Jon Kyl

Mr. KYL

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, the other topic I wish to address is the subject of the week, the Defense authorization bill, and especially as it relates to the issue of the current ongoing military activity in Iraq. I wish to briefly respond to a couple of comments that have been said recently, particularly comments by General Petraeus and the remarks the President made to us last week. It seems to me the President said something very important to all of America when he said the success of the surge in Iraq today offers us an opportunity to be united as we have not had for some time. There are people who want us to leave as soon as we can from Iraq. There are people who want us to stay and complete the mission. And what the President said was, regardless of which of these general positions you have supported, there is an opportunity now for us to get together because the reality is that as long as this mission does continue to succeed, we can withdraw more and more troops which, obviously, we would all wish to do. So I hope as time goes on and this surge continues to succeed, we will have the opportunity to continue to withdraw American troops. I also wish to respond to a couple of comments made about the mission in Iraq because there has been some criticism of the mission and a suggestion that we should change the mission. I wish to make a couple of points. First, one thing we do not want to do is change the mission by redefining that mission in the Senate based upon what kind of a mission could get 60 votes in the Senate as opposed to what kind of a mission makes sense militarily on the ground. Yet one of our colleagues has even made that point, saying that the mission should be defined to whatever will get 60 votes. That is the wrong thing to do. The mission should be to secure Iraq, to have a stable country that can be on our side in the war against terror, that has a chance to do what the civilian government there needs to do, and to be secure enough to enable us to withdraw our troops so Iraqi troops can take over. That is the mission. As the security is being established there, the mission can gradually evolve less to providing security, as that is turned over to Iraqi troops, and more to the continuation of the training of Iraqi troops and focusing on the mission of getting al-Qaida. That clearly is our No. 1 goal there. But for those who say we can do that with a severely diminished number of troops, General Petraeus himself commented on that point and said you need the combination of troops that we have there today and in fairly large numbers to perform the counterterrorism mission; that it is not simply something you can say we are going to change the mission to one of counterterrorism only and expect you can perform that with just special operations troops. As he said: To do counterterrorism requires conventional as well as all types of special operations forces, and intelligence, surveillance and reconnaissance assets. If the goal is to take away sanctuary from al-Qaeda, Gen. Petraeus said, ``that is something that is not just done by counterterrorist forces per se but . . . by conventional forces as well.'' The point is, those who talk about redefining the mission should be under no illusion that can be done with a different mix of forces than we have right now. It is one of the reasons we are being successful against al-Qaida because we do have the kind of full conventional forces at our disposal that enables us to succeed in that effort. It will be very dangerous, indeed, for the Senate to define a different mission based on how many votes it could get in the Senate rather than what is necessary on the ground, or, No. 2, to restrict the kind of troops that are available to perform that mission to those that would not succeed. As General Petraeus has pointed out, we need the kind of troops we have there today in order to succeed in the mission we have there. Finally, the whole question of whether we are going to be in Iraq for a long time, there are some who criticize the prospect of a relationship between the Iraqi Government and the United States Government, as the President discussed in his speech. But the reality is, as he pointed out, the Iraqi leaders have asked for that relationship, and it should be one that we actually support. We need to have a good, strong relationship with another country in the Middle East, a country that can be on our side in the war against the terrorists, that refuses to give sanctuary to the terrorists, and can be a buffer against a nuclear-armed Iran, a fastidious Syria, and others in the region, and whose interests are identical to ours. This is one reason why it bothers me not in the least that Iraqi leaders would ask to us have an enduring, ongoing relation even after we have pulled out many of our troops, to the point that we may have troops in Iraq for a long time. We have had troops in Germany now for over 60 years, and we have had troops in Korea for over 50 years. There may be a point in having U.S. troops in the region and even in the country of Iraq. Our hope--and I am sure this is shared by all of us on both sides of the aisle in this body--is that as the troop surge continues to succeed, we can draw down the number of those troops to a point that it is not a strain on the U.S. military and the danger to the troops there is greatly diminished. Clearly, this is the way we seek to resolve our involvement in Iraq. I hope the President's message, that this offers us an opportunity to be united rather than divided, in fact, comes to pass, because not only would that benefit the people of Iraq, it would help sustain our national security interests and help to bring our country together politically over this most difficult issue as well.

Mr. KYL

Mr. KYL. Mr. President, in the 2 months since Hamas took control of Gaza, 40 tons of explosives have been smuggled from Egypt into Gaza. It is estimated that 80 tons have been smuggled in the last 2 years. Rafah, in southern Gaza, has long been a key conduit for smuggling assault rifles, pistols, ammunition, explosive materials, grenade launchers and other munitions. While smuggling has long been a problem along this stretch of the border, the Israeli military has reported a surge in smuggling of anti-aircraft missiles, anti-tank rockets and bomb components when Israel withdrew from Gaza in 2005. There has also been a clear loss of progress made with regard to democracy and the rule of law in Egypt. Prominent members of parliament like Ayman Nour who have criticized the regime have been jailed. Nour was the leading opponent in Egypt's 2005 presidential race and was arrested on dubious charges shortly after that election. According to Human Rights Watch, ``Security forces and police routinely torture and mistreat detainees, particularly during interrogations. Torture in the past was used primarily against political dissidents, but in recent years it has been rife in police stations as well, affecting ordinary citizens.'' Cellphone videos posted on the Internet have shown the police sodomizing a bus driver with a broomstick and hanging a woman by her knees and wrists from a pole for questioning. The United States has provided substantial help to Egypt over the years. For its part, Egypt should do more to control its border with Gaza and improve its record on democracy and the rule of law. To that end, section 699 of H.R. 2764, as passed by the House of Representatives, requires the Secretary of State to certify that the Government of Egypt has taken ``concrete and measurable'' steps to stop the smuggling of arms into Gaza, improve the independence of the judiciary, and improve criminal procedures and due process rights. It conditions $200 million of $1.3 billion of fiscal year 2008 foreign military financing assistance on demonstration of that clear and measurable progress. We note that between the date the House passed H.R. 2764 and final action by the Congress on this legislation, more than 3 months will have passed. Even more time will pass if it becomes necessary for the Senate to take up an omnibus appropriations act this fall. Consequently, there is plenty of time for Egypt to show progress in stopping arms flows to Hamas in Gaza and to reverse recent backsliding in democratic reforms before the U.S. Congress finalizes this legislation. The amendment I offer with Senators Lieberman, Collins and Ensign, and which I am pleased has been accepted unanimously, puts the Senate on the record stating unambiguously that Egypt must take clear and measurable steps to demonstrate progress on both reducing the flow of arms into Gaza as well as to undoing damage done to the rule of law and democracy. As Congress moves toward enactment of this appropriations bill, it is imperative that support to Egypt be based on an evaluation of the performance of the Egyptian government since the initial House action. Congress must consider these results in determining what approach Congress should take regarding Egypt's foreign military financing aid during fiscal year 2008.

Mr. KYL

Mr. KYL. Madam President, I want to speak for a moment about the amendment of the Senator from North Dakota relating to the cross-border trucking demonstration program. That is the long title for the pilot project to allow U.S. trucks to travel into Mexico carrying cargo and to allow a certain number of Mexican trucks, after inspection, to travel into the United States carrying products for delivery here. This program has actually been planned over the past 14 years, but the Senator from North Dakota has an amendment that would deny the entry of Mexican trucks into the United States on the grounds that the trucks participating in this program do not meet the same safety standards as U.S. trucks and, therefore, would be unfit for U.S. roads. If that were true, I would agree. But it is not true. I very much understand the Senate's role in protecting the safety and security of people on our highways, protecting the American public. But in my view, the Dorgan amendment ignores the numerous safety and inspection standards which are set in place by the Department of Transportation under this demonstration program. In fact, the whole point of the demonstration program is to show that a safe regime for cross-border trucking can exist in a way that benefits both Mexico and the United States. First, let me emphasize the minor impact the Mexican trucks will actually have on our U.S. highway system. The Department of Transportation authorized a maximum of 100 Mexican trucking companies to participate in the 1-year demonstration program, the same number of U.S. trucking companies that would be allowed to participate in Mexico. Preliminary information indicates there will be approximately 500 to 600 vehicles involved. According to statistics released by the National Trucking Association, 5.1 million commercial trailers were registered in 2004 for business purposes here in the United States. Clearly, the 500 to 600 Mexican trucks compared to 5.1 million American trucks is a pretty miniscule number compared to our trucking industry as a whole. As I mentioned, proponents of the Dorgan amendment claim that Mexican trucks are too dangerous for U.S. roads. However, Mexican trucking company drivers and vehicles participating in this demonstration program must overcome multiple layers of safety and inspection standards before operating in the United States. Let me describe in detail the mandates the Mexican companies must meet to qualify for this demonstration program. The first layer of safety is an application process whereby any trucking company that wishes to participate in the demonstration program must complete a 38-page application dealing with business activities, cargo content, safety records, safety rules, and other required information. If a Mexican trucking company fails to meet any of those DOT standards, the application is denied. The next layer of safety and inspection standards is a preauthorization safety audit. This measure mandates that U.S. Federal inspectors must conduct a thorough safety audit of each Mexican trucking company business at the carrier's headquarters in Mexico before it is granted authority to operate beyond U.S. border commercial zones. So U.S. inspectors will be at the Mexican trucking company site in Mexico performing this inspection, not only of the vehicles but of the entire operation. That is a major inspection. It seems to me it is a major way that we preliminarily qualify these Mexican companies for operation here. Our inspectors must verify that the Mexican companies are complying with the following U.S. standards: U.S. hours of service regulations, drug and alcohol testing for each driver--these are completed by U.S. labs, by the way--insurance with a U.S. insurance company--so this business of not being insured in the United States is not correct-- adequate driver qualifications, and a vehicle maintenance program. If the company passes the compliance test, then the inspectors conduct a full front-to-back review of each truck, which takes 45 minutes per vehicle, and they interview every driver who will participate in the program. These are U.S. inspectors in Mexico at the company site. They then do a 45-minute inspection of the trucks, and they have to meet the same safety standards as U.S. trucks traveling on our highways. If the company passes the preauthorization safety audit, each truck is then given a safety decal and that decal is only valid for 90 days. So each truck will have to undergo a bumper-to-bumper inspection every 3 months. Each truck is also given a unique decal. Every time the truck crosses the border, Department of Transportation inspectors at the border look for that decal. They verify that the driver is the one the company has certified for that truck, and they check English language proficiency and licensing requirements. They do all of that at the border. Finally, every vehicle and driver participating in the project will be subject to roadside inspections, just as U.S. and Canadian drivers are. If at any point a Mexican truck fails to comply with just one of the safety requirements, the truck and the driver will be placed out of service immediately. The Mexican trucking company will then be subject to disciplinary action. All of these safety and inspection standards ensure that Mexican trucking companies, vehicles, and drivers participating in the demonstration program abide by the same or, in some cases, even stricter safety standards than U.S. and Canadian trucking companies, drivers, and vehicles operating in the United States. Clearly, the Department of Transportation has worked hard to develop safety and inspection standards designed and intended to protect American highways and the public. It is for that reason that we should not support the Dorgan amendment. Remember, this is a pilot project, a demonstration project. To ensure that its results are adequately reported to us and that the Department of Transportation makes no changes without notifying the Congress, Senator Cornyn has offered an amendment that will add those additional precautions. Of course, those are worthwhile and I will support that. The bottom line is, those people who fear that Mexican trucks will not be held to the same safety standards as U.S. trucks in America are incorrect. They will receive the two inspections in Mexico, another inspection at the border, and the potential for an inspection anywhere else on the highways, just as American trucks. Those inspections are performed by U.S. inspectors. It is worth giving this program a chance--a demonstration program only--to see whether it will work. If it turns out it is too much trouble and expense, it doesn't work, the Mexican drivers are not qualified, the trucks don't meet the standards, whatever else, then we can adjust our program. But let's give the demonstration project a chance to also show that maybe our neighbors to the South deem it important enough for their vehicles to travel in the United States for their own commercial purposes that they care about this program and they are going to make it work. If they do, it is much more efficient and much cheaper for American consumers, if those Mexican trucks can travel in the United States, because the alternative is to offload the cargo in Mexico, reload it onto an American vehicle, and then have it come into the United States, a very lengthy, time-consuming, and costly process. The United States has always been a trading nation. It is our history. Americans have benefited throughout the centuries because we have been a trading nation. Our neighbors, Canada and Mexico, like to buy American products. They have things to sell to American consumers. Some of the finest tomatoes we are eating right now come through the port of entry in Nogales, AZ. I see the trucks lined up every time I go down there. They are great products. Because they come in, they are fresher, less expensive, and they can be even more fresh and less expensive if they don't have to offload the cargo and reload it onto American carriers to be transported to final destination. This is a way of demonstrating that we can make our commerce more efficient and less costly and speed products to market, if the Mexicans will do their part and verify that their vehicles are safe on American highways. Why not give them the chance? That is all this demonstration project does. To those who say: We don't think they will meet our standards, this is the time to tell. I think it would be unfair to American consumers if we try to prejudge that and say there is no way it can work so we are not even going to give it a chance. We should give it a chance. Then we can evaluate it. Then we can make our decision. In the meantime, the Department of Transportation inspection demonstration project should go forward. The Dorgan amendment should be defeated. The Cornyn amendment should be adopted. I suggest the absence of a quorum.

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

Mr. KYL

Mr. KYL. In just a few minutes, we are going to start the discussion of the confirmation of Jim Nussle as head of the OMB--the Office of Management and Budget. And since a lot of what he has to work with in terms of budget depends upon decisions we make in the U.S. Congress, I thought it might be a good time to review some of the economic news and information that has been coming out over the course of the last several days and weeks. The majority of this information is very encouraging for our future, and I will go through briefly and explain why it matters. It shows, first of all, that we had 4 percent economic growth in the second quarter of this year. That is phenomenal and well above the historical average. Continuing low unemployment; now it is 4.6 percent. More than 8 million jobs have been created in the course of the last 5 years. And though the stock market has been up and down in recent weeks, it is still growing at better than 7 percent this year, which is very good. In fact, since 2003, the stock market has grown at an average of 12 percent, which is at about the historical average of the stock market. The poverty rate has declined to 12.3 percent. By contrast, for example, under the Clinton administration, it averaged 13.3 percent, so it is 4 percent lower than it was during that time. Clearly, the economic growth that has characterized our economy generally has benefitted many segments of our society. Nearly 70 percent of Americans now own their own homes. That is higher than at any time, for example, during the previous administration. And the average home price has increased by more than 50 percent since 2001, meaning that a home worth $200,000 in 2001 is, on average, worth about $300,000 today. That kind of appreciation for housing has obviously increased the wealth of American homeowners by literally billions of dollars. Those are just some of the numbers, Mr. President, but I think they illustrate a very important point, and that is that success in the economy is not an accident, first of all. We in Washington need to appreciate that we don't create success. That is created by the American people--the entrepreneurs, the people who work hard, and the thousands, millions, literally, of decisions made every day in working through our free market economy. But government can also have a big impact on whether that success exists or not by decisions we make relating to regulatory and tax-and-spend policy. And what we do here, I think one would have to acknowledge, can have a big impact on the decisions that working Americans and investors make in their economic lives. It is now undeniable that one of the key factors in the economic growth that I referred to earlier is the 2001 and 2003 tax relief passed by the Republican Congress and signed by President Bush, and it has been a big boon to the economy. Let me explain what we have done to create the conditions for growth, in other words. We have rewarded work and investment through lower tax rates. We have refused to punish success by taxing the rich even more. We have given small businesses financial incentives to grow and to add jobs to the economy, and we have encouraged investors to move their capital around efficiently so that businesses can get the money they need to grow. We need to continue to encourage hard work, savings, and investment. We need to protect the pocketbooks of working families and the cash registers of the small businesses by protecting them against tax increases. And, frankly, we need to stop wasteful Washington spending because when Washington goes on a spending spree, the next thing that happens is politicians start looking to raise taxes. Now, what are the economic plans of the Democrats by comparison? Are they also aimed at encouraging growth? I would, unfortunately, say, no, I don't think so. Under the budget that was passed, the Democrats will raise taxes by $716 billion. Those new taxes would discourage investment, punish hard work, and block jobs from being created. And repeatedly this year the Democratic Congress has overspent the budget. The war supplemental included billions in agricultural pork projects. The omnibus continuing resolution included billions in extra spending, and the appropriations bills that have passed out of the House of Representatives and are being considered in the Senate are all over the President's budget request. This is going to make Jim Nussle's job a lot more difficult. And how do the tax-and-spend plans of the Democrats help economic growth? The answer is simple: not at all. The fact is, my Democratic colleagues rarely talk about economic growth. They don't claim the $716 billion in new taxes would be a boost to the economy, of course, because it wouldn't. Instead, they advocate new taxes and new spending programs and just assume that economic growth will occur regardless of whether they bust the budget and raise taxes on the American people. It pains me to say it, but I don't think these folks understand why economic growth matters to the average family. Otherwise they wouldn't be proposing this kind of counterproductive policy. Let's look at what would happen if we abandoned the current economic policies that have enabled our economy to grow in the last quarter, as I said, at over a 4 percent clip. If the economy is not expanding, there will be very few new jobs. Most obvious and painful are the job losses. If the economy is contracting, people will be losing their jobs. And there is a multiplier effect. When one worker loses his job, his family and community suffer. All the money he or she has been earning was either being spent or invested. Now, the people relying on those dollars suffer as well. Those who keep their jobs will see very little wage growth, cuts in their benefits, such as health care, longer work hours, for example, more people working multiple jobs and spending even less time with their families. You can see the multiplier effect of this kind of economic loss. And there is a flip side. Without economic growth, there is no expansion of existing business facilities, such as expansions to factories, which would lead to more local jobs. No new businesses. For the most part, you don't see large-scale business startups during economic downturns. And it is not just the potential worker for that company who loses out, it is the supplier and vendor and every business partner who would also have the opportunity to thrive if the conditions were better. And your retirement suffers. Retirement savings don't grow; 401(k)s and pensions and savings accounts remain stagnant and can even lose money. Even your Social Security suffers because government depends on economic growth for increased revenues. With lower Social Security tax receipts, the date when the Social Security trust fund goes bankrupt gets even closer. You can talk about these multiplier effects all day. They are very real. And that is why we have to support policies that strengthen economic growth and assure that American families continue to have opportunity rather than problems. Economic growth drives higher tax revenues to the State and local and Federal Government. The economic growth since the Republican tax cuts went into effect has led to dramatic increases in State and Federal income taxes. Think about it-- we lowered taxes on everyone, but our Federal revenues to the Treasury have increased. That just doesn't happen in times of recession. Just the opposite occurs--there are lower tax revenues. Even at the local level, with schools, for example, and cities--the roads, the police, the libraries, the parks--all of these things depend upon collecting tax revenues. Economic growth is essential at all levels of government. So if you care about good schools, for example, you care about economic growth. Let me talk just one more little bit about the increase in taxes because this is one of the key factors that can inhibit economic growth, and it is one that concerned me most about the budget that was passed by the Democrats. The plan, as I said, is to repeal the 2001 and 2003 tax rate reductions--that tax relief. Every American benefitted from those tax cuts, so this would be a big mistake for two reasons. First of all, everyone received some benefit. Even those who didn't pay taxes received money back from the Federal Government, and we created a new 10-percent bracket for the very lowest bracket of taxpayers so they wouldn't have to pay as much in taxes. So it wasn't just people at the upper economic stratum that benefitted. It was all Americans, including even some who didn't pay taxes. Second, everyone benefitted not just because of the specific relief they got but because the economy grew. It was John F. Kennedy who said, in 1963, in supporting the tax rate cuts that he proposed at that time, that a rising tide lifts all boats. What he meant by that was as economic growth continues, it helps everybody in our society--more jobs created, wages increased, business investment increased, and money put back into the communities. So even if we just passed the tax relief for lower income people, our economy would still be hurt. Our priorities should be about encouraging economic growth and preventing a recession. High taxes and spending send us in exactly the wrong direction. Well, Mr. President, let me conclude with this thought. We still have challenges, obviously. We are fighting a global war against Islamic extremists. It is enormously costly. But that is another reason we need a strong economy, so people have good jobs and our government has the revenue it needs to address that conflict. While overall inflation is extremely low, in certain specific areas, such as gasoline prices, they are too high. So we need to work on creating energy independence and look at the viability of alternative fuels. We face rising health care costs with insurance premiums that continue to rise. This is a big issue, and obviously we are working on it. But Republicans know that Americans don't want radical changes that turn our health care into some kind of Washington-run bureaucratic government program--a one-size-fits-all. We need patient-centered health care in this country. We can debate about these specific solutions to these other problems, but without a vibrant and growing economy producing more and more wealth, any of those things will be difficult to address. We can help solve these problems, but the last thing an American family needs is the economic policies that would result in higher taxes, more spending, and all of the devastating consequences of economic recession.

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

Mr. KYL

Mr. KYL. Mr. President, I rise today to comment on S. 849, the OPEN Government Act. As a result of negotiations between Senators Cornyn, Leahy, and me, we have reached an agreement on an amendment to this bill that addresses my concerns about the legislation while keeping true to the bill's intended purposes. When this bill was marked up in the Senate Judiciary Committee several months ago, I filed a number of amendments intended to address problems with the bill. Senator Leahy asked me at the mark up to withhold offering my amendments in favor of addressing my concerns through negotiations with him and with Senator Cornyn. I agreed to do so, and later submitted a statement of additional views to the committee report for this bill that described the nature of some of my concerns, and that included as an attachment the Justice Department's lengthy Views Letter on this bill. After follow-up meetings with the Justice Department and Office of Management and Budget to elucidate the nature of some of those agencies' concerns and to try to come up with compromise language, negotiations among members of the Senate began. I am pleased to report that those negotiations have proved fruitful. Our negotiations have benefited from extensive assistance from the Justice Department and other parts of the executive branch, as well as from the input of various journalists' organizations. While none of these parties has gotten exactly what it wants, I do believe that we now have a bill that strikes the right balance with regard to FOIA--a bill that will make FOIA work more smoothly and efficiently. Allow me to describe some of the changes that my amendment will make to the underlying bill. Section three of the original bill broadened the definition of media requesters to include anyone who ``intends'' to broadly disseminate information. My concern, which was also expressed by the Justice Department, was that in the age of the internet, anyone can plausibly state that he ``intends'' to broadly disseminate the information that he obtains through FOIA. The media-requester category is important because requesters who receive this status are exempt from search fees. Search fees are one of the principal tools that agencies use to encourage requesters to clarify and sharpen their requests. When someone makes a broad and vague request, the agency will come back with an estimate of the cost of conducting such a search. Often, the individual will then sharpen that request. This saves the agency time and the requester money. According to some FOIA administrators, legitimate media requesters rarely make vague requests. These requesters usually know what they want and they want to get it quickly. But if virtually any requester could be exempted from search fees by claiming that he intends to widely disseminate the information, search fees would no longer serve as a tool for encouraging requesters to focus their requests. Overall, this would waste FOIA resources and slow down processing of all requests. Such a result would not be in anyone's interest. The compromise language included in my amendment clarifies the definition of media requester in a way that protects internet publications and freelance journalists but that still preserves commonsense limits on who can claim to be a journalist. At the suggestion of some media representatives, we have incorporated into the amendment the definition of media requester that was announced by the DC Circuit in National Security Archive v. U.S. Department of Defense. 880 F.2d 1381 (D.C. Cir. 1989). That definition focuses on public interest in the collected information, the use of editorial skill to process that information into news, and the distribution of that news to an audience. It would appear in my view to protect publishers of newsletters and other smaller news sources, as well as, obviously, the types of organizations described in that opinion. On the other hand, given that this construction of the term news media as used in FOIA has been in effect for 17 years, I do not think that anyone can reasonably fear that codifying it will turn the world upside down. I was amused to see that Judge Ginsburg's analysis of the statute's definition of news media relied in part on conflicting legislative statements made by Senators Hatch and Leahy, two members with whom I currently serve on the Senate Judiciary Committee, regarding the meaning of the 1986 amendments to FOIA. By incorporating a judicially crafted definition of news media, I believe that my amendment spares the courts the indignity of being compelled to parse conflicting Senate floor statements in order to divine the meaning of that term. The remainder of my amendment's changes to section 3 codify language that has been adopted by some administrative agencies to clarify who is a media requester. Other than stylistic edits, that agency language has been modified in my amendment only to make express that news-media entities include periodicals that are distributed for free to the public. This will protect the fee status of the numerous free newspapers that have become common in American cities in recent years. The agency language codified here also extends express protection to freelance journalists. Overall, this language should guarantee news-media status for new electronic formats and for anyone who would logically be considered a journalist, even when that journalist's method of news distribution takes on new means and forms. But the language should also prevent gamesmanship by individuals who cannot logically be considered journalists but who are willing to assert that they are journalists in order to avoid paying search fees. The modified bill also makes important changes to section 6 of the bill. The original version of this section eliminated certain important FOIA exemptions as a penalty for an agency's failure to comply with FOIA's 20-day response deadline. I commented at length on this provision of the bill at the beginning of my additional views to the committee report for the bill. This provision was far and away the most problematic provision of the original bill and I am relieved that Senators Leahy and Cornyn have agreed to abandon this approach to deadline enforcement. My amendment adopts a modified version of an approach to deadline enforcement that was suggested by Senators Cornyn and Leahy. Their approach denies search fees to agencies that do not meet FOIA deadlines. I have modified my colleagues' proposal by including an exception allowing an agency to still collect search fees if a delay in processing the request was the result of unusual or exceptional circumstances. These exceptions have been part of FOIA for many years now and have a reasonably well-known meaning. I expect that these exceptions will account for virtually all of the cases where an agency cannot reasonably be expected to process a particular FOIA request within the paragraph (6) time limits. Preserving this type of flexibility is important. A penalty that seriously punishes an agency, which I believe that denying search fees would do, would likely backfire if the penalty did not account for complex or broad requests that cannot reasonably be processed within the FOIA deadlines. If the penalties for not processing a request within the deadlines are harsh and include no exceptions, the agency will process every request within 20 or 30 days. It will simply do a sloppy job. That would not improve the operation of the FOIA and would not be in anyone's interest. The original bill also made FOIA's 20-day clock run from the time when any part of a government agency or department received a FOIA request. Again, the modified bill exempts FOIA requesters from search fees if the 20-day deadline is not met and no unusual or exceptional circumstances are present. These provisions in combination would have created a perverse incentive for a FOIA requester to ignore the addressing instructions on an agency's website and send his request to some distant outpost of an agency or department, in the hope that doing so would prevent the agency from meeting the 20-day deadline and the requester would be exempted from search fees. I would not expect more than a very small portion of FOIA requesters to engage in such gamesmanship. But given the large number of individuals and institutions that make FOIA requests, it is inevitable that some bad apples would abuse the rules if Congress were to create an incentive to do so. My amendment makes the FOIA deadline run only from the time when the appropriate component of an agency receives the request. To address concerns that an agency might unreasonably delay in routing a request to the appropriate component, I have added language providing that the deadline shall begin to run from no later than ten days after some designated FOIA component receives the request. I think that it is reasonable to expect that requesters send their requests to some designated FOIA-receiving component of an agency, and I think that it is reasonable to expect that once a FOIA component of the agency gets the request, it will expeditiously route that request to the appropriate FOIA component. My amendment also changes the bill's standard for awarding attorney's fees to FOIA requesters when litigation is ended short of a judgement or court-approved settlement. The original bill would have entitled a requester to fees whenever an agency voluntarily or unilaterally changed its position and handed over the requested information after litigation had commenced. As I noted in my statement of additional views to the committee report, I am concerned that such a standard would discourage agencies from releasing documents in situations where the agency is fully within its rights to withhold a record--for example, because some clear exception applies--but senior personnel at the agency decide to produce the documents anyway. To impose fees in such a situation would be to adopt a rule of no good deed goes unpunished. It would also likely discourage some disclosures. If an exemption clearly applied to the records in question, the only way that the agency could avoid being assessed fees would be to continue litigating. Also, in my view attorney's fee shifting should only reward litigation that was meritorious. A baseless lawsuit should not be rewarded with attorney's fees. There is enough bad lawyering around already. The government should not be paying litigants for bringing claims that lack legal merit. On the other hand, Senator Cornyn has presented compelling arguments that since the time when the Buckhannon standard was extended to FOIA, some agencies have begun denying clearly meritorious requests and then unilaterally settling the case on the eve of trial to avoid paying attorney's fees. Obviously, such behavior should not be encouraged. Or at the very least, the requester should be compensated for the legal expense of forcing agency compliance with a meritorious request. Senator Cornyn has made a strong case that the current standard denies the public access to important information about the operations of the Federal Government. In the spirit of compromise, and out of deference to Senator Cornyn's arguments and persistence, I have agreed to incorporate language into my amendment that does not fully address my concerns about this part of the bill and that is very generous to FOIA requesters. The language of the amendment entitles a requester to fees unless the court finds that the requester's claims were not substantial. This is a pretty low standard. It would allow the requester to be deemed a prevailing party for fee-assessment purposes even if the government's litigating position was entirely reasonable--or even if the government's arguments were meritorious and the government would have won had the case been litigated to a judgment. Substantiality is a test that is employed in the Federal courts to determine whether a federal claim is adequate to justify retaining jurisdiction over supplemental or other State law claims. It is generally understood to require only that the plaintiff's complaint not be clearly nonmeritorious on its face and not be clearly precluded by controlling precedent. The classic and most-quoted statement of the substantiality standard appears to be that in the Supreme Court's decision in Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933), in which Justice Sutherland explained that a claim may be ``plainly unsubstantial either because obviously without merit, or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.'' The same principle is expressed through different words in Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974), as whether the claim is ``so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a Federal controversy,'' and in Kaz Manufacturing v. Chesebrough-Pond's, Inc., 211 F.Supp. 815, 822 (S.D.N.Y. 1962), as whether ``it cannot be said that the claim is obviously without merit or that its invalidity clearly results from the previous decisions of this court or, where the claim is pretty clearly unfounded.'' One aspect of this test that makes it well-suited to evaluating attorney's fee requests is that the ``insubstantiality'' of a claim is a quality ``which is apparent at the outset.'' Rosado v. Wyman, 397 U.S. 397, 404 (1970). It is a standard that courts should be able to apply without further factual inquiry into the nature of a complaint. It thus addresses one of the Supreme Court's major concerns in the Buckhannon case, that ``a request for attorney's fees should not result in a second major litigation.'' Part of the very definition of the substantiality test is that courts can evaluate the complaint on its pleadings or without resolving factual disputes. A claim is substantial so long as ``it cannot be said that [it] is obviously without merit, or clearly foreclosed by prior Supreme Court decisions, or a matter that should be dismissed on the pleadings alone without the presentation of some evidence.'' Rumbaugh v. Winifrede Railroad Company, 331 F.2d 530, 539-40 (4th Cir. 1964). ``The substantiality of the Federal claim is ordinarily determined on the basis of the pleadings''--on whether ``it appears that the Federal claim is subject to dismissal under F.R.Civ.P. 12(b)(6) or could be disposed of on a motion for summary judgment under F.R.Civ.P. 56.'' Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir. 1976). Other cases articulating these principles are Kavit v. A.L. Stam & Co., 491 F.2d 1176, 1179-80 (2d Cir. 1974) (Friendly, J.); Scholz Homes, Inc. v. Maddox, 379 F.2d 84, 87 (6th Cir. 1967); Smith v. Metropolitan Development Housing Agency, 857 F.Supp. 597, 601 (M.D. Tenn. 1994); In the Matter of Union National Bank & Trust Company of Souderton, Pennsylvania, 298 F.Supp. 422, 424 (E.D. Pa. 1969). I hope that these comments on my understanding of the law in this area are of assistance to courts and litigants who will now be forced to adapt to the application of the substantiality test to FOIA fee shifting. Obviously this transition would be easier had we adopted a test more familiar to this area of the law, but the exigencies of legislative compromise have precluded such an outcome. For some recent and very thorough examples of how a substantiality analysis is actually conducted, courts and litigants should also look to Judge Williams's panel opinion in Decatur Liquors, Inc. v. District of Columbia, 478 F.3d 360, 363-63 (D.C. Cir. 2007), and to the Sixth Circuit's opinion in Wal-Juice Bar, Inc. v. Elliott, 899 F.2d 1502, 1505-07 (6th Cir. 1990). Again, I would have preferred that the Senate select some standard that protects from fee assessments an agency that releases information when the law clearly applied an exemption to the requested information. Agencies will still be protected by the discretionary factors considered in the fee-shifting system, but the lacks-a-reasonable- legal-basis factor is not always controlling and does not create a guaranteed safe harbor. I fear that the standard that we adopt today will lead some agency employees to withhold information that they would otherwise be inclined to release out of concern that unilaterally releasing the information would make the agencies subject to fee assessments. I would also note that the substantiality test would have been unacceptable were this a fee-shifting statute that assessed fees against private parties. If a private party adopts a meritorious position in litigation but then unilaterally settles, the Federal Government could not rightfully force that party to pay attorney's fees. The occasional unfairness of this provision--the fact that it will sometimes require the payment of fees to a party whose litigation position lacked merit--is tolerable only because the only party that will be forced to pay fees under this provision even when that party was in the right is the government. I would also like to emphasize for the legislative record that I had originally proposed formulating this standard as ``provided that the complainant's claim is substantial''--and I would have been equally content with language along the lines of ``unless the complainant's claim is insubstantial.'' The double negative in the amendment was not my proposal and I accept no responsibility for that grammatical infraction. It is only because others have insisted on that formulation and I can perceive no substantive difference between ``not insubstantial'' and ``substantial'' that the double negative appears in my amendment. My amendment also makes one other important change to section 4 of the bill. The original bill allowed a requester to be deemed a prevailing party if the requester obtained relief through ``an administrative action.'' Agency administrative appeals of FOIA decisions do not require lawyers, and FOIA requesters should not be compensated for or encouraged to bring lawyers into these proceedings. An agency appeal simply means that the plaintiff asks the agency to reconsider its denial of a request. Every agency has an appeal procedure in which it assigns the case to another agency employee trained in FOIA who then reevaluates the request. These appeals are most often successful when the plaintiff provides more information about his request. Legal arguments are not appropriate to these appeals. There is no reason to bring attorneys-fee shifting into this stage of FOIA. Thus my amendment eliminates the fee-shifting section's reference to relief obtained through an administrative action.

Mr. KYL

Mr. KYL. Mr. President, as usual, the minority leader has made an extraordinarily important point. Admiral McConnell enjoys the confidence, I am sure, of every one of the Members of this body. When he briefed all of us about the problem, I did not see a dissenting voice in the classified briefing about the fact that we had to quickly do something to solve this problem. I think everyone recognizes that he not only has the expertise but the motivation--only one motivation--to protect the American people. I do not think there is a political bone in his body. As a result, for anybody here in the Congress to play politics with the issue, to not accept the judgment of a man who is so widely respected and so properly motivated in this regard, would not only be a dereliction of duty but would, frankly, set up a potential threat to the United States from which we might not recover. What I might do is just close my remarks and turn the floor over to the minority leader. I also know the Senator from New Mexico wants to make some comments. But perhaps he would allow the leader to make some comments. I just want to make this point. Winston Churchill said after World War II that no war could have been more easily prevented. We all understand what he was talking about. The threat was there. The people who were going to cause the problem--Adolf Hitler, Nazi Germany--were clear in their intentions, but people did not act on the knowledge they had. Mr. President, I submit the same thing is true here. If there is, God forbid, an attack on our homeland, I cannot imagine something that could have been more easily prevented by the kind of change we can make in this body today to ensure that the law that governs this intelligence collection keeps up with the technology. It is up to us to take the good judgment of people such as Admiral McConnell, as the minority leader has said, and move on with this and not allow a situation to develop where we would leave for the month of August not having solved this important problem.

Mr. KYL. Mr. President, I am happy to yield.

Mr. KYL. Mr. President, I want to speak briefly to the issue, which, frankly, is keeping us in session right now, and explain a little bit about what is happening. Everyone in this body understands and agrees that we have an emergency on our hands that deals with our intelligence collection, and we need to address that emergency legislatively. But there is a disagreement on exactly how to do that. We must resolve that disagreement before we leave here. We will be taking a month back in our home States visiting with constituents. When we come back we will be right on the anniversary of 9/11. There are ways that we can prevent another 9/11 by good intelligence collection as to warnings that might tell us what we need to do to prevent such an attack, but we cannot do that the way the law is currently written. Obviously, this debate cannot get into a great deal of detail. But, suffice it to say, when the law relating to intelligence collection was written, it was written with a different kind of technology in mind. Technology has evolved over the years. In fact, it has evolved quite rapidly, and it is a simple fact that today's law does not match today's technology. It does not permit the kind of intelligence collection that we can and should be doing. Without, again, getting into details as to how much collection is being lost, it is fair to say that a significant amount, a significant percentage of intelligence that we could be collecting, we are not collecting, simply because of what is, in effect, an old-fashioned law, a law that can be changed, should be changed. The kind of collection we are talking about is precisely the kind of information we need that can give us warning of an impending attack. I think it is also fair to say, without getting into detail, that at this time we are seeing increasing evidence of efforts on the part of our enemies--I am speaking specifically of groups such as al-Qaida--to find a way to attack the American homeland. Given this increased effort on their part--and I would also suggest capability on their part--given that we know what they intend to do, and given that we know there is a great deal of intelligence out there we are not collecting simply because of an outmoded law, it is incumbent upon us to act and to act now. We cannot leave to go back to our home States for a month without resolving this issue because of the nature of the threat and the fact that an entire month will have elapsed not being able to collect information that we deem vital to be able to give us the kind of warning that we need. Now, there have been negotiations going on, not only in the Intelligence Committee but with leadership and, primarily Admiral McConnell, who is the Director of National Intelligence, who has brought this matter to our attention. But those negotiations have not resulted in an agreement we can pass in the House and the Senate before we leave. Time is running out. We will wait as long as it takes to resolve this problem. Anything less would be a dereliction of our duty. I will just conclude by saying this: Prior to 9/11, Senator Feinstein and I, as the chairman and ranking member of the Terrorism Subcommittee of the Judiciary Committee, predicted there would be a massive kind of attack on the United States by terrorists if we did not make substantial changes in the law, on which we had held hearings. We had put legislation in the hopper, and I urged our colleagues to take action on the legislation. They did not do so. Two days after 9/11, we stood on the floor of the Senate and finally got agreement on some of these elements of legislation, some of which became part of the PATRIOT Act, some of which were part of the Tools to Fight Terrorism Act. Let's do not let that happen again. The warnings are there. We have to be prepared to deal with them. We cannot leave without changing the law to fit the technology that currently exists, and we will not permit this situation to erode to the point where we have to accept something that is not adequate or we have delay in getting the job done before we leave.

Mr. KYL

Mr. KYL. Mr. President, while the Senator from Montana is still on the Senate floor, let me, first of all, thank him for his comments, to which I subscribe. We have a problem throughout the Western United States with forest fires, not easily understood by those who don't experience the kind of hot, dry conditions we do in the summer with our forests. People don't think there are forests in my State of Arizona. There are. In fact, about 5 years ago, we had a fire which burned an area-- and this is big Ponderosa Pine country--burned an area almost the size of the State of Rhode Island. Now, in Arizona and Montana, you can do that. But just think about that if it were in your State. One of the problems is, we have found that the Healthy Forest Act that we passed about 3 years ago, which was designed to limit litigation, has not done as good a job as we had hoped. I think we need to revisit that in addition to providing more funding. I will conclude this point by saying that one of the best summers of my life was spent in the State of Montana in Glacier National Park helping to put out forest fires in that beautiful place. I hope all of us can join together in an appropriate way to advance the cause about which the Senator from Montana was speaking.

Mr. KYL

Mr. KYL. Mr. President, this amendment simply has us do something we have already done. We passed, I believe, unanimously some provisions to help small businesses pay for the minimum wage increase. We all did that. The bill went over to the House of Representatives. You will recall they attached the minimum wage bill to the Iraq supplemental, and they dropped out these tax provisions. This amendment simply reinstates the same tax provisions for small businesses in three areas: leasehold and restaurant depreciation, extending them from the end of this year through 2008; new restaurant construction, a 15-year depreciation period; owner-occupied retail, a 15-year depreciation period--all just through the end of the year 2008. As to the first one, it has to be done this year because it expires at the end of this year. As I said, we adopted this. We checked the record. I think it was by unanimous consent. In any event, I believe it was unanimous. We already passed it. Here is the irony. The underlying bill that the SCHIP bill has been attached to is that minimum wage bill. So to the argument that this is not the right bill, I would say, actually, this is not the right bill for SCHIP, but it is the right bill for this amendment. So I hope we can repeat what we have already done and adopt this small business relief.

Mr. KYL. Mr. President, I move to waive the applicable provisions under the Congressional Budget Act with respect to the amendment, and I ask for the yeas and nays.

Mr. KYL. Mr. President, there is only about 17 minutes before voting starts. I have an amendment I would like to speak to for 4 or 5 minutes. If there is not somebody else who needs that time right now, let me do that. This relates to an amendment that will be, I believe, the last one we vote on in this next tranche that simply reinserts into the code the very minimum wage tax provisions the Senate voted on and approved. It was--if not unanimous, it was a very strong vote in favor of those provisions. Recall that when the minimum wage bill was dealt with in the House, they originally had a bill, but they ended up putting it in the Iraq supplemental appropriation because that was a must-pass bill. So the minimum wage provisions were attached to that bill, and they passed but without all of the Senate-passed tax provisions. The bill we are literally debating tonight came from the House of Representatives and is that tax bill. Now, we have amended it to include the SCHIP provisions, but what we need to do is to use that House shell bill for its original purpose, also, and that is to add back the exact provisions we passed in this body to help small businesses offset the costs of the minimum wage requirements we imposed upon them. They have to do with depreciation for leaseholds, restaurants, and for some retail construction. I will explain what each of them is. Under the leasehold restaurant renovation provision, under current law, leasehold and restaurant improvements and renovations are depreciated over a 15-year period, but that only applies through the end of this year. What we did here in the Senate was to extend that treatment through the end of 2008--very reasonable. New restaurant construction. Current law requires that components of a new restaurant be depreciated over as long as 39 years, if you can believe it. It doesn't make sense to depreciate restaurant renovations over 15 years but new construction over 39. So what the Senate did was to fix this inconsistency and provide for the same appreciation, a 15- year period, and to extend that again through the end of the year 2008. This applies to things such as convenience stores. A direct competitor of a quick-service restaurant can use the 15-year depreciation schedule for all construction, and it is permanent in our Tax Code. If you have a different kind of restaurant, you don't have that same tax treatment. The Senate recognized that inconsistency and put that into the law and extended it until 2008. Finally, an owner-occupied retail. Improvements made to that were depreciated for as long as 39 years. The Senate recognized that owner- occupied retail space is not renovated and maintained as often as leased space. So our minimum wage bill provided a 15-year recovery period for improvements made to owner-occupied retail spaces. We extended that same treatment through the end of the year 2008. My point is those three provisions, which we passed in this body--I think they are all supported by members of the Finance Committee--are not law only because they got dropped in the very bill we are debating today that came over from the House. It is, therefore, the perfect opportunity for us to put them back in. I am sure my friend, the chairman of the committee, will say this is the wrong bill to do it; this is the SCHIP bill. Well, I say we should not have put the SCHIP bill on the tax bill. We should use that tax bill for its original purpose--to have the House have to pass the same tax provisions we passed. We have to deal with these expiring provisions sometime this year. Right now, they expire at the end of this year. We have to do it. We might as well do it in the very bill it was intended to be done on right now. There may be a commitment to do all of these so-called extender provisions sometime before the end of the year. When we come back in September, things are going to get pretty dicey with the issues relating to foreign policy and, ultimately, probably tax bills such as AMT relief. We have the FAA reauthorization and all these other things, with time running out. There is no reason we cannot do it now. I suggest that we do it. All this amendment does is extend the current law provisions for restaurants and leaseholds through the end of 2008--the same thing we would be doing with the usual extender package--and adding the new restaurants construction and owner-occupied retail space to the 15-year depreciation category, as we already did when we passed the minimum wage bill in the Senate. Remember, we have now imposed the minimum wage burden on small businesses, and they are going to expect some relief so they don't have to bear all of the expense of it. They expected that relief. They are not going to get it if we are not able to extend it before the end of this year. This is the place to do it. I hope my colleagues, when they get to this last amendment, No. 2562, relating to depreciation for retail and restaurants and construction, will recall that they have already supported this once before. We have this commitment to our small business constituency, and I think this is the perfect vehicle for us to ensure that that relief actually gets to them and that they, therefore, can take advantage of it beyond the end of this current year.

Mr. KYL. I ask for the yeas and nays.

Mr. KYL. Well, I was there.

Mr. KYL. Thirty seconds ago.

Mr. KYL. Mr. President, I appreciate the courtesy. Because we have been held in the Judiciary Committee until now, I was not able to debate my amendment. Given the fact there are not many people on the floor, I would want my 2 minutes when there are people on the floor. For that reason, if we could set it at one of the later votes, I would appreciate it.

Mr. KYL. Mr. President, my amendment says that the program is implemented as long as no more than 20 percent of the beneficiaries are crowded out of private insurance; in other words, no more than 20 percent of the beneficiaries already have private insurance. Here is the problem: The Congressional Budget Office says that between 25 and 50 percent of the people who are going to be covered under this program already have private insurance. What is worse, every one of the newly eligible is already insured. In other words, CBO says 100 percent of the newly eligible, the people we are adding to this program, already have insurance. Now why should the American taxpayer have to pay for people who already have insurance? Surely, in response to the argument of the other side that it is as efficient as we can get, we can be more efficient than 100 percent inefficient. My amendment says that when we get it down to only 20 percent inefficiency, then the program takes effect; in other words, when only 20 percent of the people we are paying for already have insurance.

Mr. KYL

Mr. KYL. Mr. President, I know the majority leader is going to be coming here shortly to conclude today's activities. Prior to that, let me comment a little bit on an amendment that has been offered on my behalf by Senator Grassley, amendment No. 2537. It is an amendment which deals with the so-called crowd-out effect of the Finance Committee bill. The crowd-out effect has to do with the people who are covered by private insurance today who would be crowded out of private insurance and going onto the SCHIP program, the Government program under the bill. The problem is that under the bill, all of the newly eligible people under the program are replaced literally one for one from private insurance to the Government program. In other words, a child or a family who is on private insurance today, for every one of those children or families who is on private insurance, when the Government program is expanded, they will leave the private insurance market. It is a one-for-one transfer. We should not be offering more Government benefits for insurance to cover children or anyone else when the effect of that is for every new person covered to have somebody leaving the private insurance market. The object here is to cover people with insurance, to allow them to have access to good care through insurance. We do not solve any problem at all when we take somebody who already has insurance and bring them into a new program. The CBO estimates that between 25 percent and 50 percent of all the eligible SCHIP recipients are crowded out of the private insurance market. In other words, for every 100 people on private insurance today, between 25 and 50 of them will leave private insurance to go to the SCHIP program as it is expanded. As I said, for the newly eligible, it is a one-for-one transfer. Why is that a good idea? This amendment which I have offered says that if the effect is more than 20 percent in the crowd-out, that is to say that through this program, more than 20 percent of the people who are covered leave private insurance to be covered by this new program, then it does not go into effect. But it does go into effect if the so-called crowd-out effect is less than 20 percent. For the life of me, I don't know why we would spend an additional $35 billion to replace people who are already covered. That does not represent a sound and efficient use of taxpayer dollars. Let me make it clear that I support the reauthorization of SCHIP. I have supported the Republican alternative. But I believe the Finance Committee bill represents not just a reauthorization but an expansion of the program which, as the chairman himself acknowledged, is another step toward universal coverage. We do not need to be taking people off private insurance to enroll them into this program. The problem, and I will be very brief, is that the people who are added are people generally of higher income, and we are adding a group of adults as well. Those are people who generally are more covered by insurance today. So it is logical that, as CBO says, for every one person who is covered today, one person leaves that coverage to go to the SCHIP program under the committee bill. It is estimated that there will be about 600,000 in this category. In fact, CBO shows that a one-for-one replacement means that for 600,000 newly insured individuals, 600,000 individuals go off their private coverage. As I said, that simply makes no sense. It seems to me what we should be doing instead is providing coverage for people who do not have private insurance coverage. That would be a much better use of taxpayer dollars. To conclude the point, there are two reasons why this is happening that are not problems with the alternative, the Republican alternative that was voted on that failed. But they are problems with the Finance Committee bill. The first one is that the Finance Committee bill allows States to enroll children from higher income families, the very ones who have greater insurance coverage today. We have already talked about the New Jersey experience, for example, and the New York experience, in that regard--people at 350 percent to 400 percent of the poverty level, between $60,000 and $80,000 in income for a family of four. Those people, by and large, are already covered by insurance. Not only is there no reason to provide them SCHIP coverage, but we are simply crowding people out of the private sector into this program. If my colleagues want to avoid the crowding-out effect, it seems to me we should be focusing on the truly needy, the low-income children, not children from higher income families. Second, the Finance Committee bill allows States with existing waivers to continue enrolling parents. CBO stated: No studies have estimated the extent to which SCHIP reduces private coverage among parents so the available estimates probably underestimate the total reduction in private coverage. According to CBO's own numbers, this is a big problem. It seems to me we should be focused on solving that problem rather than simply adding to the problem as the Finance Committee does. If we are serious about minimizing the erosion of private coverage, then we should direct SCHIP funds to low-income children and not add adults; as the Budget Committee chairman said not too long ago, there is no ``A'' in SCHIP. Otherwise, CBO estimates that over 2 million individuals will go off private coverage under the Finance Committee bill. Let me state that again: 2 million individuals who currently have private insurance will go off that private insurance onto this new program or onto the program that is added to by the Finance Committee bill. Why would we do that? It doesn't make sense. My amendment will be dealt with tomorrow. We will have a chance to further debate it and, as I said, all it provides essentially is if more than 20 percent of the people who are enrolled come from the private insurance sector already, then the program would be in abeyance until that number is reduced below 20 percent. I also note there were several articles recently written that I think describe the general problem as well as this specific problem. There are three in particular I would like to have printed in the Record at the conclusion of my remarks. I will ask unanimous consent that the following pieces be printed in the Record. One is a piece by John Goodman called ``Insurance Folly,'' in the Wall Street Journal; another is a Wall Street Journal opinion in the ``Review & Outlook'' section, dated July 30, called ``The Newest Entitlement,'' and third is a column in my hometown newspaper, the Arizona Republic, an editorial, August 1, by Bob Robb, which I think correctly notes the problem I have discussed and issues with the Finance Committee bill. I ask unanimous consent these three published items be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, a premature withdrawal would have severe consequences, all of which would pose severe risks. Clearly, we should allow General Petraeus's plan time to succeed. Finally, Mr. President, as I noted previously, by setting the aside the Defense authorization bill because he lost a vote to withdraw our troops, the Majority Leader left important business for our military undone. Recently, the Senate passed parts of the bill--a pay raise and ``wounded warriors'' provisions--but more needs to be done. For instance, the Defense authorization bill should be the vehicle for setting our national security priorities, one of which is how we should deal with antisatellite weapons the Chinese could use against us. I, therefore, ask unanimous consent that an article on China's space weapons that appeared in the July 23 Wall Street Journal be inserted into the Record.

Mr. KYL. Mr. President, I wanted to insert this article in the Record because it provides an objective description of the Petraeus plan and how it came to be. The goals of the strategy are ``ambitious,'' as the article notes, but that is all the more reason to support the plan and not undermine it in the Senate. Those who have criticized the surge at this early stage have offered few options for dealing with the aftermath. One option is to follow the recommendation of the Baker-Hamilton Commission. At this point, I request unanimous consent to print in the Record a column by Steven Biddle that appeared in the July 11 Washington Post.

Mr. KYL. Mr. Biddle provides a need evaluation of the flaws in the Baker-Hamilton. Among those flaws, as he explains, our combat forces are restraining the intensity of the violence in Iraq, and removing them would cause the violence to rise. This rise in violence would put the safety of Americans who remain to train Iraqis in even greater jeopardy. Of course, prematurely withdrawing our troops would have many other consequences. Indeed, a sobering assessment of the risks of withdrawal is too often missing from debates about the U.S. mission in Iraq. In this regard, I ask unanimous consent that an article from the July 17 Washington Post be printed in the Record.

Mr. KYL. Mr. President, during the recent debate of the Defense authorization bill, we saw attempt after attempt to declare the new strategy, General Petraeus' strategy, in Iraq a failure. The other side of the aisle wanted to declare that the strategy, which had been in full force only a couple of weeks, had failed and direct the President to begin withdrawing troops from Iraq, which is today the central front in the war against terrorists. Indeed, after the other side lost a vote to withdraw the troops, the majority leader pulled the bill from the floor, thus leaving important business for our military unfinished. The Democratic majority's insistence that the General Petraeus' strategy has failed makes it easy to overlook what the strategy has accomplished and what the strategy seeks to accomplish. In that regard, I ask unanimous consent to have an article by Michael Gordon from New York Times of July 24 printed in the Record.