes public--or you have to withhold the classified information and let the detainee go. That cannot be the case in the case of these detainees. That is another practical reason why you cannot have the habeas granted to allow them to contest detention. Again, put this in the context. What we have is a process that allows them to contest their detention at several stages. It allows counsel to have access to at least some of the classified information. It allows the court--and, in fact, the court of appeals has said it has the right--to review this information, all of the information that is relevant to a particular detainee's case. The process is not lacking. It is not as if you have to grant habeas in order for these individuals to have a fair determination of their detainee status. They have that today. What they do not have is the extra right that habeas accords American citizens, people here in the United States, to call the witnesses to the court who captured you, to call up all of the classified evidence that is used against you--for the detainee to have a right to that. The judge who tried the 1993 World Trade Center bombing case and the Padilla case made the point that when information was granted to the lawyers of the detainees in that case, within 10 days the information that was supposed to remain classified--the lawyers were not supposed to reveal it to anyone because it was highly classified; it included the names of coconspirators--within 10 days that information was in Sudan and was in the hands of Osama bin Laden. He knew because his name was on the list that we were after him. He was named as a coconspirator in the case. So when the habeas right exists, and you have an even greater requirement to release this information, it is inevitable that highly sensitive information in fighting this war on terror will find its way into enemy hands. So the detainees can get back to the battlefield and the highly sensitive information will be very much jeopardized. These are reasons not to grant, for the first time, a writ of habeas corpus. It is a reason to sustain what we have established for these detainees--a very fair procedure. I urge my colleagues not to grant the cloture motion, to vote ``no'' on cloture, so we do not open up this can of worms, so we can continue to fight the war against these terrorists. I reserve the remainder of the time on this side.

Mr. KYL. I thank the Chair. I request the Chair to advise me when I have spoken for 15 minutes.

Mr. KYL. Might I inquire how much time exists on both sides?

Mr. KYL

Mr. KYL. Now, the Defense authorization bill is extraordinarily important to our troops. To add a totally extraneous provision amending a different bill to the Defense authorization bill, especially one which carries the suggestion of a Presidential veto, would be the height of irresponsibility on the part of the Senate. The substantive arguments of the Department of Justice with respect to habeas are correct, and the Senate should not, therefore, seek to amend another statute in the Defense authorization bill, thus inviting a veto of the bill. Related to the habeas corpus provision is the amendment that is now pending offered by Senator Graham of South Carolina. That amendment would strike a provision of the Defense authorization bill--section 1023--that also relates to the subject of treatment of detainees. Unfortunately, the way the committee bill was written, the bill that is before us right now, if we retain that language and we don't strike it, as the Graham amendment would do, we would essentially be returning to a law enforcement approach to terrorists that, frankly, failed us before 9/11 and obviously does not work in the post-9/11 context. We can't deal with all of the enemy combatants as criminal defendants. These people who are picked up on the battlefields of Iraq and Afghanistan cannot be dealt with in the same way as criminal defendants in our court system. Senator Graham's amendment would strike these harmful provisions of the bill. I wish to begin by reminding my colleagues of the evil nature of these terrorists and then go through the three particular parts of this provision that require removal. First, a requirement that al-Qaida terrorists held in Iraq and Afghanistan be given lawyers--I mean, just imagine that; second, the authorization to demand discovery and compel testimony from servicemembers; and third, the requirement that al-Qaida and Taliban detainees be provided access to classified evidence. To state these three provisions of the bill is to recognize immediately why it is so harmful that they be included in this bill and why they need to be stricken, but focus for just a moment on the people we are talking about held at Guantanamo Bay and picked up in Iraq and Afghanistan. At least 30 of the detainees released already from Guantanamo Bay have since returned to waging war against the United States and our allies. Of course, the provisions of section 21 are all designed to effectuate the release of some of these prisoners--some of these detainees. So 30 have already been released because we no longer deemed them to be a threat to the United States or our forces, but after their release, 12 of the released detainees have been killed in battle by U.S. forces or--well, by U.S. forces; others have been captured. In other words, we released them, they went right back to the battlefield, 12 of them have been killed in battle, others have been recaptured, 2 released detainees became regional commanders for Taliban forces, and 1 attacked U.S. and allies' soldiers in Afghanistan, killing 3 Afghan soldiers. One released detainee killed an Afghan judge. One released detainee led a terrorist attack on a hotel in Pakistan and a kidnapping raid that resulted in the death of a Chinese civilian, and this former detainee recently told Pakistani journalists that he planned to ``fight America and its allies until the very end.'' Even under the procedures today, which give due process to these detainees and allow them to be released if we can no longer demonstrate they are a threat to U.S. forces--even under these provisions, at least 30 of the detainees have gone right back to the battlefield and are attacking us and our forces. The provisions of section 1023 would make it very difficult, if not impossible, for the United States to detain committed terrorists such as this, people who have been captured while waging war against us. No nation in the history of armed conflict has imposed the kinds of limits this bill would impose on its ability to detain enemy war prisoners. War prisoners released in the middle of an ongoing conflict, such as members of al-Qaida, will return to waging war. That is the whole point of prisoners of war. In the war you capture people and hold them so they cannot return to the battlefield to kill your troops. We have already seen this happen 30 times with the detainees released from Guantanamo, as I said. If section 1023 were to be enacted, we could expect more civilians and Afghans and Iraqis will be killed, and it may be inevitable that even our own soldiers will be killed by such released terrorists. This is a price our Nation should not be forced to bear. I mentioned three specific general problems with section 1023. The first has to do with a requirement of the bill that al-Qaida terrorists who are held in Iraq and Afghanistan must be provided with lawyers. I cannot imagine that the details of this were known to the members of the committee when they put it into the bill. This could never be executed. It would require the release of the detainees; either they get lawyers or they have to be released. And here is why. The Defense bill requires that counsel be provided and trials be conducted for all unlawful enemy combatants held by the United States, including, for example, al-Qaida members captured and detained in Iraq and Afghanistan, if they are held for 2 years. We hold approximately 800 prisoners in Afghanistan and tens of thousands in Iraq. None are lawful combatants; all would arguably be entitled to a lawyer and a trial under this bill. This procedure would at least require a military judge, a prosecutor, and a defense attorney, as well as other legal professionals. This scheme is totally unrealistic. The entire Army JAG Corps only consists of about 1,500 officers, and each is busy with their current duties. Moreover, under the bill, each detainee would be permitted to retain private or volunteer counsel. Our agreements with the Iraqi Government bar the United States from transferring Iraqi detainees out of Iraq. As a result, the bill would require the United States to train, transport, house, and protect potentially thousands, or tens of thousands, of private lawyers in the middle of a war zone during ongoing hostilities. That is impossible. Think about this in the context of other conflicts, not just in Iraq or Afghanistan. In the context of World War II, anybody hearing this would think it is nuts. But the bill before us literally requires us to provide attorneys to these captured detainees in Iraq--tens of thousands of them. This proposal would likely force the United States to release thousands of these enemy combatants in Iraq, as I said, because there is no way you could provide all of the lawyers to them. Obviously, that would further jeopardize our military. By requiring a trial for each detainee, this provision would also require U.S. soldiers to offer statements to criminal investigators, needing later to prove their case after they captured someone. In other words, unlike today, when you are on the battlefield and you capture somebody and you hold them because they are a threat, but you are not putting them on trial, now you are going to put them on trial and you have to have the kind of evidence that would stand up in court. You have watched the TV shows with the clever defense lawyers. You know about, ``I object, Your Honor; that is not relevant,'' or ``that is hearsay.'' On the battlefield, who walks around with lawyers making sure Miranda rights are read and evidence is collected and statements are taken that will hold up in court when they are later tried? And they would need to carry evidence kits and cameras, means of identifying the person later on. Two years after you capture someone, the defense lawyer could say: Is that the person you captured? And if he says, ``Well, those guys all kind of looked alike to me when they were shooting at me, so I cannot be sure,'' well, the case will get thrown out of court. Or was there a chain of custody of the evidence? You would have to do that with the evidence taken on the battlefield or it would be thrown out in court. They would need to spend hours after each trial writing after-action reports, which would need to be reviewed by commanders. Valuable time, in other words, would be taken from combat operations and soldiers' rest whenever they capture somebody on the battlefield. A horrible precedent would be set for the future. Aside from the war in Iraq, this provision would make fighting a major war in the future simply impossible. In World War II, we detained over 2 million enemy prisoners of war. It would have been impossible for the United States to have conducted a trial and provided counsel to 2 million captured enemy combatants. The bottom line, with respect to this provision, section 1023, the requirement of counsel for these detainees held in Iraq and Afghanistan, is that it would be impossible to implement. It is patently absurd and, as a result, it should be stricken. The second point is authorizing al-Qaida detainees to demand discovery and compel testimony from American soldiers. I alluded to that a second ago. The underlying bill would actually authorize unlawful enemy combatants, including al-Qaida detainees in Iraq and Afghanistan, to demand discovery and compel testimony from witnesses, just as we do in our criminal courts in the United States. These witnesses would all be the U.S. soldiers who captured the prisoner. Under the bill, an American soldier could literally be recalled from his unit at the whim of an al-Qaida terrorist in order to be cross-examined by him, or his lawyer, or a judge. Newspaper columnist Stuart Taylor describes the questions such a right would raise: Should a Marine sergeant be pulled out of combat in Afghanistan to testify at a detention hearing about when, where, how, and why he had captured the detainee? What if the northern alliance or some other ally made the capture? Should the military be ordered to deliver high-level al-Qaida prisoners to be cross-examined by other detainees and their lawyers? It goes on and on. The questions abound. As the Supreme Court itself observed in Johnson v. Eisenstrager, which is the law on this subject: It would be difficult to devise a more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil court and divert his efforts and attention from the military offensive abroad to the legal defensive at home. This is the U.S. Supreme Court talking not long after World War II, when a question similar to this arose, and a Justice of the Supreme Court says it ``would be difficult to devise a more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him into account in his own civil court and divert his efforts and attention from the military offensive abroad to the legal defensive at home.'' It would be difficult to conceive of a process that would be more insulting to our soldiers. In addition, many al-Qaida members captured in Afghanistan were captured by special operators whose identities are kept secret for obvious reasons. This would force them to reveal themselves to al-Qaida members and expose themselves, or simply forgo the prosecution of the individual, which is obviously more likely to happen. You simply could not do all of this, so you would have to forgo the prosecution and release the prisoner. Clearly, Americans should not be subject to subpoena by al-Qaida. Think about that. That brings me to the last point--the requirement that al-Qaida and Taliban detainees be provided with access to classified evidence. You would have to give the enemy your classified evidence, the sources and methods of your intelligence operations, in order to prosecute them, which is what would be required by the bill. Here is the exact language. The bill requires that detainees be provided with ``a sufficiently specific substitute of classified evidence'' and that detainees' private lawyers be given access to all relevant classified evidence. When this bill was brought up in the Senate, some Members questioned whether this bill requires us to share classified information with al- Qaida detainees and their lawyers. I will direct this to specific pages and lines of the bill to show what it does. On page 305, lines 16 through 21, the bill expressly provides that ``the detainee'' must be provided--I am quoting now--access to a ``sufficiently specific'' summary of ``the classified evidence that is submitted against the detainee.'' This language appears to mirror the Classified Information Procedures Act rules that apply to the use of classified information in Federal courts. Like CIPA, these procedures give a detainee a right to the substance of classified evidence. The Government might be able to redact some names or other information, but only if it still gives the detainee the substance of the evidence. And if the United States is not willing to compromise the evidence in this way, it cannot use the evidence. Similarly, at page 305, line 5, the bill expressly requires that under its provisions, ``counsel for the detainee is provided access to the relevant classified evidence.'' I don't know how you can be any more specific than that. His lawyer gets to see relevant classified evidence. Foreign and domestic intelligence agencies are already very hesitant to divulge classified evidence to the CSRT hearings we already conduct. These are part of the internal and nonadversarial military process today. Intelligence agencies will inevitably refuse to provide sensitive evidence to detainees and their lawyers. They will not risk compromising such information for the sake of detaining one individual terrorist. In addition, the United States already has tenuous relations with some of the foreign governments, particularly in the Middle East, that have been our best sources of information about groups such as al- Qaida. If we give detainees a legal right to access such information, these foreign governments would simply, I presume, shut off all further supply of information to the United States. Why would they do otherwise? They don't want to expose their own sources, compromise their evidence, or expose even the fact that they have cooperated with the United States. By exposing our cooperation with these governments, the bill perversely applies a sort of ``stop snitching'' policy toward our Middle Eastern allies, which is likely to be as ruthlessly effective as when applied to criminal street gangs to potential witnesses to a crime in the United States. Some of our best information is gained from foreign intelligence services who, like us, are trying to find out everything they can about these terrorists. Once they know we have to turn the information they gave us over to the terrorists, they are going to stop cooperating with us. The argument I presented--that sharing classified evidence with al- Qaida detainees and their lawyers would badly damage America's efforts in the war with al-Qaida--was recently reinforced by several declarations that were recently introduced in the ongoing Bismullah litigation. These declarations were filed by the Director of National Intelligence, the Director of the CIA, and by the Director of the Federal Bureau of Investigation, our three top intelligence agencies. Together, these statements confirm that sharing classified information with detainees and their lawyers would not only inevitably lead to leaks of sensitive information, but that it would violate American intelligence agencies' agreements with foreign governments and with confidential human sources--violations that would inevitably undermine these organizations and individuals' willingness to cooperate with the United States in the future. The final point is that we already know, from hard experience, that providing classified and other sensitive information to al-Qaida members is a bad idea. During the 1995 Federal prosecution in New York of the ``blind sheikh,'' Omar Rahman, prosecutors turned over the names of 200 unindicted coconspirators to the defense. They were required to do so under the civilian criminal justice system of discovery rules, which require that large amounts of evidence be turned over to the defense. The judge warned the defense that the information could only be used to prepare for trial and not for other purposes. Nevertheless, within 10 days of being turned over to the defense, the information found its way to Sudan and into the hands of Osama bin Laden. As the district judge who presided over the case said, ``That list was in downtown Khartoum within 10 days, and bin Laden was aware within 10 days that the Government was on his trail.'' That is what happens when you provide classified information in this context. In another case tried in the civilian criminal justice system, testimony about the use of cell phones tipped off terrorists as to how the Government was monitoring their networks. According to the judge, ``There was a piece of innocuous testimony about the delivery of a battery for a cell phone.'' This testimony alerted terrorists to the Government surveillance and, as a result, their communication network shut down within days and intelligence was lost to the Government forever--intelligence that might have prevented who knows what. This particular section of the bill, 1023, repeats the mistakes of the past. Treating the war with al-Qaida similar to a criminal justice investigation would force the United States to choose between compromising information that could be used to prevent further terrorist attacks on one hand and on the other letting captured terrorists go free. As I said before, this is not a choice our Nation should be required to make. Let me read a couple of the quotations I alluded to earlier from the Director of the Central Intelligence Agency, GEN Michael Hayden, relative to the damage that would be caused by requiring this classified information to be turned over to the defendant or his lawyers: . . . [M]uch of the information that is potentially discoverable was provided to the CIA by foreign intelligence services or discloses the specific assistance provided by the CIA's global partners in the global war on terror. If the CIA is compelled to comply with the Court's decision, the CIA will be obligated to inform its foreign liaison partners that a court order requires that the CIA provide this information to the Court and detainee counsel. There is a high probability that certainly liaison services will decrease their cooperation with the CIA because of the extent that their information has become enmeshed in U.S. legal proceedings. . . . He goes on: [S]ome information discoverable under the Court's decision originated with, or pertains to, clandestine human intelligence sources. These individuals provide information or assistance to the CIA only upon the condition of absolute and lasting secrecy. Revealing this information--even to the Court or to cleared counsel--would expressly violate these agreements, and would irreparably harm the CIA's ability to utilize current sources and to recruit sources in the future. . . . Let me read one other comment from General Hayden, the Director of the CIA: . . . With over 300 detainees at Guantanamo Bay, Cuba, it appears that compliance with the Court's decision will require disclosure to several hundred--perhaps more than one thousand--private attorneys who are not employees of the U.S. Government and who are not trained in handling classified information. With so many untrained individuals allowed access to such sensitive information, I believe that unauthorized disclosures, even if inadvertent, are not only probable, but inevitable. The regulations controlling access to classified information recognize that limiting the number of people with access is a necessary step in safeguarding sensitive information. The Court's decision would eviscerate the U.S. Government's carefully conceived plan to keep its most highly sensitive information compartmentalized and would increase the likelihood of public disclosure. I quote a comment from Robert Mueller, the Director of the Federal Bureau of Investigation, in his affidavit to the court in the case I mentioned: Disseminating human source information could reasonably lead to the disclosure of their identities because often the information provided by human sources is singular in nature. In other words, he is the only person who knows about it, so when the information is divulged, then the other side knows exactly where it came from. Back to Director Mueller: The disclosure of singular information could endanger the life of the source or his/her family or friends, or cause the source to suffer physical or economic harm or ostracism within the community. These consequences, and the inability of the FBI to protect the identities of its human sources, would make it exceptionally more difficult for the FBI and other U.S. intelligence agencies to recruit human sources in the future. These are the kinds of irreparable harm that would result if the language of section 1023 remains in the bill. Not my words, but Director Mueller of the FBI, General Hayden, the Director of the CIA, and now I quote from the Director of National Intelligence, Michael McConnell. Admiral McConnell had this to say: . . . [T]he Intelligence Community has many sources of information that must be protected. For example, much of the information at issue was provided by foreign intelligence services or would reveal the specific assistance provided by foreign partners in the global war on terror. Certain liaison services will likely decrease their cooperation with the U.S. Government if their information is caught up in U.S. court proceedings. One final comment. . . . Human sources also provide the Intelligence Community with critical information, but only upon the condition of absolute secrecy. Revealing this information would violate the sources of confidentiality we provide these sources and would likely result in their minimizing or ceasing altogether their cooperation. Such a disclosure would harm the Intelligence Community's ability to retain current sources and recruit new ones, and if we cannot recruit and retain sources, the Intelligence Community simply cannot conduct its business. That is the point of Senator Graham's amendment to strike these provisions from the bill. They would irreparably harm our intelligence collection capability, which is the first defense against these terrorists. That is why the Graham amendment striking section 1023 should be adopted. We have already bent over backward to provide the detainees at Guantanamo the ability to contest their detention and to have their detention reviewed and eventually even have it reviewed in the U.S. Supreme Court, and before that the Circuit Court of Appeals. This is a very fair system, more fair than has ever been provided by any other nation in any other circumstance and more than our Constitution requires. So we are treating the people we capture in a very fair way. What we cannot do is to take those same kinds of protections and apply them anywhere we capture someone in the foreign theater. And as I said before, never in the history of warfare have they been subjected to the criminal justice system of our country. To take that system and try to transport it to the fields of Afghanistan and Iraq would obviously not only be breaking precedent but is a horrible idea for all the reasons I indicated. I ask my colleagues to give careful attention to the dangerous return to the pre-9/11 notion that these terrorists are, after all, only common criminals and we have to treat them that way. They have made no secret that they are actually at war with us, and we ignore this point at our peril. I remind my colleagues that the Statement of Administration Policy on this bill says the President will be advised to veto the bill if section 1023 remains in the bill and refer again to a similar statement from the Department of Justice with respect to the habeas corpus provisions that would be added to the bill in the amendment of Senator Leahy. I hope my colleagues will take all of this information into account when they consider voting on these amendments in this very important Defense authorization bill which we need to pass and the President will want to sign so we can do what is necessary to support our troops whom we have sent into harm's way. I urge my colleagues to support the Graham amendment to strike section 1023 and not to support the additional habeas corpus rights to terrorists who attack our troops.

Mr. KYL. I will yield, yes.

Mr. KYL. Mr. President, I thank the chairman and Senator Warner. Let me read a portion of a letter from the Department of Justice first, and I will include it for the Record at the conclusion of its reading. This letter is addressed to Chairman Pat Leahy of the Judiciary Committee. It begins by saying--it is dated June 6 of this year. This letter presents the views of the Department of Justice on S. 185, the ``Habeas Corpus Restoration Act of 2007,'' as introduced in the U.S. Senate. If enacted, S. 185 would remove the habeas corpus restrictions included in the ``Military Commissions Act of 2006.'' After a full and open debate, a bipartisan majority of Congress passed the MCA just last fall. The MCA's restrictions on habeas corpus codified important and constitutional limits on captured enemies' access to our courts. The DC Circuit upheld MCA's habeas restrictions in--the name of the case is Boumediene v. Bush--I will omit the citation--decided in 2007. The provision of S. 185 that seeks to remove these important limits ignores their history and their role in protecting our Nation's security. As the Supreme Court recognized in Johnson v. Eisentrager, a 1950 case, the extension of habeas corpus to alien combatants captured abroad ``would hamper the war effort and bring aid and comfort to the enemy,'' and the Constitution requires no such thing. The United States already provides alien enemy combatants detained at Guantanamo Bay, Cuba, with an unprecedented degree of process, which includes judicial review of decisions regarding their detention before the Federal appeals court in Washington, DC. Repealing the MCA's limitations on habeas would simply burden our courts with duplicative and unnecessary litigation. For this reason, and because repeal of the MCA's habeas provisions would delay and disrupt the vital work of bringing enemy combatants to justice, the President's senior advisors would recommend that he veto S. 185 if the bill is presented to him for signature. There is more of the letter, but I will submit it for the Record at this point. I note that the amendment offered by Senator Leahy is virtually the same, if not the same, as the bill introduced. I am presuming that the President's senior advisers would, as a result, also recommend a veto of the bill if it included this provision.

Mr. KYL. Madam President, that is a great question, and the answer is that there have never been, in the history of the world, habeas rights granted to enemy detainees or prisoners of war in order to challenge the fact of their detention by either the United States or by the other country from which the great writ came--England. They have never been granted. So the answer is there is no precedent whatsoever. That is why, when colleagues say we want to restore habeas rights, that is an incorrect characterization. Enemy combatants and POWs have never had habeas rights to challenge their detention as a matter of being provided by our Constitution. Never has our Constitution been interpreted as requiring those rights. I yield the floor.

Mr. KYL

Mr. KYL. Mr. President, today Senator Rockefeller and I introduce the Medicare Anesthesiology Teaching Funding Restoration Act of 2007. I want to thank Senator Rockefeller for his leadership, as well as Senator Vitter who introduced a similar bill last Congress. As my colleagues may be aware, Arizona is the Nation's fastest growing State, and as its population grows, so does the demand for health care services. Yet Arizona suffers from a critical shortage of health care professionals. Inadequate Medicare reimbursement exacerbates physician shortages and disrupts patient access to care. In fact, each year Medicare shortchanges academic anesthesiology programs nearly $40 million. Currently, a teaching physician may receive the full Medicare fee schedule if he or she is involved in two concurrent cases with residents. In 1994 the Centers for Medicare and Medicaid Services, CMS, singled out anesthesiology teaching programs and implemented a payment change. The payment change required that teaching anesthesiologists receive only 50 percent of the Medicare fee schedule if he or she is involved in two concurrent cases with residents. As a result, 28 academic anesthesiology programs have closed, leaving 129 academic anesthesiology programs in existence today. As one of the remaining teaching programs, the University of Arizona loses over $300,000 each year. This is likely a conservative estimate as private payers are increasingly adopting Medicare's payment policy, compounding a teaching program's total financial loss. Medicare's policy challenges a teaching program's ability to fill vacant faculty positions, retain expert faculty, and train residents, particularly in rural and underserved communities. Additionally, and perhaps most importantly, as training I programs close, patients will increasingly encounter anesthesiologist shortages. In Arizona alone, the Health Resources and Services Administration, HRSA, projects that between 2000 and 2020 the State's population will grow 18 percent and the population 65 and older will grow 72 percent. The Medicare Anesthesiology Teaching Funding Restoration Act of 2007 repeals the 1994 payment change and restores Medicare payment to teaching anesthesiologists. Under this bill, the clear winners are patients. Restoring funding helps preserve patient access to safe, quality health care and alleviate growing health professional shortages. I urge my colleagues to cosponsor this critical legislation.

Mr. KYL

Mr. KYL. Mr. President, I wish to address two topics quickly, and I appreciate the cooperation of the chairman of the Armed Services Committee. I first wish to speak to the President's announcement this morning that he is going to ask the Senate to confirm Judge Michael Mukasey as the new Attorney General for the United States. I had an occasion to meet with Judge Mukasey this morning, and I have been reading throughout the last several months a great deal of what he has written, particularly on matters of national security and intelligence gathering. I find him to be very thoughtful and a highly qualified person for this position. I simply wish to make the point to my colleagues that I am looking forward to this confirmation process, first as a member of the Judiciary Committee and then as a matter before the full body. I think my colleagues will find Judge Mukasey not only highly qualified, being a graduate of Columbia and Yale Law School, but also someone who has an extraordinarily fine reputation on the bench and bar. After practicing law and serving as a U.S. assistant attorney, Judge Mukasey, nominated by President Ronald Reagan, served 18 distinguished years on the Federal bench in New York as chief of the New York division. During that period of time, he acquired a reputation of the highest order, someone who is tough but fair, someone who is highly respected by his peers and the litigants who appeared before him and, as I said, who has presided over some of the most difficult and high- profile cases to come before the bench, particularly in matters dealing with terrorism. I am looking forward to the confirmation process. I note that Members on both sides of the aisle have expressed concern that many of the positions in the Attorney General's Office have been vacant. I believe now there are 9 out of 15 high-level positions in the Department of Justice vacant, including the position of Attorney General. It is clear that we need to get the nominee dealt with as soon as possible. The average time for confirming an Attorney General is 3\1/2\ weeks, and I am hopeful we can use our time wisely to confirm Judge Mukasey within that period of time.

Mr. KYL

Mr. KYL. Mr. President, today Senator Rockefeller and I introduce the Medicare Anesthesiology Teaching Funding Restoration Act of 2007. I want to thank Senator Rockefeller for his leadership, as well as Senator Vitter who introduced a similar bill last Congress. As my colleagues may be aware, Arizona is the Nation's fastest growing State, and as its population grows, so does the demand for health care services. Yet Arizona suffers from a critical shortage of health care professionals. Inadequate Medicare reimbursement exacerbates physician shortages and disrupts patient access to care. In fact, each year Medicare shortchanges academic anesthesiology programs nearly $40 million. Currently, a teaching physician may receive the full Medicare fee schedule if he or she is involved in two concurrent cases with residents. In 1994 the Centers for Medicare and Medicaid Services, CMS, singled out anesthesiology teaching programs and implemented a payment change. The payment change required that teaching anesthesiologists receive only 50 percent of the Medicare fee schedule if he or she is involved in two concurrent cases with residents. As a result, 28 academic anesthesiology programs have closed, leaving 129 academic anesthesiology programs in existence today. As one of the remaining teaching programs, the University of Arizona loses over $300,000 each year. This is likely a conservative estimate as private payers are increasingly adopting Medicare's payment policy, compounding a teaching program's total financial loss. Medicare's policy challenges a teaching program's ability to fill vacant faculty positions, retain expert faculty, and train residents, particularly in rural and underserved communities. Additionally, and perhaps most importantly, as training I programs close, patients will increasingly encounter anesthesiologist shortages. In Arizona alone, the Health Resources and Services Administration, HRSA, projects that between 2000 and 2020 the State's population will grow 18 percent and the population 65 and older will grow 72 percent. The Medicare Anesthesiology Teaching Funding Restoration Act of 2007 repeals the 1994 payment change and restores Medicare payment to teaching anesthesiologists. Under this bill, the clear winners are patients. Restoring funding helps preserve patient access to safe, quality health care and alleviate growing health professional shortages. I urge my colleagues to cosponsor this critical legislation.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that I be allowed to proceed in morning business for 10 minutes.

Mr. KYL. Mr. President, is the body still in morning business?