Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I understand there has been an informal agreement that I would have up to 15 minutes, and Senator Feinstein would then have 30 minutes. I would like to propound this as a unanimous consent agreement and also add that Senator Allard speak after that; that if there is time remaining from the time Senator Allard and I have of the 30 minutes, that be reserved for any other Republican Senator who may wish to speak.

Mr. KYL

Mr. KYL. Mr. President, I wish to address a subject that I hope we will be able to address soon and that is an amendment that Senator Graham of South Carolina has filed and, hopefully, we will debate soon. It relates to conditions that have been placed in the underlying bill, relating to the treatment of detainees captured in Afghanistan and Iraq. I urge my colleagues to think very carefully about the damage that would be brought on the global war against terrorists and future wars that we may have to fight if we go forward with the language that is in the bill, specifically in section 1023 of the bill. That essentially would return us to a law enforcement approach to terrorists that, frankly, failed us before 9/11 and, once Osama bin Laden and others declared war on us, would obviously not work in the post-9/11 context. Senator Graham's amendment strikes these harmful provisions in the bill and would replace them with commonsense measures to provide a more fair process in dealing with detainees at Guantanamo. I remind my colleagues for a moment about the nature of these terrorists whom we are talking about, and then I will go through specific provisions of the bill that need to be removed--specifically three: a requirement that al-Qaida terrorists held in Iraq and Afghanistan be given lawyers; the authorization to demands discovery and compel testimony from servicemembers; and the requirement that al-Qaida and Taliban detainees be provided access to classified evidence. To review the nature of the detainees that we are holding, not just at Guantanamo Bay but also in Iraq and Afghanistan, these are not nice people. At least 30 of the detainees released from Guantanamo Bay have since returned to waging war against the United States and our allies; 12 of these released detainees have been killed in battle by U.S. forces and others have been recaptured; two released detainees became regional commanders for Taliban forces; one released detainee attacked U.S. and allied soldiers in Afghanistan, killing three 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 he planned to ``fight America and its allies until the very end.'' The provisions of section 1023 would make it very difficult, if not impossible, for the United States to detain these committed terrorists who have been captured while waging war against us. No nation has, in the history of armed conflict, imposed the kinds of limits that the 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. We have already seen this happen 30 times with detainees released from Guantanamo Bay. If section 1023 of the bill is enacted into law, we could expect that number to increase sharply. If section 1023 is enacted, we should expect that more civilians and Afghans and Iraqi soldiers will be killed, and it may be inevitable that our own soldiers will be injured or killed by such released terrorists. This is a price our Nation should not be forced to bear. Let me talk first about the requirement in the bill that al-Qaida terrorists held in Iraq and Afghanistan must be provided with lawyers. This cannot be executed. It would require the release of detainees. 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 of them are lawful combatants and all would arguably be entitled to a trial and a lawyer under the bill. Such a provision would at least require a military judge, a prosecutor, and a defense attorney, as well as other legal professionals. That scheme is not realistic. The entire Army JAG Corps only consists of approximately 1,500 officers, and each is busy with their current duties. Moreover, under the bill, each detainee would be permitted to retain a 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 and transport and house and protect potentially thousands, or even tens of thousands, of private lawyers in the middle of a war zone during ongoing hostilities. That is impossible. That proposal is half baked at best. It would likely force the United States to release thousands of enemy combatants in Iraq, giving them the ability to resume waging war against the United States. Obviously, this would tie up 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. They would need to carry some kind of evidence kits or combat cameras or some other method of preserving the evidence and to establish its chain of custody. They would need to spend hours after each trial writing afteraction reports, which would need to be reviewed by commanders. Valuable time would be taken away from combat operations and soldiers' rest. It would be a bad precedent for the future. Aside from the war in Iraq, this provision would make fighting a major war in the future simply impossible. Consider this: During World War II, the United States detained over 2 million enemy war prisoners. It would have been impossible for the United States to have conducted a trial and provided counsel to 2 million captured enemy combatants. So the bottom line is that the bill, as written, would likely be impossible to implement in Iraq and, in the context of past wars, it is patently absurd. The second point is authorizing al-Qaida detainees to demand discovery and compel testimony from American soldiers. The underlying bill would actually authorize unlawful enemy combatants, including al- Qaida detained in Iraq and Afghanistan, to demand discovery and could compel testimony from witnesses as we do in our criminal courts in the United States. The witnesses would be the U.S. soldiers who captured the prisoner. Under this 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 a judge or that terrorist. Newspaper columnist Stewart Taylor describes the questions that 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? The questions abound. As the Supreme Court 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. That is what the U.S. Supreme Court said in World War II when a similar issue was raised. It would be difficult to conceive of a process that would be more insulting to our soldiers. In addition, many al-Qaida members who were 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, therefore exposing themselves or to simply forgo the prosecution of the individual, which is more likely what would happen. Clearly, Americans should not be subject to subpoena by al-Qaida. That brings me to the last point--the requirement that al-Qaida and Taliban detainees be provided with access to classified evidence. 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. Foreign and domestic intelligence agencies are already very hesitant to divulge classified evidence to the CSRT hearings we currently 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 an 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 intelligence about al-Qaida. If we give detainees a legal right to access such information, these foreign governments may simply shut off all further supply of information to the United States. These governments will not want to compromise their evidence or expose the fact that they 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 effective as when applied to criminal street gangs in the United States. A final point on this: 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. The prosecutors 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. U.S. District Judge Michael Mukasey, who presided over the case, explained, ``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 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 bill--this particular section of the bill 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 future terrorist attacks and letting captured terrorists go free. This is not a choice that our Nation should be required to make. I will talk more about some provisions that Senator Graham would like to substitute for these provisions that provide a more fair process for detainees held at Guantanamo Bay--a process that would enable them to have greater benefit of the use of counsel and of evidence in their CSRT hearings. I will wait until he actually offers that amendment to get into detail. But the point is, we have bent over backward to provide the detainees at Guantanamo the ability to contest their detention and to have that detention reviewed and eventually have it reviewed in U.S. courts. That is a very fair system, more fair than has ever been provided by any other nation under similar circumstances and more than the Constitution requires. So we are treating the people we captured and are holding at Guantanamo in a very fair way. What we cannot do is take those same kinds of protections and apply them to anybody we capture in a foreign theater who is held in a foreign theater and therefore is not, under current circumstances--and never has been in the history of warfare--subject to the criminal justice system of our country. To take that system and try to transport it to the fields of Afghanistan or Iraq would obviously be not only a breaking of historical precedent but a very bad idea for all of the reasons I just indicated. I ask my colleagues to give very careful consideration to the dangerous return to the pre-9/11 notion of terrorism as a law enforcement problem that is inherent in section 1023 of the bill. The terrorists have made no secret that they are actually at war with us, and we ignore this point at our peril. I conclude by reminding my colleagues that the Statement of Administration Policy on this bill indicates that the President would be advised to veto it if these provisions remained. Therefore, I urge my colleagues, when the opportunity is presented, to join me in striking the provisions of the bill, not only as representing good policy but to help us ensure that at the end of the day, there will be a bill signed by the President called the Defense authorization bill.

Mr. KYL

Mr. KYL. Yes, Mr. President, unfortunately, under that circumstance, I object.

Mr. KYL

Mr. KYL. Mr. President, this amendment was drafted to provide money for the capture or information leading to the capture of Osama bin Laden. Senator Sununu and others looked at that and said: Wait a minute, this is a war. It may well occur that we cannot just capture him, he may have to be killed. So we added the words ``or death'' to the amendment by a second-degree amendment. That was adopted this morning. Next week, we are going to get right back to the argument about criminalization versus war. There is in the bill--and we are going to have to strike the language with an amendment--language that requires us to send lawyers over to Iraq and Afghanistan to represent these terrorists we capture on the battlefield. We would have to give them legal representation in theater, and we would have to show them classified information that may be used in their prosecution or continued detention. Mr. President, I have said that is nuts. I hate to use that kind of a phrase on the Senate floor, but I don't think it represents good policy. We are going to have to strike that language from the bill. That is criminalization of the war. This is a war against evil people who will kill us if they can. The sooner we recognize that fact and deal with them, the sooner we will defeat the enemy, and the enemy will no longer represent a threat to us. We cannot assume they don't really mean it. We cannot assume we can negotiate with them. We cannot treat them as if they are defendants in an American criminal trial. They are evil terrorists who deserve to be dealt with on the battlefield, as we have dealt with, historically, all of our enemies. So I hope that next week we can turn from some of the amendments that have been used here to primarily undercut the strategy in dealing with the Iraq war and debate some key provisions of the Defense authorization bill, which do need our attention--I have a couple of amendments I hope we can deal with--and that we can also strike from the bill the provision that would allow a new theory of criminal law to intrude into the battlefield to deal with the POWs or detainees there as if they are criminal defendants in an American court rather than the POWs or enemy detainees that, in fact, they are. I hope at the conclusion of the debate next week we will have continued to defeat these amendments that undercut our efforts in Iraq, continued to support the mission of the troops, and thereby the troops, and strengthened the Defense authorization bill so that for the next year we will have a bill that strongly supports the troops and provides for the national security of the United States of America.

Mr. KYL. The reason I want to put this article in the Record is that it very clearly points out the problem with the strategy of many of the Democrats that I have just outlined, including the notion that somehow you could reduce our forces by perhaps half or more and still achieve this goal of defeating al-Qaida and training up the Iraqi units. One of Biddle's key points is that the only way you can successfully train up these Iraqi units is having relative stability in the country, that if you have an out-of-control war going on, you have to be fighting that war, and it is very difficult to at the same time be training up these forces. The best way to train the Iraqi military is to work in conjunction with U.S. units, as General Petraeus has devised, go into an area, clear it, and then leave primarily Iraqi units behind to continue to maintain control in the area. But if you have constant fighting and you haven't been able to clear or hold the area, those Iraqi troops never have that opportunity or the experience of holding the area. So, as Mr. Biddle points out, you can't have it both ways. This compromise may satisfy some political requirements back home, but it is totally unworkable in the place where it matters, and that is in Iraq. You can't withdraw half or more of the troops quickly and have any chance of success in maintaining peace and stability and in helping to train up the Iraqi forces. So why are people in the Senate focused on bringing the troops home or otherwise micromanaging the way the President deploys the units to achieve the mission's objectives? Well, it is either one of two things. Now, from outside this body, I know there are a lot of people who have a motive of trying to make the President look bad and undercutting his authority and undermining the strategy he is following, I gather both for partisan reasons and because they just don't think it can work. But within the body, here in the Chamber, I know my colleagues do not want any American life to have been lost in vain and that they treasure every life that has been put on the line. That is why it is troublesome to me to have to defeat amendments which have as their core point undercutting the President's authority, micromanaging the war from the Congress, and specifically calling for early withdrawal, and by early I mean before the surge has even had an opportunity to play out. In that regard, I would like to place in the Record a piece that was carried this morning in the Washington Post by Charles Krauthammer, and I ask unanimous consent that it be printed in the Record.

Mr. KYL. Mr. President, what Charles Krauthammer, who is a very knowledgeable analyst and writer on this subject, has said is that the Petraeus plan has the makings of a successful strategy, it has already begun to show some positive results, and that it would be folly to declare it a failure before it even has a chance to play out. Everybody knows General Petraeus is going to report back to the Congress and to the President in September of this year, and he will be accompanied by Ambassador Crocker, our Ambassador to Iraq, who will give us a report on the status of the situation. Now, it has never been contemplated that that is the end of the matter by any stretch of the imagination since it will have only been a few months since the strategy will have been in place, but at least he can give us an idea of how it is working. Why anybody would want to set a different course now, before he gives that report, is beyond me and certainly beyond Charles Krauthammer. Krauthammer points out that this new strategy has already begun to show success. For example, in the Anbar Province, which was an area that was almost exclusively controlled by al-Qaida--let me digress for just a moment to make this point. We heard discussions several months ago about a civil war in Iraq. It is true, there were elements of Sunni and Shiite Iraqis who were fighting each other, and some were calling that a civil war. But two things are important to know about that. The first is that much of that fighting was instigated by al-Qaida. Al-Qaida had come into the Sunni areas and had a declared intention to start a fight between the Shiites and the Sunnis. When the fight didn't materialize, al-Qaida went to Samarra, a holy place for Shiites, and blew up one of their most revered shrines, the Golden Mosque. In fact, it has been twice attacked, thus, in effect, poking the nose of the bear to the point that the bear had to react, and the Shiites did react. They said: If the Iraqi Army cannot protect our holy sites, by golly, we will--or whatever the Iraqi phrase is--and they created militias that began attacking Sunnis, and we did have a lot of Shiite on Sunni and vice versa violence. But the first point is it was largely instigated by al-Qaida, who knew precisely what it was doing and had a declared strategy to begin that fight. We have the intelligence to demonstrate that. The second point is that al-Qaida, since that violence has to some extent now subsided because of the surge--we have gone into these Shiite neighborhoods, for example, and we have persuaded the Shiite leadership to stop the militias from acting, stop the violence, and calm the neighborhoods down so that life can return to normal, and in at least half of Baghdad that has now been what is occurring. In the Sunni areas, we went to the tribal leaders there and said: Look, al-Qaida is causing you more problems than it is solving. Eventually, these tribal leaders came back to our troops and to the Iraqi leadership and said: You are right. We have now seen what life under al-Qaida would be like as a Taliban kind of rule, where they don't let us do anything; they impose this very harsh penalty on anybody who isn't conforming to their way of life. Most of the al-Qaida are coming into Iraq from other countries. They are foreigners to the Iraqis, and many of these tribal sheiks, almost all of them in the Anbar Province, said: We are tired of dealing with these al-Qaida terrorists, and we want to join you in fighting them. By the hundreds and thousands, young Iraqis began joining the police and army to fight al-Qaida. And Anbar Province now, as Charles Krauthammer details in his article and as our intelligence has also made very clear, has become one of the strongest anti-al-Qaida areas in the country. It has largely been pacified. It is a good example of how this new strategy can work. What Krauthammer says is: We don't know yet if this same strategy will work in the next Sunni-Shiite areas, but we can see how it has worked and how it could work if we allow time for the Petraeus plan to play out. He points out that a month ago, Petraeus was asked whether we could still win in Iraq. I am going to quote here: The General, who had recently attended two memorial services for soldiers lost under his command, replied that if he thought he could not succeed, he would not be risking the life of a single soldier. That is a very important concept for us to remember back here because when people talk about supporting the troops, it seems to me the first type of support we should be providing is the moral support for these soldiers, to support their mission, not only to provide everything they need in terms of material support and training but to assure them they are not risking their lives in vain, that we will continue to support the mission we have sent them on that they think they can win and believe they are winning. The worst thing we could do is to have expressions here in the Senate that we think they have lost or that they can't win, and therefore we want to begin declaring defeat and leaving the battlefield. At that point, as it was back in Vietnam, it becomes a question of who is the last man out and who is the last person to risk death, for what? For a timetable? That cannot be why we send young men and women into combat, into harm's way. For those who believe it is already lost or that it is a failure and that we cannot succeed, I say to them, you have an obligation, then, to try to bring them home immediately because not 1 more day should pass for people to risk life for nothing more than a timetable. I don't happen to believe that. General Petraeus doesn't happen to believe that. I believe we can allow the Petraeus plan to have the time it needs to show that it can succeed, not just in Anbar Province but in other places in Iraq as well. Let me quote another couple of sentences from Krauthammer's article: Just this week Petraeus said that the one thing he needs more than anything else is time. To cut off Petraeus's plan just as it is beginning-- Krauthammer says-- the last surge troops arrived only last month--on the assumption that we cannot succeed is to declare Petraeus either deluded or dishonorable. Well, he is clearly not deluded or dishonorable. I regret that some of my colleagues believe the only way to resolve the situation in Iraq is to begin leaving now. That would be a strategy for failure. I ask my colleagues this: We have in this body made pronouncements that we need to help people in places such as Darfur where there is genocide occurring, and we have always tried to help people, whether it be in Kosovo or Afghanistan or--and incidentally, isn't it interesting that in two of those places, we are talking about largely Muslim countries, and in places such as Somalia, also a predominance of Muslims--we cannot as a nation ignore what would happen in Iraq were we to leave prematurely. Almost all of the intelligence in the Baker- Hamilton report which is cited by many of my colleagues confirms this as well, acknowledges that if we leave Iraq before the Iraqis can maintain peace and stability, the kind of genocide and killing and terrorism that would ensue would be almost incalculable. Thousands, if not hundreds of thousands and more, would die. Many believe that blood would be on our hands if we are the ones who walk out before they have the ability to prevent that kind of violence. Al-Qaida clearly is the primary enemy now. As I talked about before, the largely Shiite-Sunni violence has subsided to a significant degree, and most of what is occurring against our forces and against other Iraqis today is being perpetrated by al-Qaida--Al-Qaida in Iraq. If we leave and al-Qaida in Iraq is allowed basically a free hand, most predict that it will have created a situation where, like it did in Afghanistan, al-Qaida will have the ability to train, to plan attacks, and to have refuge from any kind of action to stop them from doing so. They would also have access to the oil wealth of the country of Iraq and to the other resources of the country. To the extent that anybody in Iraq has tried to be a friend of the United States or cooperate with the Iraqi Government--all of those people, remember, with the purple thumbs--would be targeted by the thugs and terrorists who would reign in Iraq. They would undoubtedly be executed. Think of Saddam Hussein's regime. Think back when the North Vietnamese came sweeping into South Vietnam and all of the boat people fled and those who didn't get away were sent to the ``reeducation camps'' or killed. Think of Cambodia, when we left there with 3 million Cambodians killed. Were we to leave Iraq, hundreds of thousands, if not millions, of people will die--largely innocent people. That blood will be on our hands. Mr. President, that is not the worst of it. The U.S. security will have been significantly jeopardized because we will have ceded the central battle in the war against the terrorists to the terrorists. We will have been defeated by the terrorists, much more than their sneak attack on September 11 defeated us. It killed 3,000 Americans. It was, like Pearl Harbor, the attack that awoke the ``sleeping giant'' to finally recognize that after having been attacked, I believe, six times previously by al-Qaida, we finally realized we are in a war with those people. Whether we want to fight or not, they are going to attack us, and we better fight back. We began to do that. I fear that there is a tiredness beginning to seep into some around the world--and even among some Americans--in fighting this enemy that is very elusive and generally doesn't fight us on the battlefield but, rather, waits and waits and, as soon as we relax, engages in a sneak attack. They have tried to do it against our allies. They have done it in Great Britain and in Spain, for example. Other activities have been thwarted. We have been fortunate because our homeland security has thwarted those attacks here at home. We are not always going to have a battlefield on which to confront them. What confuses me is the argument of some of my colleagues that we should cede the one place where they have directly confronted us on the battlefield in Iraq--cede that battle to the enemy by prematurely withdrawing our troops and somehow reconfiguring our effort to fight them in a different way at a different place. The argument that, if we leave Iraq, we can focus on them in Afghanistan is a false choice. We are fighting them in both places. If we need more elements of support in Afghanistan, then we should send them there. That is supposed to be a NATO exercise, and a lot of our NATO friends could be doing more there to help us. I think we could use more help there. It is a false argument to say we should not fight them in both places, when the enemy has finally come out onto the battlefield and is confronting us in the one area where we can defeat them with the U.S. military. Nobody can beat our military, the best military in the world and that has ever existed. Al-Qaida is no match for our military. When they are willing to basically come out of their holes and confront us in Iraq, for us not to directly attack, kill, or capture as many of them as possible would be the ultimate in negligence and fecklessness in fighting the war against terrorists. They are the terrorists; they are there. We are able to kill them there. Why we would not engage the enemy in the place where there are the most of them is beyond me. Now, what that means is that we are putting our young men and women in harm's way. They have volunteered for this mission in which they believe deeply because they have looked into the eye of the enemy and have seen the evil that is there, and they have been willing to lay their lives on the line. Given that fact, and given the fact that we have a brilliant commander with a strategy that appears to be working, why would the United States Congress pull the rug out from under the operation of General Petraeus and our troops when they have their hands around the neck of the enemy and can deal a very severe blow to this evil enemy? That is beyond my comprehension. It takes nothing from the argument that we should be engaged in intelligence operations around the world, that we should be trying our best to get Osama bin Laden, and their argument suggests that somehow we are not. That denigrates the efforts of our special forces and others who, believe me, are trying their very best to get this guy and the other leadership of al- Qaida. But to somehow suggest that we should leave Iraq because the enemy exists in other places is not only totally illogical but, as I said, would be a very feckless approach in trying to win this war against the terrorists. Another thing that bothers me relates directly to the bill we are debating. We are going to see it next week, and we saw it this morning. It is the notion that has begun to creep into the discussion that maybe this is not really a war at all. One of the candidates for President called this just a bumper sticker. Well, their effort to make this a criminal enterprise--in other words, to criminalize the war rather than treat it as the war that it is--is very troublesome to me. This morning, we had an amendment that was drafted to provide that instead of a $25 million reward to get Osama bin Laden, it upped it to $50 million for the capture or information leading to the capture of Osama bin Laden. Mr. President, I was not aware there was a limit on time.

Mr. KYL. Mr. President, I rise to speak for a while on the pending business before the Senate this past week and next week, which is the Defense authorization bill. Now, constituents, people who have been watching the proceedings of the Senate for the last week, might be a little confused because if they know a little bit about how the Senate has historically done its business, they know the Defense authorization bill is the bill we adopt each year to set the policies and the spending priorities for the Defense Department to ensure our national security will remain strong for the next year. However, this year, instead of talking about the acquisition of equipment we need, the new aegis cruisers we are going to be sending around the world--deploying to ensure we have a missile defense that is not only on land but on the seas--instead of talking about the space test bed--a research project that enables us, among other things, to find out how to deal with antisatellite weapons that the Chinese, for example, might use to destroy our satellites--or instead of talking about the need to increase the number of our military--primarily, our soldiers and marines--by about 90,000, so we have a more robust military to have boots on the ground anywhere in the world--instead of debating these various issues about our military posture, we have spent almost the entire week focused on what, the argument about the Iraq war. Now, it is perfectly appropriate to debate issues relative to the war against terrorists. Certainly, the main battlefield in that war against terrorists today is Iraq. But it seems to me our focus is a little off when, instead of looking at the things we could do to make the United States more secure--by focusing on this Defense authorization bill and the specific elements of it--we are, instead, focusing on arguments about how quickly to withdraw from Iraq. We have in place a new strategy in Iraq. At the end of last year, after the election, when Secretary Rumsfeld left his position as Secretary of Defense, the President said: All right, I believe we have not had a successful strategy, and we are going to have a new strategy. That strategy was announced in January, sometimes called the surge. But what it involved was a combination of involving Iraqis more in the defense and securing of their country and the application of a very focused U.S. force of increased strength in specific areas of the country, not just to take those areas but to hold them once they were taken. In the past, we would move into an area, we would clear it of the enemy, and then, after a few days, we would leave. What happened? The enemy would filter right back into the same areas, sometimes establishing an even stronger presence than they had before. That, obviously, did not work, and the President realized it. Everybody in the country said: The election results show you need to have a new strategy. So the President, working with the Iraqis, working with General Petraeus--David Petraeus was confirmed unanimously by the Senate to go over and develop and execute a new strategy. Working with them, the President devised this new strategy of taking and holding the key areas of Iraq so peace and stability could be brought to that war- torn country. The opportunity for the Government then to grab hold of the situation and do the things it needs to do would be given full effect. That strategy counted on five new brigades of U.S. forces, consisting of over 25,000 on-the-ground servicemen, going in to join with about twice as many Iraqi Army and police units to effectuate this strategy of clearing and holding and maintaining control that I mentioned before. That strategy, finally, about 2 weeks ago, has been put in full force, with the arrival of the last of the five brigades. They have gone into both Anbar Province, which is almost a third of the country of Iraq, largely controlled by--it is called a Sunni area, and largely controlled by tribal leaders--and into Baghdad, which is, obviously, the primary population center of the country, where a lot of the previous Shiite and Sunni conflict was occurring. What have we seen in the debate over the Defense authorization bill? We have seen attempt after attempt after attempt from the other side of the aisle to declare the war lost, the strategy a failure, and, therefore, a commitment by the Senate to direct the President to begin bringing the troops home. Next Tuesday--I believe it is Tuesday--we will actually vote on an amendment that has as its specific directive a mandate that we begin bringing the troops home within a very specific time--I believe it is 120 days now--and that withdrawal be complete within roughly a year-- again, I have forgotten the exact date--clearly, predicated on the notion that we have either lost or cannot win, that there is no point in allowing this new strategy to play out to see whether it can succeed, and to tell the entire world we are leaving Iraq. Now, they put a little pink ribbon around it and said: Oh, we will leave some forces over the horizon so we can ride to the rescue if anything bad happens--as if there is not a clear common understanding that a lot bad will, of course, happen or the need to maintain some presence to help train Iraqi troops. I ask unanimous consent to have printed in the Record an article by Stephen Biddle dated July 11 that was carried in the Washington Post.

Mr. KYL. Mr. President, I ask unanimous consent to speak for 5 more minutes.

Mr. KYL. I wasn't aware that Senator Brownback was here. I ask unanimous consent to speak for another 3 minutes.

Mr. KYL

Mr. KYL. Mr. President, let me say two things about this amendment. First of all, I hope all of my colleagues will support it because it has been amended in a very important way, which I will discuss in a moment. But the first thing I want to say is, it is a false choice to suggest we should either be fighting in Iraq or going after Osama bin Laden. We need to be fighting al-Qaida wherever they are, and we are doing that, in Iraq and in the hills of Pakistan and Afghanistan and other places where these terrorists might be hiding, to the very best of our ability. We cannot leave Iraq to al-Qaida in order to go after Osama bin Laden. To rewrite history here, to somehow suggest we have stopped trying to get Osama bin Laden is, I suggest, a willful misrepresentation of what our special forces are attempting to do. I agree with the senior Senator from Virginia that this is a very difficult and complicated matter in dealing with the Government of Pakistan and other issues that make it very hard to know precisely where Osama bin Laden is and to be able to kill or capture him. That relates to the second point. When this amendment was drafted, there was a glaring problem with it. It increases the reward from $25 million to $50 million, but the way it was originally written, it was written for information ``leading to the capture'' of Osama bin Laden. We looked at the amendment and, in astonishment, sought to find the rest of the phrase that you usually see there, ``the capture or death,'' but it was not there. I wondered: Is this yet another step in the effort of the majority party to make this a criminal effort rather than to acknowledge that this is a war against a sworn enemy of the United States? In a war, you capture the enemy when you can. When you cannot, if it is necessary to kill the enemy, you do. All of this brave talk about getting Osama bin Laden and criticism of the administration because we have not gotten him seems to me a little bit hollow if the only way we are going to get him is to capture him. Well, sure, it would be great to capture him, but we may have to kill him; therefore, the amendment which omitted the potential for killing Osama bin Laden was amended by Senator Sununu, who offered a second- degree amendment to raise the reward from $25 million to $50 million for the capture or death or information leading to the capture or death of Osama bin Laden. It is under those circumstances that I strongly support the amendment, as amended. But I ask my colleagues on the other side--next week, we are going to have some other discussion about language which would criminalize this war rather than allowing it to be fought as the war it is against sworn enemies of the United States. Are we going to continue this trend where we treat it as a matter of criminal law rather than a war? I hope not because the other side does not treat it that way. So having amended the amendment to include ``the capture or death'' of Osama bin Laden, I am very happy to support it.

Mr. KYL

Mr. KYL. I appreciate the comments of my colleague. Let me reiterate, it seems to me if one is outraged, and if one believes the war should end now, before another life is lost, instead of arguing about how many months there are between troop deployments and making that the attempted argument here, that you ought to get right to the bottom line and decide to cut off the money for the war. I have a different point of view. Of course, I am not going to vote for that amendment because I believe that General Petraeus, having been unanimously confirmed, has an opportunity and basically the right to expect our support in carrying out the mission which we have sent him to achieve and which we have sent all these soldiers and marines and others to achieve as well. We undercut that mission by cutting it short, by cutting off our support. It is not a matter of giving it more time. The last brigade of the five brigades that were brought in on the surge just got into theater. This surge has just gotten underway in its full form and General Petraeus has said he is going to come back in September and give us a report on how he thinks it is going. Obviously, it will be an interim report. One couldn't expect necessarily that all the results could be achieved in the short period of time between now and September. But, nonetheless, that will be a time when he can come back and give us a report. I suggest we ought to at least wait until we receive that report before concluding that all is lost and that we have to bring the troops home and that that is the best way to support them. They don't believe that. I have spoken to the troops in Iraq. They believe they are winning and that they can win. Early reports from this surge suggest they are right. I am not going to prejudge it, however. All I ask of my colleagues is that they not prejudge it either, that they not come in here with a defeatist attitude and say all is lost, it can't work, we should bring everybody home, and it doesn't matter whether General Petraeus has just gotten started, it doesn't matter that we have confirmed him unanimously and that we have sent him into harm's way to accomplish this mission. None of that matters. Our political judgment is all that matters and we ought to begin a withdrawal. That is fundamentally wrong, and I am glad my colleagues will defeat these amendments which would have the effect of undercutting our mission and, as I said, the mission and morale of our troops. I wished to speak briefly to the amendment of Senator Lieberman, who has been a stalwart and steadfast beacon of truth--truth that needs to be spoken to the kind of threats this country faces, especially with respect to the overall terrorist threat, both as it emanates from terrorist groups and also as it is supported by state sponsors of this terrorism. That is what his amendment goes to. It goes to the state sponsorship of terrorism by the state of Iran. It is an excellent amendment which needs to be adopted by this body, in my view. As he has noted, Iran has a long history of supporting terrorism and it continues to develop a nuclear capability. It is actively undermining our efforts in Iraq. It is responsible for the death of Americans, and it needs to be confronted. Senator Lieberman's amendment documents many of Iran's dangerous actions in Iraq and it directs, in its conclusion, a regular report to Congress to better inform us and the American people of the destructive and intolerable role of Iran. We need this information to help formulate our policies as well as to mobilize public opinion to support them. Let me discuss a few of the items that are in his proposal and why it needs to be supported by this body. We know that Iran has become the primary ideological, financial, and logistical supporter of terrorists seeking to attack the West and one of the major financial supporters. We know because the U.S. Department of State has listed Iran as a state sponsor of terrorism. It is one of only five countries in the world to be so designated. The State Department's most recent report stated: ``Iran remains the most significant state sponsor of terrorism.'' This is not in doubt. It provides significant financial backing to terrorist groups such as Hezbollah, Hamas, and Islamic Jihad in an organized effort to undermine the Israeli-Palestinian peace as well as our efforts throughout the Middle East. It is trying to undermine moderate regimes throughout the Middle East, to establish itself as the dominant regional power--this, by the way, being considered a matter of great concern by other nations in the region. It wants to reshape the region in its own ideological image. Iranian-sponsored terrorism has caused the death of Americans, for example, in the 1996 Khobar Towers bombing in Saudi Arabia, where 19 U.S. servicemembers were killed. It provided assistance to al-Qaida. According to the 9/11 Commission report, in late 1991 and 1992, discussion in Sudan between al-Qaida and Iranian operatives led to an informal agreement to cooperate and provide support, even if only training for actions carried out primarily against Israel and the United States. Not long afterward, senior al-Qaida operatives and trainers traveled to Iran to receive training in explosives. Iran has continued its relations with al-Qaida. At least eight of the 9/11 hijackers traveled through Iran between October of 2000 and February of 2001. Its aggressive sponsorship of terrorism is a vital national security threat to the United States. Let me mention its nuclear capability. It continues to defy the international community by developing its nuclear capability. Nuclear weapons in the hands of the most significant state sponsor of terrorism is a risk to the United States, and we have to do everything we can to prevent that. The most recent evidence includes the apparent construction of a new tunnel complex near one of Iran's major nuclear sites. A former United Nations weapons inspector, David Albright, noted Iran built a tunnel complex near the Isfahan uranium conversion plant in order to protect a range of nuclear-related equipment and that Iran may be construct a similar facility near Natanz, fearing that the underground halls at Natanz are vulnerable to destruction by military attack. I support the administration's commitment to pursuing a diplomatic solution to this danger, but although the United Nations has imposed sanctions on Iran, nothing has come of this. If Iran continues to develop its nuclear capability, obviously we maintain the right to take appropriate action, and I therefore will continue to support efforts to marginalize this threat that Iran poses to the West and to the United States. Finally, let me make a comment about the undermining of our efforts in Iraq. This is the most immediate threat from Iran, and it is a significant focus of the amendment of Senator Lieberman. The most recent Country Reports on Terrorism from the State Department states: Iran . . . continues to threaten its neighbors and destabilize Iraq by providing weapons, training, advice and funding to select Iraqi Shia militants. Then-Ambassador to Iraq Khalilzad stated last year: We can say with certainty that they support groups that are attacking coalition troops. These groups are using the same ammunition to destroy armored vehicles that the Iranians are supplying to Hezbollah in Lebanon. They provide money to Shiite militias and they train some of the groups. We can't say whether Tehran is supporting al-Qaida but we do know that al-Qaida people come here from Pakistan through Iran. Ansar al-Sunna, a partner organization of Zarqawi's network, has a base in northwest Iran. General Petraeus recently stated: The level of financing, the level of training on Iranian soil, the level of equipping some sophisticated technologies with explosives and so forth, even advice in some cases, has been very, very substantial and very harmful. Iranian interference in Iraq is not the rogue actions of low-level personnel. Here is what General Petraeus recently stated, which I think is critical: We know that it goes as high as Brigadier General Qassem Suleimani, who is the head of . . . the Qods Force . . . of the Iranian Guards Corps. That is quite high level. We believe he works directly for the supreme leader of the country. This support is material and is leading directly to the deaths of American servicemembers. Brigadier General Bergner, spokesman for the Multi-National Force in Iraq, recently stated that the Quds Force operates three camps near Tehran and that: [The] Qods Force, along with Hezbollah instructors, train approximately 20 to 60 Iraqis at a time, sending them back to Iraq organized into these special groups. They are being taught how to use [Explosively Formed Penetrators], mortars, rockets, as well as intelligence, sniper and kidnapping operations. In addition to training, the Qods Force also supplies the special groups with weapons and funding of $750,000 to $3 million U.S. a month. In February, the U.S. military reported that at least 170 deaths of coalition troops could be attributed to weapons with ties to Iran. Iranian actions are killing Americans and undermining our efforts in Iraq. The Congress needs to take this threat seriously and begin to take appropriate actions to deal with it. Senator Lieberman's amendment is an important step in dealing with the threat that Iran is imposing. I urge my colleagues to support the amendment. Mr. President, I ask unanimous consent that an op-ed, written by Senator Lieberman and carried in the Wall Street Journal on July 6, 2007, be printed in the Record.

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

Mr. KYL. Mr. President, I just want to make a couple comments about the pending amendment and the amendment Senator Graham and I have filed in response to it. Our amendment makes clear that the goal of our Armed Forces is to have the kind of time in theater and dwell times that our military has sought to achieve and that are sought to be achieved by the amendment but that it is a goal rather than an absolute fixed requirement that becomes the policy of the U.S. military determined by congressional action. The reason for that is twofold. By mandating a certain policy for deployment time or dwell time, the Congress is engaged in the most explicit micromanaging of what is obviously a function for the Commander in Chief and military commanders to perform. The deployments of troops are clearly Commander in Chief obligations and responsibilities. This is not something Members of Congress are knowledgeable about or would have the ability to dictate in any responsible fashion. As a result, for us to adopt a mandatory policy here would be the height of micromanagement. It also, of course, would be unconstitutional. We do have some obligation in this body to recognize that there is a difference between our legislative responsibilities and the executive responsibilities of the President, which include his responsibilities as Commander in Chief. Clearly, the dwell times of troops or units or the amount of time in theater for a unit is clearly an obligation of the Commander in Chief, not something for the Congress to determine. Therefore, secondly, this would represent an unconstitutional action by the U.S. Congress. Why would there be a need for us to take that kind of step, literally throwing the gauntlet down in front of the President, when we could, instead, adopt an amendment such as Senator Graham and I have filed, which recognizes the validity of the goal of the Senator from Nebraska; that is, to have this kind of general dwell time versus Active-Duty time--but does not purport to act, by Congress, in a way that is antithetical to the President's responsibilities as Commander in Chief. There is no reason for us to adopt as a Senate policy something which the military already has as its own goal and which the Congress can express is also, therefore, a goal of the U.S. Congress. This certainly helps to give guidance to the President as Commander in Chief. It expresses our views as to what we deem to be desirable, but it does not hamper the President's operation of the war or infringe on his constitutional authority. So I urge my colleagues to simply reflect for just a moment on the two reasons why I do not believe adopting the Hagel amendment is a wise idea and why we can achieve just as much by adopting the side-by-side amendment Senator Graham and I have filed, which states this policy as a goal, as indeed it is, and it is perfectly appropriate as a goal but does not seek to intrude on the Commander in Chief's authority in this regard.

Mr. KYL. Madam President, the goal here was to try as much as possible to achieve a balance between the time individuals and units are deployed and the time they have for duty or rest back in the States. That goal is the goal of the military today. It did not have to be mandated by the U.S. Congress, which would not only represent micromanagement of the Commander in Chief's responsibilities but could arguably even infringe on his constitutional authorities as Commander in Chief. We can, however, express that as our general sense, that should be the goal of our military, and I believe the amendment Senator Graham and I have, which basically mirrors the language of the Hagel amendment but expresses it as a goal rather than a mandate, will achieve that purpose of expression by this body. Therefore, I urge my colleagues, if they wish to express that sense, to support the amendment.

Mr. KYL. Mr. President, if there is no one else to speak to the amendments that are pending, let me just read one other thing that is relevant to these amendments. We had before us earlier an amendment by the junior Senator from Virginia that, in effect, is the flip side of the amendment of the Senator from Nebraska. The first amendment dealt with the dwell time which necessarily had an effect on deployment time. The Senator from Nebraska focuses on deployment time, which of course would also have an effect on so-called dwell time. So they both generally deal with the same subject but go at it from a different perspective. With regard to the first amendment, and this would also be relevant to the pending amendment, I wanted to quote three things from the Statement of Administration Policy concerning that language. First of all, the Statement of Administration Policy on March 19 reads as follows: It is unwise to codify in law specific deployment and dwell times since this would artificially limit the flexibility of our commanders to conduct operations in the field and infringe on the President's constitutional authority as Commander in Chief to manage the readiness and availability of the Armed Forces. Mr. President, on May 10, the Statement of Administration Policy read as follows: These provisions could unreasonably burden the President's exercise of his constitutional authorities, including his authority as Commander in Chief and his ability to conduct diplomatic, military, and intelligence activities or supervise the executive branch. Then, just by way of example, the Department states that it has managed deployments by using the dwell ratio of individuals as the criteria for deployment. The Department routinely deploys units at less than a 1:1 deployment to dwell ratio if the individuals within a unit meet minimum dwell requirements. The proposed language stipulates minimum periods between deployments for both units and individuals. The requirement to meet both criteria for unit and individuals before deployment could severely limit the options for sourcing rotations. Mr. President, this is another way of saying what I said before, which is that there are reasons at any given time the Commander in Chief, acting through his military commanders, might deploy a certain unit for a certain purpose, and the individuals within that unit may or may not meet the optimal goals. Nevertheless, it is the goal of the military and therefore the Commander in Chief to try to meet these goals as much as possible. What we are saying in the Graham-Kyl amendment is that these should remain the goals of the Commander in Chief and the military, and the Congress is specifically expressing our support for these goals. But for us to actually legislate a specific requirement would not only tie the President's hands and severely restrict his options as this statement verifies, but would also impermissibly intrude on his constitutional authorities. So it is another way of saying what I said before, which is that it is a mistake to adopt the amendment as drafted, but we can achieve the same purpose in expressing our intent by the adoption of the Graham-Kyl amendment.

Mr. KYL. I will in a moment. Since I addressed the Senator's remarks, I will be happy to yield to him. But that support is critical to the success of their mission. They don't think they have lost this war, contrary to some on the other side of the aisle here. They don't think they have lost, and they believe they can succeed in their mission. The kind of defeatist talk I have heard here, unfortunately, it seems to me, leads to the notion that it is a question of which one of them, which one of these brave soldiers or marines or airmen or sailors are going to be the last one to die in a failed cause. That is not the message we should be sending from the Senate. It is not the message the political leaders, who should be supporting these troops, should be sending--not just to the troops and to their families but also to our allies and our enemies. I will be happy to yield.

Mr. KYL. Mr. President, I have listened carefully to the remarks of my colleague, the junior Senator from New Jersey, and among the things he said are that he is outraged that we haven't ended this war. And he said, speaking to the President of the United States: Your ill- conceived war should come to an end before more lives are lost. He concluded by saying: Now is the time, not next month, not next year. Mr. President, while my colleague is still on the Senate floor, it seems to me that we should talk a little bit about what the obligations are of someone who has those feelings. It seems to me that anybody outraged that we haven't ended the war now has an obligation to offer an amendment before this body to do so. When he says now, before more lives are lost, that should suggest the only thing the Senate can do and the House can do is to cut off the funding for the war. But that is a way to end the war, it seems to me, instead of arguing about the amount of deployment time, the time of rest between deployments for our soldiers, if that is the state of the situation, that the Senator believes we ought to be getting right to the bottom line before any more lives are lost and cut off the war. My own view is not as pessimistic, not as defeatist. My own view is that General Petraeus is right; that there is an opportunity for us to succeed in our mission. And when I talk about supporting the troops, and I think about when General Petraeus talks about supporting the troops, the best way to support the troops is to support the troops, meaning to not only provide what they need to succeed in their mission in a material sense but to provide the political and moral support they need to continue their mission.

Mr. KYL

Mr. KYL. Madam President, I thank the chairman of the committee, the Senator from Michigan, for his courtesy. I rise today to discuss the pending business, the National Defense Authorization Act for 2008. There was a lot of work done on this important legislation. I wish to discuss five key areas of the bill--Iraq, our nuclear deterrent, missile defense, space threats, and our approach to the war against terrorists. This bill has fundamental flaws and must be improved, not only so it can pass this body, but so it can be signed by the President and not be vetoed. Remember, this bill does not need to become law, and failure to improve some critical areas of the bill will ensure that it doesn't. To that end, it is important that the Senate have sufficient time to debate the bill. We have already seen a record number of cloture motions filed this year, by my count over 40. And, as I understand it, another has recently been filed dealing with the so-called Webb amendment. This is probably not a good way to consider a bill as significant as the Defense authorization bill. Let me, first of all, address the subject of Iraq, the central front in the global war against terrorists. Many Senators will spend a significant amount of time focusing on Iraq policy, and I welcome the opportunity to do that. Iraq, after all, is the central front in the global war against the terrorists. This is what Osama bin Laden says. This is not my own definition. Our success there is not only important to the people of Iraq, but it is critical to the national security of the United States. I mentioned Osama bin Laden. He once referred to Iraq as the capital of the caliphate. That is the area he would like to establish over which he would rule, and Baghdad would actually be the center part of that new area. He has argued that ``the most serious issue today for the whole world is this third world war that is raging in Iraq.'' Let there be no doubt that al-Qaida and Osama bin Laden are very much present in Iraq and very intent on defeating the United States there. The junior Senator from Virginia has offered an amendment that will codify what the Pentagon, according to the service chiefs and Secretary of Defense, is already attempting to do with so-called dwell time. That policy is for the Commander in Chief to determine, not the Congress. Other Senators will offer other amendments relating to Iraq. Among them are amendments to withdraw our troops or make it harder for the administration to prosecute the war. I look forward to a debate on all of these amendments, but I make two points to my colleagues who might use this bill to attempt to prematurely leave Iraq or undercut our current strategy there. One, we need to give the plan that is being executed by General Petraeus time to succeed. We are already seeing signs of progress in the early stages of the surge, and we need to await his report in September before making judgments about what to do next. Second, advocates of withdrawal need to confront the likely consequences of their proposed policies, none of which, in my opinion, are good. To the first point, the last of the five combat brigades of the surge just became operational a couple weeks ago, June 15. According to the U.S. military spokesman, LTC Chris Garver, This is the first time we'll be able to do the entire strategy as it was designed. So it would be premature, to say the least, to judge the effect of the surge at this point and make important strategic decisions based on that judgment. We are already beginning to see Iraqi forces assuming more responsibility over their security, coalition forces receiving more cooperation from Iraqi civilians, and humanitarian and economic conditions improving. The second point. Advocates of withdrawal have the duty to tell the American people how they propose to grapple with the consequences of their withdrawal. What will you do about the likely ethnic cleansing and genocide against Iraqi citizens who supported coalition forces? GEN Anthony Zinni said: This is no Vietnam or Somalia or those places where you can walk away. If we just pull out, we'll find ourselves back in short order. What would the proponents of these amendments do when Iraq and al- Qaida are emboldened by our retreat, and terrorists enjoy a new safe haven from which to plot attacks against the United States and our allies? Terrorism expert Peter Bergen said this: [A U.S. withdrawal] . . . would fit all too neatly into Osama bin Laden's master narrative about American foreign policy. His theme is that America is a paper tiger that cannot tolerate body bags coming home; to back it up, he cites President Ronald Reagan's 1984 withdrawal of United States troops from Lebanon and President Bill Clinton's decision nearly a decade later to pull troops from Somalia. A unilateral pullout from Iraq would only confirm this analysis of American weakness among his jihadist allies. What would proponents of amendments do if violence in Iraq escalates and draws in neighboring countries? Here is what a recent Brookings Institution study said about that point: Iraq appears to have many of the conditions most conducive to spillover because there is a high degree of foreign ``interest'' in Iraq. Ethnic, tribal, and religious groups within Iraq are equally prevalent in neighboring countries and they share many of the same grievances. Iraq has a history of violence with its neighbors, which has fostered desires for vengeance and fomented constant clashes. Iraq also possesses resources that its neighbors covet--oil being the most obvious, but important religious shrines also figure in the mix. There is a high degree of commerce and communication between Iraq and its neighbors, and its borders are porous. All of this suggests that spillover from an Iraqi civil war would tend toward the most dangerous end of the spillover spectrum. What would the proponents of these amendments say to America's moderate allies in the Muslim world, including Egypt, Saudi Arabia, and Pakistan, who would justifiably question our commitment to them and to the long war in which we find ourselves? And how would the proponents convince them not to begin hedging their bets and cooperate less with the United States, thus further enabling and emboldening the terrorists? Do the proponents of these amendments believe withdrawing our forces will end our war against the terrorists? Do they believe they would not simply follow us home and attack us on our own soil? The Petraeus plan may not offer an easy way forward, but it is the only plan I have heard that does not promise defeat. But as I said, we will have our debates on Iraq policy, as we should. There are other debates about this bill that we should also have. I respect the work that many have done on the bill, but an outside observer, I suggest, might wonder exactly how this bill is going to make us safer. It is supposed to set the national defense policies for the United States, but it is not enough to simply provide funding authorizations. Leaving threats undefended against will not be excused simply because we have spent more money than last year. In fact, some of the biggest flaws in the bill are policy changes, not just funding changes. Let me discuss what some of these flaws are. Our nuclear deterrent, the reliable replacement warhead, our nuclear weapons complex, the language regarding stockpile stewardship and nuclear weapons complex, and, finally, a recommendation regarding the Comprehensive Test-Ban Treaty. First, to the reliable replacement warhead. I am deeply troubled by what appears to be a strategy of slow, inconspicuous disarmament of our strategic deterrent in this bill and the other authorization and spending bills of the new majority in the Senate. The administration's request for development of the first reliable replacement warhead programs was completely eliminated by the House in its appropriations bill, a fate that thankfully was avoided in the Senate subcommittee markup. Yet there is a clear signal sent by this bill which cut the administration's request by $43 million out of a total of $195 million, and which handcuffs the administration from moving beyond all but the earliest phases of development of the warhead. This leaves the U.S. nuclear deterrent absolutely reliant on weapons designed and built in the 1980s. The stockpile stewardship and nuclear weapons complex: Actions taken by the new majority in the House cut approximately $500 million from the upgrade and modernization of facilities in the nuclear weapons complex. These are responsible for refurbishing deployed bombs and warheads, storing older ones, and dismantling those no longer needed. This, obviously, further erodes the reliability of our current stockpile. What signal does this send not only to our enemies but to our allies, allies who for over 60 years have relied on the umbrella of protection of our nuclear deterrent? I mentioned the Comprehensive Test-Ban Treaty. Perhaps the most--it is hard to find the right word--shall I say irregular part of the bill is the language that would attempt to short-circuit what is this body's most serious responsibility: the role of the Senate in treaty ratification. Tucked away near the end of this bill, very much in the fine print, is an unprecedented attempt to preordain the ratification of a treaty-- a treaty already overwhelmingly rejected by this body--the CTBT. Unlike the very reasoned rejection of the CTBT 8 years ago following extensive debate after committee hearings, consideration of intelligence, and the like, this language in the bill presumes to state that the will of the Congress, without the benefit of a single hearing or single committee action of this body, let alone reference to intelligence and debate in the full Senate, is to ratify the treaty. The solemn responsibility of this body to consider treaties cannot be so cavalierly disregarded. How can Senators who were not even in the Senate in 1999 be expected to evaluate the CTBT without the kind of serious consideration that occurred in 1999? This sense of the Senate should be called just what it is--a sham. The whole section of the bill reads as a throwback to the days of the nuclear freeze. Apart from the hortatory verbiage in section 3122, it is clear the bill leaves us without the resources needed to develop a smaller and safer next generation nuclear stockpile and without resources needed to maintain our current stockpile. In a fundamental contradiction, the cuts in the nuclear programs will actually increase the likelihood of needing to return to testing, the very option that would be permanently denied through the ratification of the CTBT. Next, let me turn to missile defense. I am very troubled by what this bill does to undermine the substantial progress made in protecting this country from ballistic missile threats. During the North Korean July 4 demonstration a year ago, which included firing the Taepodong 2 missile with the capability to reach as far as Alaska, the President of the United States had an operational defense missile system on alert for the first time in history. But this bill moves to deny that flexible authority that we have used to simultaneously research, test, and deploy an operational missile defense system in record time. What is more, the bill significantly cuts funding for the construction of a European missile defense site, which will allow better defense against the Iranian threat, improved coverage of the United States, and extension of our missile defense system to provide coverage for Europe. This while we are in the middle of negotiations with Poland and the Czech Republic, while the Russians threaten a new arms race, and while Iran tests the West's resolve. The subject of space threats. One of the most significant failures of this bill is it does nothing to defend the eyes and ears of this country's political, cultural, diplomatic, economic, and military might. Since the Chinese antisatellite, or ASAT, test earlier this year, very little has been done to defend our global constellations. Modest requests from the administration to provide defensive capabilities, such as the space test bed, for which only $10 million was requested, have been zeroed out by both the House and Senate Armed Services Committee. What is more, the bill inflicts significant cuts, some $55 million, to the space tracking and surveillance system, the next generation constellation of satellites that will allow improved tracking and targeting of ASAT weapons and midcourse ballistic missile. Other space programs, for example, space situational awareness, received increases above the administration's request. And I applaud the committee for this, but I remind the Senate that this program only allows us to see a threat approaching our satellite constellation. It does nothing to enable us to defend against the threat. Have we learned nothing from recent experience? Our enemies have proven they know better than to engage our armies and navies directly. They have observed our weaknesses and seek to exploit them through asymmetrical attacks. Blind us, and the best navy in the world can't repel an attack. Who can dispute the fact that the $504 billion that we authorize for the Department of Defense in this bill would be virtually meaningless if we can't defend our satellite systems from attack? Our satellite system is the backbone of our entire national defense. Finally, let me conclude by talking about what this bill does with respect to the terrorists with whom we are engaged in a life-and-death struggle. The bill basically would return us to pre-9/11 days, to the law enforcement approach to terrorists. We should think very carefully about the damage that would be wrought in a global war against these terrorists if we have to fight it by using the ill-conceived proposals in this bill. One would require us to give trials to every detainee we are holding in combat in places such as Iraq and Afghanistan. Another would give them access to classified information; allow them to compel testimony of witnesses, including our own soldiers on the battlefield. Have the authors of these provisions thought about where we will get the military lawyers needed to implement their criminal law ACLU approach to warfare? There are barely enough of them to provide legal services to our own troops. Have they thought about what our intelligence community will say to the foreign allied intelligence agencies, many of which are already concerned about sharing their sources and methods of intelligence with us; and who may very well completely cease sharing important intelligence information, knowing it will be shared with captured terrorist combatants? We know that more than 30 detainees have been released from our custody and have returned to waging war against the United States and its allies. What will the release of potentially thousands of detainees do to our national security? The Senate must give very careful consideration to this dangerous return to the pre-9/11 notion of terrorism as a law enforcement problem. Terrorists have made no secret they are at war against our civilization. We ignore their warnings at our peril, and we will not prevail if we must deal with them as criminal defendants in American courts. Madam President, I conclude by asking my colleagues to carefully consider the impact these several policies I have highlighted will have on our national security. Our first obligation is to provide for the common defense. Unfortunately, as it is presently written, this bill falls well short of that solemn duty, and it could get worse if some of the amendments proposed are adopted. I urge my colleagues to take very seriously our obligation to provide for the common defense. It begins by confining the policies in this bill to the traditional areas of defense preparedness. I hope we will be disciplined enough to do so.

Mr. KYL

Mr. KYL. Mr. President, most of the activity with regard to the terrorist plot in Great Britain occurred while we were on our breaks back home. I wanted to briefly discuss that today. It seems to me that the terror plots in Great Britain must serve as a wake-up call to those of us in the United States who perhaps have been too complacent about the terrorist threat. These plots remind us of the dangers we really face each and every day, and we need to employ all possible intelligence and follow-up action in order to stop the attacks and roll back these terrorist groups. The war against terrorists and on the radical ideologies that drive terrorism will go on and is going to go on for a long time, and attacks will not occur every day. So we have to remain resolute in the face of this long-term threat, never allowing temporary respites from violence to tempt us into thinking the terrorists have stopped recruiting and plotting. Abroad we must confront the challenges not just of terrorist networks but of states like Iran and Syria that provide funds and equipment for the terrorists. At home we have to have adequate intelligence to find, monitor, and disrupt terrorist cells that could strike at any time. It requires vigilance and cooperation among many enforcement entities and, importantly, the support of the American people. Against this threat, to say ``out of sight, out of mind'' can have no place. Now, the first point I would like to make today is that as the plot in Great Britain revealed, this is not about grievances. This is about ideology. There are those at home who are members of what is called the Blame America First crowd, which was a term coined by my friend, the late Ambassador Jeane Kirkpatrick, who say the Islamists hate us because of what we do. They allegedly hate us because we don't do enough to fight poverty, because of the Israeli-Palestinian conflict, because of Iraq, or because of the latest Danish cartoon, or whatever. Of course, this is nonsense. The radical ideology that spawns this terrorism has nothing to do with such grievances or poverty. The perpetrators of the plots in Great Britain were doctors, not individuals radicalized by unemployment or poverty-stricken slums. These plots certainly were not the result of British policy. They unfolded on the very day that Gordon Brown, a critic of Britain's roles in the 2003 invasion of Iraq, took office. Nor did they have anything to do with American policy. From what we know of the individuals involved, it appears the motivation was the same as all of the other acts of terrorism in the name of militant Islam. This radical doctrine had its roots in the early 20th century and gained momentum through the writings of radical Islamists such as Sayyid Qutb in the 1950s and 1960s, long before the Iraq war. It has everything to do with the hatred of our values, our freedoms, all that we stand for, and we see the hatred in attacks that go back several decades. Review them: The 1979 takeover of our Embassy in Tehran; the 1983 Hezbollah bombing of the Marine barracks in Beirut; the 1993 bombing of the World Trade Center; the 1996 bombing of Khobar Towers; the 1998 Embassy bombings in Kenya and Tanzania; the 2000 attack on the USS Cole; September 11, 2001, and all of the attacks since then, including Beslan, Madrid, London, and elsewhere. In every case, the rationale was the same--advancement of the radical ideology of militant Islam; a perversion of the faith, to be sure, but based on their concept of the faith nonetheless. The sheer evil of the acts and the perpetrators shocks our souls, especially because it is allegedly grounded in religion. People trained as doctors--those who are supposed to value and preserve life--were at the center of the plot in Great Britain to destroy innocent life. We in the West, who believe in reason and rationality, have trouble comprehending the mentality of radical Islam and those who subscribe to it. But we need to understand it, to call it what it is, and not too shrink from this honesty because the terrorists and their sympathizers hide behind a great religion. Importantly, we must not seek to rationalize and explain the views and the behavior of our enemies through our values and experiences. Militant Islam seeks not to change our policies but to destroy our very way of life and replace it with a Taliban-like society ruled by Sharia law and its enforcers. Militant Islam has declared war on the West--be very clear about it. It is fundamentally at odds with freedom, with democracy, with the inherent humanity of the individual, with critical thinking, and rational decisionmaking, not to mention all other religious beliefs. While it might be fueled by grievances, it is not caused by the West but, rather, by the very backwardness and ideological rigidity that they would impose on others. The second point is this: We should be clear that militant Islam, though bound together by common ideology, comes in various stripes, including al-Qaida, responsible for 9/11 and which may have inspired the recent terror plots in Great Britain; Iran's radical regime, whose leader promises to ``wipe Israel off the map'' and envisions a ``world without America,'' and which is speeding toward the development of nuclear weapons; the Wahabbism of Saudi Arabia, which is funding radical ideology in mosques and madrassas all over the world, including here at home; groups like the Muslim Brotherhood, which cloaks its radical ideology in a new veneer of tolerance while its activities support terrorist groups like Hamas and many others. But state-sponsored testing of the United States and the West is also in full force. Iran is testing our resolve in Iraq where it is using its Revolutionary Guard and its terrorist client, Hezbollah, to train and arm those who are fighting our soldiers. Iran is testing the resolve of U.S. and NATO forces in Afghanistan where it is providing support to al-Qaida. Syria is testing our resolve in Lebanon, where it is assassinating anti-Syrian officeholders while serving as a conduit for the weapons that are rearming Hezbollah. Hamas is testing our resolve in Gaza where it launched a successful coup against the Palestinian Authority of Mahmoud Abbas. Third, successful American response depends on resolve and support of the American people. We must understand the nature of our enemy and its ideology, confronting them head-on, with full confidence in the rightness of our cause. This is not a matter of moral relativism. We must not allow ourselves to be gagged by faux political correctness. We can say that these terrorists were bound together and motivated by a hateful ideology grounded in their interpretation of Islam without condemning any other Muslims. We must not embrace groups who tell us they stand for peace without renouncing violence in the name of Islam. We must not reward evil with retreat from any of the battlefields where the fight is raging, including Iraq and Afghanistan. And we must be willing to support intelligence and enforcement activities, including incarcerating those who have plotted against or attacked us. As we celebrate the success of protecting our homeland since 9/11 and preventing loss of life from the attempted attacks in Great Britain, let our words and actions prove that we have not forgotten the resolve that we displayed six years ago today, and let us not fall into the temptation of blaming ourselves for the actions of those who, inspired by hatred, have declared war on us. It is not grievances which have spawned this hatred and these attacks but, rather, the hateful ideology of militant Islam. I ask unanimous consent to have printed at this point in the record a New York Post op-ed by Irshad Manji, dated July 9, 2007.

Mr. KYL

Mr. KYL. Mr. President, I rise to introduce The Crime Victims' Rights Rules Act, which would continue the work started in The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act. The bill would make comprehensive procedural changes to the Federal Rules of Criminal Procedure to protect crime victims' rights throughout the federal criminal process, thereby guaranteeing that crime victims' rights will be fully respected in our federal courts. As one of the Senate sponsors of the CVRA, I know that Congress intended the Act to bring dramatic changes to the way that the federal courts treat crime victims. Fortunately, in the two-and-a-half years since that legislation became law, positive strides have been made for crime victims. For example, with funding provided by act, the National Crime Victims Law Institute has been able to support crime victims' legal clinics around the country. I am also encouraged that court decisions have recognized the importance of crime victims' rights in the process. But while progress has been made in implementing the CVRA, at least one important step remains to be taken: The Federal Rules of Criminal Procedure must be comprehensively amended to recognize the rights of crime victims throughout the process. The Federal rules have been described as ``the playbook'' for Federal judges, prosecutors, and defense attorneys. Currently, the Federal rules make virtually no mention of crime victims. If crime victims are to fully integrated into the daily workings of our criminal justice process, then their role in that process must be fully protected in the federal rules. I am encouraged to see that the Federal courts have been taking some modest steps toward protecting crime victims in the Federal rules. Federal district court judge Paul Cassell initiated the process by recommending rule changes to the Advisory Committee on Criminal Rules. His comprehensive set of useful proposals appeared in an excellent law review article published in The Brigham Young University Law Review in 2005. In recent months, the Advisory Committee has adopted a few of his proposals to implement some aspects of the CVRA. These changes are expected to take effect next year. These amendments are positive, but far more remains to be done. The Advisory Committee's six proposed amendments, five changes to existing rules and one new rule, do little more than reiterate limited parts of the statute. Crime victims have been treated unfairly in the Federal criminal justice system for far too long to be left to rely on a handful of minimal protections. To respect crime victims' rights fully in the process, it is necessary to take more decisive and comprehensive action to thoroughly amend the rules. When Congress passed the CVRA in 2004, it promised that crime victims would have rights throughout the criminal justice process. Of particular importance, the CVRA guaranteed that crime victims would have the right to be treated with ``fairness.'' My proposed amendments would add to the Federal rules the changes needed to treat crime victims fairly. These changes to the rules would provide vital protections for crime victims without interfering with the rights of criminal defendants or the need for Federal judges to manage their dockets effectively. One example of the bill's changes is the amendment to Rule 50 to protect the victims' right to a speedy trial. The bill would amend Rule 50 to provide: ``The court shall assure that a victim's right to proceedings free from unreasonable delay is protected. A victim has the right to be heard regarding any motion to continue any proceeding. If the court grants a motion to continue over the objection of a victim, the court shall state its reasons in the record.'' It is hard for me to see how anyone could object to this procedural change. The CVRA promised to crime victims the right ``to proceedings free from unreasonable delay.'' The bill would place that right into the Federal rules. Another example of the kind of change that the bill would make is its amendment of Rule 21 to protect crime victims' rights in transfer decisions. In some situations, federal courts can transfer a criminal case from one district to another. The bill would amend Rule 21 to provide: ``The court shall not transfer any proceeding without giving any victim an opportunity to be heard. The court shall consider the views of the victim in making any transfer decision.'' It is again hard to understand how anyone could object to the requirement that a judge give a crime victim the chance to be heard before a case is transferred to a distant location. For example, the bill would have protected the right of the Oklahoma City bombing victims to present to the trial judge their views on whether the trial should have been transferred out of Oklahoma and, if so, to where. The bill does not mandate any particular substantive result, leaving it to the trial judge to make the ultimate determination about whether to transfer a case. But the bill would change the process by which such decisions are made, ensuring that victims are treated fairly by giving them an opportunity to provide their views to the judge. A further example of the changes in the bill is the amendment to Rule 48 to protect the victim's right to be heard before a case is dismissed. The bill would provide: ``In deciding whether to grant the government's motion to dismiss, the court shall consider the views of any victims.'' With this procedural change, the victim would have the opportunity to present the court any reasons why a case should not be dismissed. This right is implicit in the CVRA's mandate that crime victims be treated with fairness. It is hard to understand how a crime victim is treated with fairness if the court dismisses a case without considering the victim's position on the dismissal. Indeed, the only case to have considered this issue reached exactly this conclusion. As United States v. Heaton explains, When the government files a motion to dismiss criminal charges that involve a specific victim, the only way to protect the victim's right to be treated fairly and with respect for her dignity is to consider the victim's views on the dismissal. It is hard to begin to understand how a victim would be treated with fairness if the court acted precipitously to approve dismissal of a case without even troubling to consider the victim's views. To treat a person with ``fairness'' is generally understood as treating them ''justly'' and ``equitably.'' A victim is not treated justly and equitably if her views are not even before the court. Likewise, to grant the motion without knowing what the victim thought would be a plain affront to the victim's dignity. U.S. v. Heaton, 458 F. Supp. 2d 1271, 1272 (D. Utah 2006). I agree with Heaton that the CVRA requires that crime victims have the opportunity to submit their views to the court on any dismissal. That is why this bill would place this right specifically into the federal criminal rules. One particularly important part of the bill is its change to Rule 17 to protect the confidential and personal records of crime victims. The Advisory Committee itself proposed an amendment to Rule 17 to create specific procedures for subpoenas directed at confidential and private information concerning crime victims. This change was designed to prevent a recurrence of the problems that recently occurred in the Elizabeth Smart kidnapping case in Salt Lake City. My colleagues may remember this case, which involved the abduction of a teenaged girl from her home. Fortunately, she was found a year later and the suspected kidnapper apprehended. In the state criminal proceedings that followed, defense attorneys subpoenaed confidential school and medical records about Elizabeth. Because these subpoenas went directly to Elizabeth's school and hospital, she was never given the opportunity to object to them, and some confidential information was improperly turned over to defense counsel. The Advisory Committee has recognized that this same ``end run'' around the victim could occur under the federal rules. It has therefore adopted a rule requiring notice to crime victims before their personal and confidential information is subpoenaed. But this seeming protection has a catch: a defendant can avoid giving any notice to victim by arguing to a court, in an ex parte proceeding, that exceptional circumstances exist. This kind of ex parte procedure raises serious ethical concerns. In fact, the American Bar Association wrote to the Advisory Committee in February urging it to make certain that crime victims receive notice and an opportunity to be heard before such subpoenas issue. As Robert Johnson, Chair of the ABA's Criminal Justice section explained, the canons of judicial ethics forbid ex parte contacts with judges on substantive matters. Mr. Johnson went on to urge the Advisory Committee to give careful consideration of the ethical violations that might occur from ex parte subpoenas: While the proposed amendment to Rule 17 is intended to protect the interests of crime victims, the ABA urges the Committee to carefully examine the proposal to determine if the proposal regarding Rule 17 would be contrary to the Court's responsibility under Canon 3(B)(7) in allowing ex parte contact on a substantive matter. Even if the Committee decides that it is not a substantive matter, the Committee should consider whether the proposed rule would allow a tactical advantage as a result of the ex parte communication and the judge is required to promptly notify the other party of the substance of the ex parte communication and allow an opportunity to respond. It seems that the Advisory Committee's proposed rule permitting ex parte subpoenas of personal and confidential information of crime victims in some situations might run afoul of these ethical rules. Accordingly, under the bill, crime victims would enjoy an absolute right to notice before such information as psychiatric and medical records could be subpoenaed. This is the standard process that our adversary system of justice uses. The CVRA promised crime victims that they would enjoy ``the right to be treated with fairness and with respect for the victim's dignity and privacy.'' My bill would respect victims' dignity and privacy by giving them a court hearing before any of their confidential records could be turned over to an offender accused of victimizing them. This is not to say that such information will never be disclosed to the defense. A judge will have to make the determination whether disclosure is appropriate. But the judge would make that determination only after hearing from the prosecutor, defense counsel and most important of all the crime victim whose privacy rights are directly affected. One of the most significant parts of the bill is its creation of a new Rule 44.1, which would provide: ``When the interests of justice require, the court may appoint counsel for a victim to assist the victim in exercising their rights as provided by law.'' This important change builds on existing Federal law. Title 28 already permits the court in a criminal case to ``request an attorney to represent any person unable to afford counsel.'' For criminal cases involving child victims, Title 18 U.S.C. section 3509 allows the appointment of a guardian to represent the child's interests. Although the statutes provide these rights, they have yet to be actually implemented so that crime victims can actually take advantage of them. I want to be clear that I am not proposing that all crime victims should have counsel appointed for them. At the same time, though, I would think all could agree that there are situations where a trial court ought, as a matter of discretion, to have the ability to appoint legal counsel for a crime victim. For example, a crime victim might present a novel or complex claim that the courts have not yet considered. Or a crime victim might suffer from physical or mental disabilities as a result of the crime that would make it difficult for the victim to be heard without the help of an advocate. For many years, courts have had the ability to appoint counsel for potential defendants on a discretionary basis. My bill would allow that same, well-recognized power to be used to appoint counsel for crime victims. One last section of the bill deserves special note because it demonstrates the need for Congress to step into the rules process. The bill would amend Rule 32 to guarantee victims the right to speak at sentencing hearings. This is a change from the more limited right that the Advisory Committee has given victims the right ``to be reasonably heard.'' The Advisory Committee's note to this provision seemingly suggests that courts would not have to give all victims the right to speak at sentencing. This more limited right runs counter to the legislative history as to how the CVRA was to operate. While the CVRA gave crime victims the right to be reasonably heard, it was the undisputed legislative intent that victims would have the right to speak. I explained on the Senate floor at the time the act was under consideration that: It is not the intent of the term ``reasonably'' in the phrase ``to be reasonably heard'' to provide any excuse for denying a victim the right to appear in person and directly address the court. Indeed, the very purpose of this section is to allow the victim to appear personally and directly address the court. My colleague Senator Feinstein remarked at that time that my understanding was her ``understanding as well.'' The Advisory Committee's action also contravenes at least two published court decisions on this issue. In United States v. Kenna, Judge Kozinski wrote for the Ninth Circuit that the CVRA's legislative history reveals ``a clear congressional intent to give crime victims the right to speak at proceedings covered by the CVRA.'' And in United States v. Degenhardt, Judge Cassell reached the same conclusion writing for the District of Utah. My bill would provide the right of victims to speak at sentencing hearings. Of course, prosecutors, defense counsel, and defendants have on enjoyed this right. Crime victims, too, deserve the opportunity to speak to the court to ``allocute'' as this right is called and to make sure that the court and the defendant understand the crime's full harm. I will not take the time here to go through all of the other provisions of the bill. But I did want to highlight one important note about the appropriateness of Congress acting to amend the rules to protect crime victims. Congress enacted the CVRA in October 2004. In the almost 3 years since then, I have waited patiently to give the federal courts the first opportunity to review the need for rule changes. At the same time, though, I have made clear my position, as one of the cosponsors of the CVRA, that Congress expected significant reforms in the Federal rules. As I explained to my colleagues at that time, the crime victims' community in this country was looking to the CVRA to serve as a model for the states and a formula for fully protecting crime victims. It was because the CVRA was expected to have such a far-reaching impact that the crime victims' community was willing to defer, at least temporarily, its efforts to pass a constitutional amendment protecting victims' rights. I made this point directly to the advisory committee in a letter I sent to Judge Levi on February 15 of this year. Thus, several months ago, I placed the Advisory Committee on notice that, if it failed to act to fully protect crime victims, Congress might step into the breach. A few weeks ago, Judge Levi replied to my letter, and I greatly appreciate his comments and explanations. In his reply, he acknowledged that many of the proposals were worthy of close attention. He indicated, however, that the Advisory Committee was going to delay action on them for some indefinite period of time. The reasons he gave for the delay were to: 1. gather more information on precisely how the proposals would operate in specific proceedings and what effects they might have, 2. obtain empirical data substantiating the existence and nature of any problem or problems that could be addressed by rule, and 3. provide additional time for courts to acquire experience under the CVRA and to develop case law construing it. Judge Levi also suggested that some of the proposed rule changes would have created, in his view, new ``substantive rights'' for crime victims that went beyond the CVRA. Judge Levi's letter demonstrates why the Rules Enabling Act wisely left the final decision on how to structure rules of evidence and procedure to Congress. The letter refers to the need to ``gather more information'' and ``empirical data'' on crime victims'' issues before proceeding. While some might point out that the Advisory Committee has already had more than 2\1/2\ years to collect such data, I can appreciate the difficulty that a court rules committee can have in assessing the scope of a national problem. Congress, however, is already well-informed on the need for protecting crime victims' rights. Congress adopted the CVRA only after 8 years of legislative efforts and hearings on the Crime Victims Rights Amendment. This record leaves Congress well positioned to recognize the need for prompt and effective action to protect crime victims. The letter also refers to the need for courts to develop case law construing the CVRA. The problem with this approach is that the anticipated case law may never develop. Most crime victims are not trained in the nuances of the law and lack the means to retain legal counsel. Victims are often indigent and are frequently emotionally and physically harmed by the defendant's crime. They are then involuntarily forced into the middle of complicated and unfamiliar legal proceedings. To expect that in these circumstances, crime victims will often be able to undertake the kind of sophisticated and pathbreaking litigation that would be necessary to establish crime victims seems unreasonable. One of the main reasons for the CVRA was to change a legal culture that has been hostile to crime victims. To expect that this legal culture will somehow, on a case-by-case basis, welcome crime victims is unlikely. Indeed, it is ironic that while waiting for case law to ``develop,'' the Advisory Committee refused to add to the Federal rules a provision confirming the existing discretionary right of trial judges to appoint legal counsel for crime victims who need legal assistance on complicated issues. The wait-for-caselaw approach is also troubling because it assumes that Federal court litigation will serve sufficiently to clarify the rights of victims in the Federal system. But the Federal Rules of Criminal Procedure form the template for rules of criminal procedure in states throughout the country. One of the main purposes of the CVRA was to create a model for protecting victims in the criminal justice system. Unless the text of the Federal rules themselves protects crime victims, the states will not have a model they can look to in drafting their own rules to guarantee victims fair treatment. The final reason given for deferring action on rules changes is that the Advisory Committee thought that some of the changes might create new substantive rights better left to Congress. It's a bit of an Alphonse-and-Gaston situation: Congress says ``after you'' to the Advisory Committee, only to have the Advisory Committee say ``after you.'' To avoid an impasse that leaves crime victims unprotected, obviously someone needs to take the lead. That is why I am today introducing The Crime Victims' Rights Rules Act. One last provision in the bill is also worth highlighting. The bill includes a sense of the Congress provision that crime victims ought to be represented on the Advisory Committee on Criminal Rules. This point was called to my attention by Professor Douglas Beloof, a distinguished law professor at the Lewis and Clark College of Law and the Director of the well-regarded National Crime Victims Law Institute. Professor Beloof testified before the Advisory Committee in January. He was surprised to discover at that time that, while the Justice Department, the defense bar, and judges are all represented on the Committee, there is no representative for crime victims. Not only does this leave crime victims organizations without a liaison for bringing information to the attention of the Committee, but, more important, it deprives the Committee of the valuable perspective that such a representative could bring on the rule change issues the Committee regularly considers. With the passage of the CVRA, crime victims, no less then the Justice Department and the defense bar, became participants with recognized rights in the criminal justice process. They should, therefore, be represented directly on the Advisory Committee on Criminal Rules. When Congress passed the CVRA, it made a commitment to crime victims that they would no longer be overlooked in the criminal justice process. Nowhere is that commitment better exemplified than in the CVRA's promise that victims will be given ``the right to be treated with fairness and with respect for the victim's dignity and privacy.'' Until the rules governing criminal proceedings in our Federal courts fully protect crime victims, that important goal will not be achieved. I urge my colleagues to carry forward the promises made in the Crime Victims Rights Act. Crime victims' rights must be respected throughout the Federal Rules of Criminal Procedure. The Crime Victims' Rights Rules Act would amend the rules to ensure that crime victims are no longer overlooked in the federal criminal process.

Mr. KYL

Mr. KYL. Mr. President, I rise to introduce The Crime Victims' Rights Rules Act, which would continue the work started in The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act. The bill would make comprehensive procedural changes to the Federal Rules of Criminal Procedure to protect crime victims' rights throughout the federal criminal process, thereby guaranteeing that crime victims' rights will be fully respected in our federal courts. As one of the Senate sponsors of the CVRA, I know that Congress intended the Act to bring dramatic changes to the way that the federal courts treat crime victims. Fortunately, in the two-and-a-half years since that legislation became law, positive strides have been made for crime victims. For example, with funding provided by act, the National Crime Victims Law Institute has been able to support crime victims' legal clinics around the country. I am also encouraged that court decisions have recognized the importance of crime victims' rights in the process. But while progress has been made in implementing the CVRA, at least one important step remains to be taken: The Federal Rules of Criminal Procedure must be comprehensively amended to recognize the rights of crime victims throughout the process. The Federal rules have been described as ``the playbook'' for Federal judges, prosecutors, and defense attorneys. Currently, the Federal rules make virtually no mention of crime victims. If crime victims are to fully integrated into the daily workings of our criminal justice process, then their role in that process must be fully protected in the federal rules. I am encouraged to see that the Federal courts have been taking some modest steps toward protecting crime victims in the Federal rules. Federal district court judge Paul Cassell initiated the process by recommending rule changes to the Advisory Committee on Criminal Rules. His comprehensive set of useful proposals appeared in an excellent law review article published in The Brigham Young University Law Review in 2005. In recent months, the Advisory Committee has adopted a few of his proposals to implement some aspects of the CVRA. These changes are expected to take effect next year. These amendments are positive, but far more remains to be done. The Advisory Committee's six proposed amendments, five changes to existing rules and one new rule, do little more than reiterate limited parts of the statute. Crime victims have been treated unfairly in the Federal criminal justice system for far too long to be left to rely on a handful of minimal protections. To respect crime victims' rights fully in the process, it is necessary to take more decisive and comprehensive action to thoroughly amend the rules. When Congress passed the CVRA in 2004, it promised that crime victims would have rights throughout the criminal justice process. Of particular importance, the CVRA guaranteed that crime victims would have the right to be treated with ``fairness.'' My proposed amendments would add to the Federal rules the changes needed to treat crime victims fairly. These changes to the rules would provide vital protections for crime victims without interfering with the rights of criminal defendants or the need for Federal judges to manage their dockets effectively. One example of the bill's changes is the amendment to Rule 50 to protect the victims' right to a speedy trial. The bill would amend Rule 50 to provide: ``The court shall assure that a victim's right to proceedings free from unreasonable delay is protected. A victim has the right to be heard regarding any motion to continue any proceeding. If the court grants a motion to continue over the objection of a victim, the court shall state its reasons in the record.'' It is hard for me to see how anyone could object to this procedural change. The CVRA promised to crime victims the right ``to proceedings free from unreasonable delay.'' The bill would place that right into the Federal rules. Another example of the kind of change that the bill would make is its amendment of Rule 21 to protect crime victims' rights in transfer decisions. In some situations, federal courts can transfer a criminal case from one district to another. The bill would amend Rule 21 to provide: ``The court shall not transfer any proceeding without giving any victim an opportunity to be heard. The court shall consider the views of the victim in making any transfer decision.'' It is again hard to understand how anyone could object to the requirement that a judge give a crime victim the chance to be heard before a case is transferred to a distant location. For example, the bill would have protected the right of the Oklahoma City bombing victims to present to the trial judge their views on whether the trial should have been transferred out of Oklahoma and, if so, to where. The bill does not mandate any particular substantive result, leaving it to the trial judge to make the ultimate determination about whether to transfer a case. But the bill would change the process by which such decisions are made, ensuring that victims are treated fairly by giving them an opportunity to provide their views to the judge. A further example of the changes in the bill is the amendment to Rule 48 to protect the victim's right to be heard before a case is dismissed. The bill would provide: ``In deciding whether to grant the government's motion to dismiss, the court shall consider the views of any victims.'' With this procedural change, the victim would have the opportunity to present the court any reasons why a case should not be dismissed. This right is implicit in the CVRA's mandate that crime victims be treated with fairness. It is hard to understand how a crime victim is treated with fairness if the court dismisses a case without considering the victim's position on the dismissal. Indeed, the only case to have considered this issue reached exactly this conclusion. As United States v. Heaton explains, When the government files a motion to dismiss criminal charges that involve a specific victim, the only way to protect the victim's right to be treated fairly and with respect for her dignity is to consider the victim's views on the dismissal. It is hard to begin to understand how a victim would be treated with fairness if the court acted precipitously to approve dismissal of a case without even troubling to consider the victim's views. To treat a person with ``fairness'' is generally understood as treating them ''justly'' and ``equitably.'' A victim is not treated justly and equitably if her views are not even before the court. Likewise, to grant the motion without knowing what the victim thought would be a plain affront to the victim's dignity. U.S. v. Heaton, 458 F. Supp. 2d 1271, 1272 (D. Utah 2006). I agree with Heaton that the CVRA requires that crime victims have the opportunity to submit their views to the court on any dismissal. That is why this bill would place this right specifically into the federal criminal rules. One particularly important part of the bill is its change to Rule 17 to protect the confidential and personal records of crime victims. The Advisory Committee itself proposed an amendment to Rule 17 to create specific procedures for subpoenas directed at confidential and private information concerning crime victims. This change was designed to prevent a recurrence of the problems that recently occurred in the Elizabeth Smart kidnapping case in Salt Lake City. My colleagues may remember this case, which involved the abduction of a teenaged girl from her home. Fortunately, she was found a year later and the suspected kidnapper apprehended. In the state criminal proceedings that followed, defense attorneys subpoenaed confidential school and medical records about Elizabeth. Because these subpoenas went directly to Elizabeth's school and hospital, she was never given the opportunity to object to them, and some confidential information was improperly turned over to defense counsel. The Advisory Committee has recognized that this same ``end run'' around the victim could occur under the federal rules. It has therefore adopted a rule requiring notice to crime victims before their personal and confidential information is subpoenaed. But this seeming protection has a catch: a defendant can avoid giving any notice to victim by arguing to a court, in an ex parte proceeding, that exceptional circumstances exist. This kind of ex parte procedure raises serious ethical concerns. In fact, the American Bar Association wrote to the Advisory Committee in February urging it to make certain that crime victims receive notice and an opportunity to be heard before such subpoenas issue. As Robert Johnson, Chair of the ABA's Criminal Justice section explained, the canons of judicial ethics forbid ex parte contacts with judges on substantive matters. Mr. Johnson went on to urge the Advisory Committee to give careful consideration of the ethical violations that might occur from ex parte subpoenas: While the proposed amendment to Rule 17 is intended to protect the interests of crime victims, the ABA urges the Committee to carefully examine the proposal to determine if the proposal regarding Rule 17 would be contrary to the Court's responsibility under Canon 3(B)(7) in allowing ex parte contact on a substantive matter. Even if the Committee decides that it is not a substantive matter, the Committee should consider whether the proposed rule would allow a tactical advantage as a result of the ex parte communication and the judge is required to promptly notify the other party of the substance of the ex parte communication and allow an opportunity to respond. It seems that the Advisory Committee's proposed rule permitting ex parte subpoenas of personal and confidential information of crime victims in some situations might run afoul of these ethical rules. Accordingly, under the bill, crime victims would enjoy an absolute right to notice before such information as psychiatric and medical records could be subpoenaed. This is the standard process that our adversary system of justice uses. The CVRA promised crime victims that they would enjoy ``the right to be treated with fairness and with respect for the victim's dignity and privacy.'' My bill would respect victims' dignity and privacy by giving them a court hearing before any of their confidential records could be turned over to an offender accused of victimizing them. This is not to say that such information will never be disclosed to the defense. A judge will have to make the determination whether disclosure is appropriate. But the judge would make that determination only after hearing from the prosecutor, defense counsel and most important of all the crime victim whose privacy rights are directly affected. One of the most significant parts of the bill is its creation of a new Rule 44.1, which would provide: ``When the interests of justice require, the court may appoint counsel for a victim to assist the victim in exercising their rights as provided by law.'' This important change builds on existing Federal law. Title 28 already permits the court in a criminal case to ``request an attorney to represent any person unable to afford counsel.'' For criminal cases involving child victims, Title 18 U.S.C. section 3509 allows the appointment of a guardian to represent the child's interests. Although the statutes provide these rights, they have yet to be actually implemented so that crime victims can actually take advantage of them. I want to be clear that I am not proposing that all crime victims should have counsel appointed for them. At the same time, though, I would think all could agree that there are situations where a trial court ought, as a matter of discretion, to have the ability to appoint legal counsel for a crime victim. For example, a crime victim might present a novel or complex claim that the courts have not yet considered. Or a crime victim might suffer from physical or mental disabilities as a result of the crime that would make it difficult for the victim to be heard without the help of an advocate. For many years, courts have had the ability to appoint counsel for potential defendants on a discretionary basis. My bill would allow that same, well-recognized power to be used to appoint counsel for crime victims. One last section of the bill deserves special note because it demonstrates the need for Congress to step into the rules process. The bill would amend Rule 32 to guarantee victims the right to speak at sentencing hearings. This is a change from the more limited right that the Advisory Committee has given victims the right ``to be reasonably heard.'' The Advisory Committee's note to this provision seemingly suggests that courts would not have to give all victims the right to speak at sentencing. This more limited right runs counter to the legislative history as to how the CVRA was to operate. While the CVRA gave crime victims the right to be reasonably heard, it was the undisputed legislative intent that victims would have the right to speak. I explained on the Senate floor at the time the act was under consideration that: It is not the intent of the term ``reasonably'' in the phrase ``to be reasonably heard'' to provide any excuse for denying a victim the right to appear in person and directly address the court. Indeed, the very purpose of this section is to allow the victim to appear personally and directly address the court. My colleague Senator Feinstein remarked at that time that my understanding was her ``understanding as well.'' The Advisory Committee's action also contravenes at least two published court decisions on this issue. In United States v. Kenna, Judge Kozinski wrote for the Ninth Circuit that the CVRA's legislative history reveals ``a clear congressional intent to give crime victims the right to speak at proceedings covered by the CVRA.'' And in United States v. Degenhardt, Judge Cassell reached the same conclusion writing for the District of Utah. My bill would provide the right of victims to speak at sentencing hearings. Of course, prosecutors, defense counsel, and defendants have on enjoyed this right. Crime victims, too, deserve the opportunity to speak to the court to ``allocute'' as this right is called and to make sure that the court and the defendant understand the crime's full harm. I will not take the time here to go through all of the other provisions of the bill. But I did want to highlight one important note about the appropriateness of Congress acting to amend the rules to protect crime victims. Congress enacted the CVRA in October 2004. In the almost 3 years since then, I have waited patiently to give the federal courts the first opportunity to review the need for rule changes. At the same time, though, I have made clear my position, as one of the cosponsors of the CVRA, that Congress expected significant reforms in the Federal rules. As I explained to my colleagues at that time, the crime victims' community in this country was looking to the CVRA to serve as a model for the states and a formula for fully protecting crime victims. It was because the CVRA was expected to have such a far-reaching impact that the crime victims' community was willing to defer, at least temporarily, its efforts to pass a constitutional amendment protecting victims' rights. I made this point directly to the advisory committee in a letter I sent to Judge Levi on February 15 of this year. Thus, several months ago, I placed the Advisory Committee on notice that, if it failed to act to fully protect crime victims, Congress might step into the breach. A few weeks ago, Judge Levi replied to my letter, and I greatly appreciate his comments and explanations. In his reply, he acknowledged that many of the proposals were worthy of close attention. He indicated, however, that the Advisory Committee was going to delay action on them for some indefinite period of time. The reasons he gave for the delay were to: 1. gather more information on precisely how the proposals would operate in specific proceedings and what effects they might have, 2. obtain empirical data substantiating the existence and nature of any problem or problems that could be addressed by rule, and 3. provide additional time for courts to acquire experience under the CVRA and to develop case law construing it. Judge Levi also suggested that some of the proposed rule changes would have created, in his view, new ``substantive rights'' for crime victims that went beyond the CVRA. Judge Levi's letter demonstrates why the Rules Enabling Act wisely left the final decision on how to structure rules of evidence and procedure to Congress. The letter refers to the need to ``gather more information'' and ``empirical data'' on crime victims'' issues before proceeding. While some might point out that the Advisory Committee has already had more than 2\1/2\ years to collect such data, I can appreciate the difficulty that a court rules committee can have in assessing the scope of a national problem. Congress, however, is already well-informed on the need for protecting crime victims' rights. Congress adopted the CVRA only after 8 years of legislative efforts and hearings on the Crime Victims Rights Amendment. This record leaves Congress well positioned to recognize the need for prompt and effective action to protect crime victims. The letter also refers to the need for courts to develop case law construing the CVRA. The problem with this approach is that the anticipated case law may never develop. Most crime victims are not trained in the nuances of the law and lack the means to retain legal counsel. Victims are often indigent and are frequently emotionally and physically harmed by the defendant's crime. They are then involuntarily forced into the middle of complicated and unfamiliar legal proceedings. To expect that in these circumstances, crime victims will often be able to undertake the kind of sophisticated and pathbreaking litigation that would be necessary to establish crime victims seems unreasonable. One of the main reasons for the CVRA was to change a legal culture that has been hostile to crime victims. To expect that this legal culture will somehow, on a case-by-case basis, welcome crime victims is unlikely. Indeed, it is ironic that while waiting for case law to ``develop,'' the Advisory Committee refused to add to the Federal rules a provision confirming the existing discretionary right of trial judges to appoint legal counsel for crime victims who need legal assistance on complicated issues. The wait-for-caselaw approach is also troubling because it assumes that Federal court litigation will serve sufficiently to clarify the rights of victims in the Federal system. But the Federal Rules of Criminal Procedure form the template for rules of criminal procedure in states throughout the country. One of the main purposes of the CVRA was to create a model for protecting victims in the criminal justice system. Unless the text of the Federal rules themselves protects crime victims, the states will not have a model they can look to in drafting their own rules to guarantee victims fair treatment. The final reason given for deferring action on rules changes is that the Advisory Committee thought that some of the changes might create new substantive rights better left to Congress. It's a bit of an Alphonse-and-Gaston situation: Congress says ``after you'' to the Advisory Committee, only to have the Advisory Committee say ``after you.'' To avoid an impasse that leaves crime victims unprotected, obviously someone needs to take the lead. That is why I am today introducing The Crime Victims' Rights Rules Act. One last provision in the bill is also worth highlighting. The bill includes a sense of the Congress provision that crime victims ought to be represented on the Advisory Committee on Criminal Rules. This point was called to my attention by Professor Douglas Beloof, a distinguished law professor at the Lewis and Clark College of Law and the Director of the well-regarded National Crime Victims Law Institute. Professor Beloof testified before the Advisory Committee in January. He was surprised to discover at that time that, while the Justice Department, the defense bar, and judges are all represented on the Committee, there is no representative for crime victims. Not only does this leave crime victims organizations without a liaison for bringing information to the attention of the Committee, but, more important, it deprives the Committee of the valuable perspective that such a representative could bring on the rule change issues the Committee regularly considers. With the passage of the CVRA, crime victims, no less then the Justice Department and the defense bar, became participants with recognized rights in the criminal justice process. They should, therefore, be represented directly on the Advisory Committee on Criminal Rules. When Congress passed the CVRA, it made a commitment to crime victims that they would no longer be overlooked in the criminal justice process. Nowhere is that commitment better exemplified than in the CVRA's promise that victims will be given ``the right to be treated with fairness and with respect for the victim's dignity and privacy.'' Until the rules governing criminal proceedings in our Federal courts fully protect crime victims, that important goal will not be achieved. I urge my colleagues to carry forward the promises made in the Crime Victims Rights Act. Crime victims' rights must be respected throughout the Federal Rules of Criminal Procedure. The Crime Victims' Rights Rules Act would amend the rules to ensure that crime victims are no longer overlooked in the federal criminal process.

Mr. KYL

Mr. KYL. Mr. President, I can say this in about 90 seconds. The Senator from Pennsylvania made the point. It is a sad commentary in America today that many Americans have lost faith in their Government. The only group that has poll numbers less than the President these days is the Congress. Americans don't believe their Government is representing them and acting on their behalf. The polls show it. On one of the most critical issues of our day, we will not restore that confidence if we fail to act again. The only way we can restore that confidence is by acting. Skepticism is not a reason for inaction. For those who say, well, let's enforce our laws, I remind them that some of our laws are unenforceable. My conservative friends are the first to point out that the 1986 law is not an effective law. It is unenforceable. Until we change it, we are not going to be able to enforce the law. That is why it is time for us to return to the rule of law in America. By returning to the rule of law, we can restore that confidence that is so critical for the American people to have in their Government.

Mr. KYL. Mr. President, in my last election my constituents sent me a couple of clear messages, one of which was do something about illegal immigration. In my State, we have a majority of people who are entering the country illegally coming across the border from Mexico, creating huge environmental problems, law enforcement problems, people victimized on both sides, costs to the State, lawlessness literally on street corners. The people of my State are saying: What is happening to our country when we can't enforce the laws at the border? Are we not a sovereign country? They have a point. We understand politically that in order for us to enforce the law, we have to have an enforceable law. As a result, this bill we have put together for the first time creates a strong bipartisan consensus for all of the things that are needed to control our border. But it does more in two key ways. The reason these other two things are important is because a lot of my constituents have said: Why should we believe that a new law is going to be enforced when the existing law isn't enforced? That is a very good question. Presidents, both this administration and the previous administration, and Congresses have not done an adequate job of enforcing the law. But it is also true that we have two laws that are not very enforceable. We know that 40 percent of the people who are here illegally have overstayed visas. They didn't cross the border illegally. It is very hard to enforce the visa overstay laws because they are not adequate. We don't have adequate resources, either. Secondly, the employee verification system in place today is a joke. Everyone knows that. One can use counterfeit driver's licenses and Social Security cards, and we all know there are millions of people working here illegally though they presented documents to an employer. The 1986 bill wrote a very bad provision for employment verification. It doesn't work. So for those who say, ``Well, let's enforce the law, and then there will be the attrition of illegal immigrants and we will get back to a good situation,'' the answer is, of course, if you do not have a good law to enforce, you cannot work that strategy. The law has to be changed. It is very clear that in order to change the law so it can be enforceable--both with respect to visa overstayers and at places of employment--we are going to have to have a group of people get together, Democrats and Republicans, willing to support some things that each other wants in order to pass such a law. That is the genesis of the bill that is before us. I hope my colleagues will recognize that doing nothing is not acceptable. It is pretty clear, when we come down to this cloture vote, that is going to be very close, that 40 Senators might be able to stop the Senate dead in its tracks here, thwarting the will of the majority. Those 40 Senators would be people on one side who want it all their way and on the other side who want it all their way, thwarting the will of the majority, which recognizes that neither side can have it all their way but that doing nothing is not acceptable. That will be the result if cloture is not invoked. The final point I would like to make is there are several amendments we should be voting on to improve this legislation. Only by moving forward with the cloture vote will we be able to vote on those amendments. One of those is an important amendment, a very large amendment, which was put together by Senator Graham and myself and Senator Martinez and several others which really tries to fill in all of the gaps in enforcement, some of which have been pointed out to us by our constituents, by critics of the bill, by folks on the talk shows, by people who oppose the bill. We have taken a lot of those suggestions--many of them are great ideas--and put them into this enforcement amendment. It will, for example, make it very difficult for a visa overstayer to be able to be here illegally in the future. We are going to know when they overstay their visa. We are going to detain them until they can be removed from the country. That is just one example. So in order to be able to vote on those strong and strengthening amendments, we have to invoke cloture, we have to be able to proceed. There are still two more opportunities for those who want to express their opposition to the bill to do so. There will be a budget point of order, and there will be the vote on final passage. But surely our colleagues would, I hope, respect the will of the majority, which is to keep moving to make this bill as good as we possibly can, and then everybody has the ability to vote however they want to at the end of the day. I hope my colleagues will agree that doing nothing is not an option and that we can continue to move the bill forward by supporting cloture.

Mr. KYL

Mr. KYL. Mr. President, I appreciate the comments of the Senator from Iowa. He was absolutely assured by people on our side that he would be allowed to bring up an amendment, and I am glad we have been able to do that. He certainly should be afforded that right. With that said, however, I can't match his opposition to the bill with his amendment. If you want to assure that the bill will not work, then adopt the Grassley amendment. It substitutes the existing title III in the bill, which is a very good title to ensure employee verification, with a potpourri of provisions that, frankly, look a lot like the status quo and will not ensure that employees are adequately checked to ensure they are entitled to be employed. For example, the Grassley amendment provides that none of the current employees are checked. In other words, the only people who have to be checked are future employees, so all the people working today, including all the illegal immigrants working today, don't have to be checked under the Grassley amendment. Secondly, amazingly, the only way to physically verify that the person seeking the job is, in fact, the person with the identity entitled to be employed is with a photograph. Nobody is proposing that we fingerprint people to get jobs, and that leaves the photograph as the best identity document. The bill provides that either a passport with a photograph or a driver's license with a photograph be the document. You have to verify that the person standing in front of you is the person to whom the document has been issued and the rightful owner of the Social Security number he has given you. The Grassley amendment does not require that a photograph be used in the identification process. This is one of the first things that was recommended by the 9/11 Commission, to have a secure document with a photograph with which you can confirm identity. Third, and this is amazing, and I honestly don't understand why this would be in the Senator's amendment, but it gives foreign temporary workers the right to file legal complaints against employers who hire American workers instead--basically, to file a discrimination complaint based upon the fact that they were not hired. Current law does not permit temporary workers to file these complaints. The basic bill would not allow workers to file these complaints. But the amendment does this by eliminating current laws that prohibit temporary workers from filing a discrimination claim based on immigration status. Next, one of the key things we did after 9/11 was to ensure that Government agencies could share information with each other. When we determined the best way to ensure people are legally eligible to work, we quickly understood that we had to have sharing of information from the Social Security Administration, from the Department of Homeland Security, even, in some cases, from the Internal Revenue Service. Unless these agencies are able to share the information with each other when we access the databases, we are not going to know for sure whether the individual is entitled to be employed. What the amendment provides is that after 5 years, the information-sharing provisions are sunsetted. None of these are really calculated to ensure that we can have a good employee verification system. They undercut that system and, as a result, they would weaken our ability to ensure employee eligibility to work. Finally, in some cases, we have employers who are violating IRS rules because they don't report income. The underlying bill allows the IRS to identify those employers and go after them. This is one of the things the American people are upset with today, that we are not going after employers who are violating the law, who commit tax violations in hiring unlawful workers. The underlying bill allows us to do that. The amendment doesn't allow us to do that, and I don't understand why. The bottom line is that title III of the underlying bill is a very good, strong provision supported on a bipartisan basis to ensure that we can verify the eligibility of workers to be employed. Title III, unfortunately, is weakened dramatically by this Grassley amendment which would in all the five ways I indicated undercut our ability to verify employment. Mr. President, I reserve the remainder of my time and yield to the Senator from Massachusetts.

Mr. KYL. Mr. President, may I be notified after 5 minutes so I might yield time to Senator Kennedy?