Jon Kyl

Mr. KYL

Mr. KYL. Madam President, there is an old joke about the definition of retreat, which is a strategic withdrawal. I note that is the phrase used in the resolution, S.J. Res. 9, to describe the process of leaving Iraq. The language effectively is: ``The President shall commence the phased redeployment of United States forces from Iraq not later than 120 days,'' and then says: . . . with the goal of redeploying by March 31, 2008, all the United States combat forces from Iraq. . . . Except for the limited purposes of protecting forces, training Iraqi forces, and conducting targeted counterterrorism operations. That is a very bad idea. We shouldn't be playing politics with this war, and we shouldn't be trying to micromanage the war from Congress. But setting specific dates by which the commanders are to make certain decisions, including how troops are deployed, is clearly micromanaging the war effort. The fact there have been 17 resolutions--I believe this is the 17th resolution--on the Democratic side of the Congress, and the fact that none of those other 16 were adopted I think demonstrates the confusion on the other side as to what exactly ought to be done and the differences of opinion by Members on the other side of the aisle. Thank goodness we didn't adopt any of the other 16, and we shouldn't adopt this one either. This one is particularly pernicious. It actually begins the withdrawal. It sets a date, ``shall commence the phased redeployment . . . not later than 120 days. Then it uses a goal of completing that withdrawal by March 31, 2008. Some have tried to hide behind the word ``goal.'' I think Senator Feingold said it right, however, on March 8 of this year when he said: For the first time, it-- ``It'' meaning the resolution-- has a timetable in place, as I called for in August of 2005. It's not as early as I would like, but is a timetable not only to begin to get the troops out but to get the troops out except for very limited purposes. It didn't always used to be this way. A lot of our Democratic colleagues understood that setting timetables and deadlines was absolutely the wrong thing to do. The distinguished majority leader, for example, said: But as far as setting a timeline, as we learned in the Balkans, that's not a wise decision, because it only empowers those who don't want us there, and it doesn't work well to do that. Another one of the supporters of the resolution said 2 days ago: I don't believe it's smart to set a date for withdrawal. I don't think you should ever telegraph your intentions to the enemy so they can await you. Another cosponsor of the resolution said 3 days ago: I, for example, am not in support of circling a date on a calendar and saying, ``No matter what, we're out on that date.'' One of the most thoughtful people in the Senate on matters of foreign policy has spoken a lot on this issue, and I think what he said a couple of years ago makes a lot of sense. This is the distinguished chairman of the Foreign Relations Committee. He was talking about the options. He said: . . . we call it quits and withdraw, I think that would be a gigantic mistake for the reasons I stated earlier. Or we can set a deadline for pulling out, which I fear will only encourage our enemies to wait us out, equally a mistake. . . . I mean, the idea of setting a timetable to leave generally means that you have to set and train the process of leaving. It is not an easy process. And I think once that is smelled as the option, then I think you find it will degenerate quickly into sectarian violence, every man for himself. And the conclusion that will be achieved will be, I think, Lebanon in 1985, and God knows where it goes from there. Recently, the distinguished chairman said this, unfortunately: We should withdraw our combat troops by early 2008, except for a limited number necessary to keep training Iraqis and to deny terrorists a sanctuary. As I said, it used to be that most Senators understood that setting a timetable in a war, a date for withdrawal was a very bad idea, not just because it tried to micromanage the conduct of the war from the Congress but because it signaled to the enemy precisely what the enemy had to do, to wait us out and then prevail in the conflict. That is precisely what this resolution does and is the key reason why every Senator should be voting against this resolution and why those who spoke against a timetable before should remember what they said and the wisdom of those words and follow that same advice today. This is especially pernicious because at the very time this resolution is being adopted, there continues to be news from Iraq that suggests the new strategy, the Petraeus plan, is actually beginning to work. Nobody is claiming any victory. There are going to be bad days as well as good. I ask unanimous consent at the close of my remarks to print in the Record an article from the Associated Press in my hometown newspaper: ``Baghdad's terror death counts are falling.''

Mr. KYL. Madam President, the article points out the fact that the death squad deaths are falling substantially, the militia activity is down substantially. While our commanders there are being cautious about declaring the operation a success, nonetheless, there are many different descriptions of events happening in Iraq that give us a lot of hope. I was there a couple of weeks ago, and our commanders and Iraqis both were cautiously optimistic this would work. The point is, at the very time the new plan is underway and it seems to at least show early signs of success, why would we want to declare it a failure and start the process of withdrawing at the very time these additional troops seem to be making a difference? One of the chairmen of the Baker-Hamilton study commission, former Democratic Congressman Lee Hamilton, was testifying before the Congress about a month ago. He said we should give this plan a chance. We should give it a chance to succeed. That is exactly what we ought to do. We start by rejecting the resolution that is pending because it micromanages the war and sends a horrible signal. We also try to support the troops by adopting as quickly as possible a supplemental appropriations bill that funds this effort without tying the strings of our commanders and without imposing so many other conditions that the President is constrained to veto it. We have to get that funding to our troops as soon as possible. That is the other message the commanders on the ground, both in Kuwait and Iraq, gave to me when we were there. They said: Please adopt the supplemental appropriations bill without strings. I urge my colleagues to vote against the resolution when it comes up for a vote later this afternoon. Exhibit 1 [From the Arizona Republic, Mar. 15, 2007] Baghdad's Terror Death Counts are Falling (By Robert H. Reid) Baghdad.--Bomb deaths have gone down 30 percent in Baghdad since the U.S.-led security crackdown began a month ago. Execution-style slayings are down by nearly half. The once frequent sound of weapons has been reduced to episodic, and downtown shoppers have returned to outdoor markets, which are favored targets of car bombers. There are signs of progress in the campaign to restore order in Iraq, starting with its capital city, according to a Pentagon report released Wednesday. But although many Iraqis are encouraged, they remain skeptical how long the relative calm will last. Each bombing renews fears the horror is returning. Shiite militias and Sunni insurgents are still around, perhaps just lying low or hiding outside the city until the operation is over. U.S. military officials, burned before by overly optimistic forecasts, have been cautious about declaring the operation a success. Another reason it seems premature: Only two of the five U.S. brigades earmarked for the mission are in the streets, and the full complement of American reinforcements is not due until late May. The report even used for the first time the term ``civil war'' to describe some of the violence. But it stressed that the term does not capture Iraq's complex situation, and its assessment was based on the final three months of 2006, which it said was the most violent three-month period since the U.S.-led invasion. U.S. officials say the key to the security crackdown's long-term success is the willingness of Iraq's sectarian and ethnic political parties to strike a power- and money-sharing deal. That remains elusive: A proposal for governing oil, the country's main source of income, is bogged down in parliamentary squabbling. Nevertheless, there are encouraging signs. Gone are the ``illegal checkpoints,'' where Shiite and Sunni gunmen stopped cars and hauled away members of the rival sect, often to a gruesome torture and death. The rattle of automatic-weapons fire or the rumble of distant roadside bombs comes less frequently. Traffic is beginning to return to the city's once-vacant streets. ``People are very optimistic because they sense a development. The level of sectarian violence in streets and areas has decreased,'' said a 50-year-old Shiite, who gave his name only as Abu Abbas, or ``Father of Abbas.'' ``The activities of the militias have also decreased. The car bombs and the suicide attacks are the only things left while other kinds of violence have decreased.'' In the months before the security operation began Feb. 14, police were finding dozens of bodies each day in the capital, all victims of Sunni and Shiite death squads. Last December, more than 200 bodies were found each week, with the figure spiking above 300 in some weeks, according to police reports compiled by the Associated Press. Since the crackdown began, weekly totals have dropped to about 80, which is hardly an acceptable figure but clearly a sign that death squads are no longer as active as they were in the final months of last year. Bombings also have decreased in the city, presumably due to U.S. and Iraqi success in finding weapons caches and to more government checkpoints in the streets that make it tougher to deliver the bombs. Prime Minister Nouri al-Maliki, a Shiite, made a show of confidence Tuesday by traveling out of Baghdad for meetings with Sunni tribal leaders and government officials in Ramadi, a stronghold for Sunni insurgents. ``I would caution everybody about patience, about diligence,'' Maj. Gen. William Caldwell, a U.S. spokesman, said Wednesday. ``This is going to take many months, not weeks. But the indicators are all very positive right now.'' Sunni militants, meanwhile, are believed to have withdrawn to surrounding areas such as Diyala province, where they have safe haven. The U.S. command sent an extra 700 soldiers Tuesday to protect the highways leading into the capital from there. If militants from both sects are indeed lying low, that suggests they may have adopted a strategy of waiting until the security operation is over, then re-emerging to fight each other for control of the capital.

Mr. KYL

Mr. KYL. Mr. President, for weeks, I have been coming to the floor to discuss the signs of progress we are beginning to see as the military implements our new strategy in Iraq. Recent developments are encouraging. They include the following: First of all, the Iraqi Cabinet approved a national oil compact, which is the beginning of a resolution of what to do with the revenues that are produced from the oil that is produced in Iraq. It is a vital step in ensuring a united Iraq, and Prime Minister Maliki called it a ``gift to all of the Iraqi people.'' This is expected to be approved by the Iraqi legislature this spring. Next is the capture recently of Abu Omar al-Baghdadi, the leader of al-Qaida in Iraq, the successor to al-Zarqawi, in the western outskirts of Baghdad. This represents a continuing increase in the number of terrorist chiefs who have been killed or captured. Just last week, the Iraqi neighbors meeting was held. It generated a lot of press because both U.S. and Iranian representatives were present. It involved all 16 nations involved in the conflict. It was the neighbors of Iraq, as well as countries such as Great Britain and the United States. It was the largest meeting of foreign countries in Iraq since the summit meeting of the Arab League members in March of 1990. There were working groups established to work on various problems all the countries had--for example, refugees from Iraq who have gone into Syria or Jordan. A special working group was created to try to deal with that issue. This represents a step forward, all of which illustrates the fact that not only is the new strategy being implemented a military one but it involves diplomatic and economic and political factors as well. It was interesting that the Prime Minister toured Baghdad to illustrate the security part of the new strategy that is beginning to work. He had been largely confined to the relatively safe Green Zone, as it is called, but on Sunday, he was able to go outside the wire to tour a power station, visit with police, and shake hands with ordinary Baghdad citizens. He attributed his newfound freedom of movement to the success of the Baghdad security plan, and he committed to redouble his efforts, saying: This operation will be accelerated at all levels in numbers and weaponry; we will not back down. You have also seen successes in places such as Sadr City, where it is pretty clear that the Shiite militias have decided to stand down and not contest the Iraqi and American forces. In fact, at the conclusion of my remarks, I will have printed in the Record two newspaper articles. One was written for the Washington Post on March 11, called ``The `Surge' is Succeeding,'' by Robert Kagan. While the leaders in Iraq are not yet willing to publicly say the surge is succeeding, clearly evidence of that is on the ground, and at least the media--journalists--are entitled to conclude from what is happening that it is succeeding. I was in Iraq a couple of weeks ago and was briefed by General Odierno and General Petraeus, as well as others. They all were cautiously optimistic that things were looking better on the ground. They just wanted to caution that there would be good days and bad; that the enemy has a say in this and they will strike back, certainly, all they can. And if the administration were to claim too much in the way of success too early and there was some kind of event that resulted in a lot of violence, there might be a suggestion that the administration was trying to put too nice a gloss on it. So the administration is trying to downplay the successes. But the reality is that there is news of success. I think that makes all the more distressing and puzzling the effort by a lot of our colleagues not only to downplay the potential for success there but to develop strategies to undercut that success with resolutions that would micromanage the war from the Senate and, indeed, bind the hands of our commanders and our military as they begin to implement this program. It is hard for me to fathom the amount of time and energy that has been put into the development of these various resolutions--at last count, some 17 different resolutions--that would, in one way or another, criticize the President's plan or try to find some way to stop it from occurring. What is further puzzling and distressing is the degree to which this appears to be resulting from political considerations. Another one of the pieces I am going to ask to print in the Record is an article from March 12--that is today's Roll Call magazine--in which leaders on the Democratic side are quoted as referring to the political aspects of this strategy to try to get resolutions adopted. The article talks about the Democratic leader's ``abandoning efforts at crafting a bipartisan deal'' and ``instead look to directly tie Republicans to the unpopular conflict. . . .'' The articles goes on to talk about ``the decision to ratchet up their partisan rhetoric''--``their'' meaning Democratic partisan rhetoric--by a resolution that sets ``specific dates for a mass redeployment of troops in Iraq and creating new restrictions on the war effort,'' and, indeed, that is what the latest resolution of the majority leader would do. But the article goes on to talk about this ``more aggressive push to tar vulnerable Republicans up for re-election in 2008.'' That is not what we should be all about in debating the war in Iraq and designing solutions to ensure that war can be resolved successfully. It should not be about trying to tar vulnerable Members of the opposition party to diminish their reelection prospects in the year 2008. The chairman of the Democratic Campaign Committee, the distinguished senior Senator from New York, has, according to this Roll Call article, ``warned that Democrats would use the issue as a bludgeon on Republicans up for reelection next year,'' and they quote him as saying: The heat on these Republican Senators that are up in '08 is tremendous. Adding: . . . this is a campaign . . . we are going to keep at [it]. To me, that is an illustration of something very wrong with the Democratic Party's approach to this war. Reasonable people can differ about whether we should be there and how we should conduct the operations once there. But we ought to be able to agree that our responsibility is to provide the funding or to cut it off. The President's responsibility as Commander in Chief is to do his best to see that the mission is achieved. That is what we are sending the troops over there to do. That is what General Petraeus was sent there to do. He was confirmed unanimously by this body a month or so ago. When I was in Iraq, General Petraeus told us: Please see to it that we have what we need to fulfill our mission. Pass the supplemental appropriations bill to fund our effort and don't tie our hands with micromanagement from the Senate. This is the message from the person we sent over to do the job. It seems to me this would be the wrong time to pull the rug out from under him and pull the rug out from under the troops just as there are signs of success, as I discussed earlier. It is interesting, too, that there seem to be so many different approaches to this effort to criticize the President and his plan. I mentioned that at last count there are some 17 different resolutions. Somebody called it the ``Goldilocks'' strategy, with the Democratic leader searching for a solution that is neither too hot nor too cold. The real question is: In the House of Representatives, are they going to lose people on the left or the right or did they get it just right, with sufficient numbers of projects in the supplemental appropriations bill to appeal to those who may not like the end result with respect to the Iraq part of the resolution? Some have labeled it a ``slow bleed'' because it appears to be a solution that doesn't cut off all the funding for the troops at this moment but, rather, over time makes it impossible for us to succeed. The resolution, as I understand it, says we have to begin withdrawing our troops by a specific date and complete the withdrawal by another specific date. In the past, there has been a fairly good bipartisan consensus for the proposition that is the worst of all worlds, that you don't want to set a timetable for withdrawal because it gives the enemy precisely what they need to calibrate how long they have to hang in there until you are gone and then they can move in and take over and fill the vacuum. So it is a bad proposition, even apart from the political motivation behind it. It is worth, taking a look at some of the iterations. We started with S. 2, a nonbinding resolution, that it wasn't in the national interest of the United States to proceed. That was criticized as being nonbinding. Then we move on to S. Con. Res. 7 that expressed disagreement with the plan. That didn't have sufficient support, so that was replaced by S. 470, the Levin bill. It expressed disagreement with the strategy but in a form the President would be forced to veto. Then we moved on to the Reid-Pelosi proposal, S. 574. Not surprisingly, this approach had no more support than the others, and so we then moved on to the Biden-Levin proposal. That bill never even saw the light of day. It wasn't even debated. Now we are down to S. J. Res. 9, a nonbinding resolution encouraging the President to redeploy all, or almost all, of the troops by the end of 2008. This has been described as a goal, and yet the resolution itself provides that it is much more than that; that the troops would, in fact, have to begin being redeployed and be fully redeployed by the end of March of 2008. I don't think this resolution will pass either because, as I said, most people agree setting a timetable for withdrawal is absolutely the worst thing you want to do, even if you don't agree with the troops being there in the first place. As I said earlier, the amount of time and effort consumed in trying to craft the perfect Iraq resolution is difficult to square with all the other important business we have to do. The majority leader, the chairmen of the Armed Services and Foreign Relations Committees, and other important Members of this body have devoted hours and hours to making grammatical edits to this legislation, even though none of it is going to pass. Frankly, it is a good illustration of why wars should not be micromanaged by Congress. We are not good at conducting wars. That is why we have a Commander in Chief, that is why we have a Joint Chiefs of Staff, that is why we have our military commanders, such as General Petraeus, in whom we have placed a great deal of confidence, who have the experience to conduct these kinds of operations. I daresay, there are not many of us who have the experience of the distinguished Presiding Officer, and it is important for us not to be armchair quarterbacks when lives are on the line. Iraq is perhaps the most critical issue facing our country at the moment, and my comments are not meant to suggest that Iraq deserves anything less than a full and fair debate on the floor. It is one thing, however, to have a debate and let each side make its position known and then vote on competing proposals. It is quite another to devote this kind of energy to attempts which appear to be purely political attempts to undercut the President and undercut the mission in Iraq. I believe the President has chosen a course that has the potential for success. That is why I mentioned at the beginning of my remarks some of the events which have been reported in the media that demonstrate early success. I, frankly, urge my colleagues to turn their energies to find ways to amplify these successes rather than to undercut them. It is interesting that Lee Hamilton, the chairman of the Baker- Hamilton commission, who has been cited many times by Members on both sides of the aisle, in testimony before the Congress has been insistent that now that the President has laid out a plan, that strategy should have a chance to succeed, that we should give it a chance to succeed. By the way, even though the President at the time did not indicate what he would be doing specifically, since that report has come out, several of the recommendations have, in fact, been a part of what the administration strategy is following. For example, the strategy of meeting with people in the neighborhood is a followup on one of the Baker-Hamilton recommendations. I agree with cochairman Lee Hamilton that we should give the strategy in Iraq a chance to succeed and not undercut it at the very moment it appears there are early signs of success with a resolution which, as I said, there had been a bipartisan consensus for that we shouldn't be setting a timetable for withdrawal since that simply plays into enemy hands. The final document I will ask unanimous consent to be printed in the Record when I conclude is a piece from the L.A. Times, dated today, March 12. Headline: ``Do we really need a Gen. Pelosi?'' It refers, of course, to the distinguished Speaker of the House of Representatives, who is supporting the plan that has been put forth in the House of Representatives by the Democratic leadership there. To quote from this L.A. Times.com piece: After weeks of internal strife, House Democrats have brought forth their proposal for forcing President Bush to withdraw U.S. troops from Iraq by 2008. The plan is an unruly mess: Bad public policy, bad precedent and bad politics. If the legislation passes, Bush says he'll veto it, as well he should. This comes from the Los Angeles Times, no particular friend of this administration. The Times goes on to say that this kind of micromanagement ``is the worst kind of congressional meddling in military strategy.'' They go on to say: By interfering with the discretion of the commander in chief and military leaders in order to fulfill domestic political needs, Congress undermines whatever prospects remain of a successful outcome. Then they go on to criticize the Speaker and others for trying ``to micromanage the conflict . . . with arbitrary timetables and benchmarks.'' Concluding: Congress should not hinder Bush's ability to seek the best possible endgame to this very bad war. So a paper that does not like the war or support the administration generally, nevertheless, recognizes it should not be micromanaged from the Congress; that if there are any possibilities for it to succeed, we should be following those possibilities. To sum it up, I simply say this: There is a chance for this strategy to succeed. We should give it a chance to succeed. Early signs are positive. We should not try to micromanage the war from the Congress. Therefore, when these resolutions come before us, we should reject them and allow our military commanders the opportunity that we have asked them to engage in to bring a successful conclusion to this war. Mr. President, I ask unanimous consent that the articles to which I referred be printed in the Record.

Mr. KYL. Mr. President, I suggest the absence of a quorum.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that I be allowed to speak in morning business for about 15 minutes.

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

Mr. KYL

Mr. KYL. Mr. President, I rise today in support of amendment No. 366, offered by my colleague, Senator Schumer. This important amendment would restore the export restrictions on highly enriched, HEU, bomb- grade uranium for use as a reactor fuel or as targets to produce medical isotopes, except on an interim basis to facilities that are actively pursuing conversion to low-enriched uranium LEU. Let's look at the history behind this amendment. From 1992 until 2005, we had a law that worked. Under that law, we allowed the exportation of HEU for the production of medical isotopes as long as the recipient of that highly enriched uranium cooperated with the United States to get to the point where the production of these medical isotopes could be done with low-enriched uranium. Low-enriched uranium is not of sufficient grade to make bombs. This law provided the incentive to work with the United States to attain conversion to LEU. Most important, it furthered our antiproliferation goal of reducing the circulation of HEU outside the United States. It is important to note that from 1992 until 2005, licenses for the shipments of HEU were never denied and the medical isotopes needed for radiopharmaceuticals were never in short supply. Then in 2005 this effective, 13-year-old law was gutted through an amendment to the Energy Policy Act and the export restrictions on HEU were eliminated. These restrictions were lifted over the objection of a majority of this body, which voted in favor of retaining existing law, 52 to 46, after a thorough debate. You may ask why an amendment to allow weapons-grade uranium to leave the United States without restriction would resurface in conference and end up enacted into law. I ask that same question. There are no good explanations. One thing is certain, though; we need to fix it. The major producers of medical isotopes are all foreign companies operating outside the United States. Under the previous law, these companies were moving toward conversion to LEU, and many have developed the capability to produce medical isotopes from LEU. Australia and the Netherlands are two good examples. The other major producer of medical isotopes is in Canada. That Canadian company has resisted conversion to LEU and in 2005 that company had enough HEU-material stockpiled to build at least four bombs. Today, who knows how much it may have stockpiled. One thing we do know is, if this material is lost or stolen, the United States would be faced with a serious nuclear threat. We must rectify this mistake. I urge my colleagues to adopt this amendment. I yield the floor. I suggest the absence of a quorum.

Mr. KYL

Mr. KYL. Mr. President, I answer my friend and colleague from Pennsylvania that I disagree with a lot of jury verdicts and with a lot of court opinions. But once a matter is concluded, as officers of the court, we are supposed to respect the decision of the court. I do. I don't know the facts of every case that has been litigated, but they have done so under a procedure that has been upheld as constitutional. Just as I was willing to stipulate that Justice Scalia probably has a better handle on Supreme Court interpretation than either--well, I didn't stipulate that he has a better interpretation than Senator Specter, but I acknowledged in my case that he would--I think you have to say that if a court of appeals has made such a decision, then it is a bit presumptuous for us, with great confidence, to say that they necessarily were wrong. So I am not going to second guess a decision like that. I would rather simply point to the most recent decision which upheld the procedures in the Al-Odah case--that case will be decided by the U.S. Supreme Court. My colleague and I have a different view, I suspect, as to how that case will come out. We will just have to wait and see. If it turns out that I am correct, that the court of appeals' decision is correct, then this debate which we have had here probably won't matter. But I do believe that until that decision is made, it would be unwise for us to again change the law, thus throwing into even greater confusion what has up to now been a pretty confused state of affairs.

Mr. KYL. Mr. President, this is going to sound too much like the mutual admiration society, but before Senator Specter said what he said, I rose because I wanted, in return, to pay him a compliment. As chairman of the Judiciary Committee prior to the last election, he performed admirable service to the Senate. I think it is not well known that that kind of a job requires a lot of different skills to be employed to deal with a lot of cantankerous Senators who have their own ideas about how things should be done. Senator Specter always conducted that committee in a way which allowed us to get business done, and respected the rights of Senators. Far too often, debate, or what passes for debate in this Chamber, is speeches given by Senators on different points of view, like ships passing in the night with no joining of the issues, and no serious discussion of complex legal issues, when that should be required. Certainly the Presiding Officer would be well qualified to judge what I am saying. But I always appreciated the opportunity, even when we were in disagreement, to discuss and to debate with the Senator from Pennsylvania, because he is a serious scholar who takes these matters seriously. He may not always come up with legal theory with which I agree, but it is always interesting to debate him. At the end of the day, I would like to think this kind of debate does add to a record that the Court or other observers might actually find informative and helpful in their decisions. Again, while we disagree with each other on this matter, I think it is apparent that we do so respectfully and with regard for each other's opinions. I want to say there is no greater expert in our body on military law than the Senator from South Carolina. I have always appreciated his wise advice and counsel on these matters as well.

Mr. KYL. Mr. President, let me just try to respond very briefly to the question of the Senator. Again, I regret I didn't hear the full argument that was made yesterday.

Mr. KYL. I am happy to yield.

Mr. KYL. Mr. President, I will respond very briefly by saying, first of all, I fully associate myself--

Mr. KYL. Mr. President, I would say to my colleague that nothing in the grant of the writ in the Constitution, as far as I know, would deny the right of Congress to expand it to include others. Certainly, one could not take away from the writ as it was understood when it was put into the Constitution. For example, we could not deny to U.S. citizens the writ of habeas corpus because of the constitutional provision, but it would not speak to the question of whether Congress could extend the authority of the writ to aliens. The case here, however, is that the decision in question was based on a statute which Congress had adopted, and it does not go to the question of whether the writ itself ever applied to aliens. In fact, it never applied to alien enemy combatants.

Mr. KYL. Mr. President, the answer is no, I was not. I regret I didn't hear the argument of the Senator yesterday.

Mr. KYL. Mr. President, I will stipulate to that.

Mr. KYL. Mr. President, first of all, I appreciate both the courtesy of the Senator from Pennsylvania and his important legal analysis and would answer the question in this way. I think that most observers believe that the Rasul decision is not a decision on the Constitution but on the statute; that it interprets rights based upon the statute, which Congress can change; that it is not a holding that provides a constitutional right to alien enemy combatants to litigate via habeas corpus. Secondly, the Great Writ that has been quoted by the Senator from Pennsylvania has always been understood in decisions of the court to be defined as it existed at the time of the Constitution. That is why there is always a great interest in looking back to decisions in the common law of England prior to the adoption of our Constitution, the Bill of Rights. I think, as I said in my statement, that there has never been a case that suggests that at the time the language about habeas corpus was put into our Constitution any court, in either the United States or England, at the time, had ever held that the writ applied to alien enemy combatants. So it has never been held that the writ applies to aliens. It has been held that it applies to U.S. citizens, and it has certainly never been held that it applies to alien enemy combatants.

Mr. KYL. Mr. President, I would have to go back and read it very closely, but my recollection is that the court found the statute rather uninformative and rather unclear, and that was part of the basis for the court reading it in a way that went beyond what I thought it provided. Nonetheless, one can understand that when the court views a statute that doesn't provide clear limitations, its inclination may well be to lean forward in its interpretation.

Mr. KYL.--with the comments of my colleague from South Carolina yesterday. To the first point, if I could just make a brief comment, after the Rasul decision, after the Rasul case was decided--

Mr. KYL. No coaching. After the Rasul case was decided, I am sure, Senator Specter, you would agree it was important for the Department of Justice to advise people of the rights that were provided as a result of that decision. That is my understanding of what they did. They had a policy of saying: The Court has made this decision. They found a statutory right of habeas corpus, and you have the right to do the following things under that statute. But that would not be a pronouncement of law by the Department of Defense. Certainly it hasn't been relied upon, to my knowledge, by any court in deciding what the scope of the writ is. So, as to your first point, I hardly think it is good evidence of the constitutional application of the writ to detainees that after the Rasul decision, the Department of Justice properly advised people as to their statutory rights based upon that decision. As to the second question--just one quick quotation. This was provided to me, at my request, by Senator Graham. In the Hamdi case, in the O'Connor opinion, she specifically answers the question you posed, Senator Specter, on page 27 of the opinion, where she says: Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence so long as that presumption remained a rebuttable one and a fair opportunity for rebuttal were provided.

Mr. KYL. Mr. President, yesterday afternoon, our colleague Senator Specter criticized the decision of the U.S. Court of Appeals for the District of Columbia in the Al Odah v. U.S. case. That decision upheld the recently enacted Military Commission Act's bar on lawsuits brought by enemy combatants held at Guantanamo Bay. Senator Specter argued that the Guantanamo detainees have a constitutional right to bring these lawsuits, and he predicted that Al Odah will be overruled. He based his argument largely on the Supreme Court's 2004 decision in Rasul v. Bush. Senator Specter argued that Rasul's ruling that habeas extends to Guantanamo Bay was a constitutional ruling. Senator Specter based his argument on Rasul's discussion of the 18th century common law of habeas corpus. Senator Specter also argued that Justice Scalia's opinion in Rasul acknowledged that Rasul overruled Johnson v. Eisentrager, the landmark decision establishing that captured enemy combatants do not enjoy the privilege of litigation. I will address each of Senator Specter's argument in turn. At the outset, however, I would like to note that last September, Senator Specter argued that a passage from the plurality opinion in the 2004 decision in Hamdi v. Rumsfeld established that all aliens held in the United States, regardless of combatant status, are constitutionally entitled to seek writs of habeas corpus. In response at that time, I argued that Hamdi did not effect such a radical result. I noted that the holding of Hamdi clearly only involved U.S. citizens; that the notion of extending habeas to aliens based on territorial distinctions was inconsistent with the logic of Hamdi; and that Senator Specter's reading of Hamdi was inconsistent with basic rules of construction that urge against reading groundbreaking new rules into obscure and ambiguous passages of opinions. I am pleased to see that, today, Senator Specter has not renewed the argument that Hamdi extended habeas rights to noncitizen enemy soldiers. I will assume that he was persuaded by the force of the arguments that I made last September. Today, allow me to try to persuade Senator Specter, and the rest of my colleagues, that the majority opinion in Rasul v. Bush does not require that the constitutional guarantee of habeas corpus be extended to alien enemy combatants who are being detained during wartime. Section 7 of the Military Commissions Act, like its predecessor, the Detainee Treatment Act, is predicated on the continuing validity of Johnson v. Eisentrager's constitutional holding, on the unbroken common-law tradition of denying the privilege of litigation to captured alien enemy soldiers, and on the understanding that the holding in Rasul v. Bush was a statutory holding, not a constitutional one. Neither Senator Specter, nor anyone else, has been able to cite a single case prior to Rasul v. Bush in which any English or American court has ever held that captured enemy soldiers who are not citizens are entitled to seek the writ of habeas corpus. Not one case can be cited that grants the writ to alien enemy soldiers. The absence of any such example over the centuries of the history of the writ of habeas corpus speaks volumes, and alone should be conclusive of the constitutional question. Simply put, when the Constitution was adopted, the notion that the common law writ of habeas corpus could be employed by alien enemy soldiers was unheard of and it remained unheard until June of 2004, when the Supreme Court decided Rasul v. Bush. Of course, with 5 votes, the Rasul Court could have grafted a habeas right for alien enemy combatants onto the Constitution. I believe that to do so would have been deeply irresponsible, and I believe that this is clearly not what the court did in Rasul. In support of his interpretation of Rasul, Senator Specter argued that Justice Scalia's opinion in Rasul noted that the Rasul majority overruled Eisentrager, which had denied litigation rights to alien enemy combatants. In response, I would first note that Justice Scalia's opinion in Rasul was a dissenting opinion. As any lawyer knows, a dissenting opinion's characterization of a court's holding is hardly authoritative. An argument about what a case means that is based primarily on the dissent is inherently a weak argument. Moreover, I do not think that Justice Scalia's dissenting opinion in Rasul is in any way inconsistent with the notion that Eisentrager's constitutional holding remains good law, and that the constitutional right of habeas corpus does not extend to alien enemy soldiers. Justice Scalia makes clear in his dissent that he is accusing the majority only of overruling Eisentrager's statutory holding, not its constitutional holding. Justice Scalia begins at page 493 of his dissent by quoting the following passage from Eisentrager: ``Nothing in the text of the Constitution extends such a right''--a right of habeas corpus for war prisoners held overseas--``nor does anything in our statutes.'' It is Justice Scalia who italicized the absence of a statutory right when quoting this passage. He then went on to note: Eisentrager's directly-on-point statutory holding makes it exceedingly difficult for the Court to reach the result it desires today. To do so neatly and cleanly, it must either argue that our decision in Braden overruled Eisentrager, or admit that it is overruling Eisentrager. In this passage, Justice Scalia does accuse the Rasul majority of overruling Eisentrager, but he also makes clear that he only accuses it of overruling Eisentrager's statutory holding, not its constitutional holding. But the argument that Rasul v. Bush's holding was only statutory, and did not extend constitutional rights to enemy combatants, is supported by more than just Justice Scalia's dissent. The majority opinion itself repeatedly and clearly indicates that the holding in that case is only statutory, not based on the Constitution. For example, on page 475 of the opinion, for example, the majority clearly states that ``[t]he question now before us is whether the habeas statute confers a right to judicial review'' of the detention of the detainees at Guantanamo Bay. Thus the court was careful to make clear that it was the habeas statute that it was interpreting, not the Constitution. On the next page, when distinguishing Eisentrager, the Rasul majority opinion states that ``Eisentgrager made quite clear that [its analysis was] relevant only to the question of the prisoner's constitutional entitlement to habeas corpus. The court had far less to say on the question of the petitioner's statutory right to habeas corpus.'' Finally, at page 478, when explaining how it would distinguish the holding in Eisentrager, the majority stated: ``Because subsequent decisions of this Court have filled the statutory gap that had occasioned Eisentrager's resort to ``fundamentals,'' persons detained outside the territorial jurisdiction of any federal district court no longer need rely on the Constitution as the source of their right to federal habeas review.'' This statement could not be clearer that Rasul only addressed the petitioners' statutory right to habeas, not any constitutional right. The court stated that statutory changes--or rather, changes in the interpretation of statutes--made it unnecessary to reach any constitutional questions in Rasul. Senator Specter's other main argument for his interpretation of Rasul is that the majority opinion's discussion of 18th century common law is a constitutionally binding interpretation of the scope of the writ. My response is that may be so, but it is not relevant to the constitutionality of the Military Commissions Act. The discussion in Rasul that Senator Specter cites is about how far the writ applies overseas. It is not about whether the writ applies to alien enemy soldiers. Rasul's discussion of the common law of habeas corpus appears in Part IV of the majority decision--after the court had already decided that the statutory right extended to the detainees at Guantanamo. This part of Rasul is devoted to responding to the argument that the presumption against extraterritorial application of legislation requires that the habeas statute be construed to not extend to Guantanamo Bay. Justice Stevens stated that ``[w]hatever traction the presumption against extraterritoriality might have in other contexts, it certainly has no application to the operation of the habeas statute with respect to persons detained within `the territorial jurisdiction' of the United States.'' Justice Stevens then asserted that at common law the writ applied to aliens held overseas, and he went on to describe common law cases that he characterized as extending the writ to aliens held at places outside of the ``sovereign territory of the realm.'' Whatever the merits of Justice Stevens's historical analysis, it is used in Rasul only to rebut the presumption against extraterritoriality. It is used to argue that the writ presumptively does extend overseas. But this part of Rasul does not address the central question raised by the Military Commissions Act: whether alien enemy soldiers, wherever they are held, are constitutionally entitled to seek the writ of habeas corpus. Regardless of whether the writ applies to other aliens held at U.S. facilities overseas, the writ does not--it has never been extended--to alien enemy combatants detained during wartime, whether those soldiers are held inside or outside of the United States. None of the common law decisions that Justice Stevens discusses in part IV of his opinion granted habeas relief to an alien enemy war prisoner. That is because, as I noted earlier, in the history of habeas corpus, prior to Rasul, alien enemy war prisoners have never been found to be entitled to the writ. Rasul's historical analysis can be cited for the proposition that the writ extends extraterritorially, even to aliens. But its discussion does not address the question that we are concerned with here today: whether the writ extends to alien enemy soldiers. Indeed, at one point in its discussion, the Rasul opinion does tend to confirm that the common-law habeas right does not extend to enemy soldiers. In its exploration of the scope ``historical core'' of the common-law writ, Rasul quotes a passage from the Supreme Court's prior decision in Shaughnessy v. United States, which noted that executive imprisonment has long been considered oppressive and lawless, and that no man should be detained except under ``the law of the land.'' As Rasul notes, this commentary on the historical scope of the writ came from Justice Jackson. Just 3 years before he wrote the passage in Shaugnessy that is quoted in Rasul, here is something else that Justice Jackson said about the scope of the writ. Here is what Justice Jackson said in Johnson v. Eisentrager about the notion that the writ extends to alien enemy war prisoners: ``No decision of this Court supports such a view. None of the learned commentators on our Constitution has ever hinted at it. The practice of every modern government is opposed to it.'' So there you have it, from the same source that the Rasul majority quotes to establish the historical scope of the writ. The writ upholds and enforces the law of the land, but the law of the land does not extend litigation privileges to aliens with whom we are at war. Let me also cite another, more recent source in support of my argument. Yesterday, Senator Specter quoted an editorial from the New York Times that, unsurprisingly, was hostile to the Military Commissions Act and the Administration. In response to Senator Specter's liberal columnist, allow me cite my own liberal columnist Benjamin Wittes. Mr. Wittes writes op-eds for the Washington Post, is a scholar at the Brookings Institution, and generally has unimpeachable liberal credentials. I doubt that he and I agree on very many things. Yet this is what he had to say, in a recent column in The New Republic, about the D.C. Circuit's decision in Al Odah upholding the Military Commissions Act: The [Al Odah] court held both that Congress--not the executive branch--stripped the courts of jurisdiction to hear lawsuits from detainees at Guantanamo, and that it had the constitutional power to do so. As a legal matter, the decision is correct. And, if and when the Supreme Court reverses it, as it may do, the decision won't be any less correct. The reversal will signify only that a majority of justices no longer wishes to honor the precedents that still bind the lower courts. As the case heads towards the Supremes, you'll no doubt hear a lot about suspension of the Great Writ of habeas corpus--the ancient device by which courts evaluate the legality of detentions. And you'll also hear a lot about Guantanamo as a legal ``black hole.'' It's all a lot of rot, really, albeit rot a majority of the justices might well adopt. Until the advent of the war on terrorism, nobody seriously believed that the federal courts would entertain challenges by aliens who had never set foot in this country to overseas military detentions--or, at least, nobody thought so who had read the Supreme Court's emphatic pronouncement on the subject. ``We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction,'' the Court wrote in 1950. ``Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.'' A final passage from Mr. Wittes Commentary reads as follows: Notwithstanding the passionate dissent in the D.C. Circuit case, the notion that [the Military Commissions Act] somehow suspends the writ--a step the Constitution forbids except in cases of rebellion or invasion--is not credible. As a legal matter, it merely restores a status quo that had been relatively uncontroversial for the five decades preceding the September 11 attacks--that federal courts don't supervise the overseas detentions of prisoners of war or unlawful combatants. The demand that they do so now is not one the Constitution makes. I would also like to address a point that Senator Sununu made on the floor yesterday. Senator Sununu argued that, because detention of the Guantanamo prisoners may be indefinite, these prisoners should be given a right to challenge their detention. In response, I would like to simply describe the protections that the CSRT process provides to Guantanamo detainees and discuss why it would be highly problematic to substitute that process with habeas review. In the CSRT system, a detainee is provided with a personal representative who is assigned to help him prepare his case before the tribunal. CSRT hearings also include a hearing officer who is required to search government files for ``evidence to suggest that the detainee should not be designated as an enemy combatant.'' Prior to the actual hearing, the CSRT officers must provide the detainee with a summary of the evidence to be used against him. CSRTs are then subject to administrative review, and the detainee has an appeal of right to the U.S. Court of Appeals for the District of Columbia, which is charged with evaluating whether the tribunal complied with the CSRT rules, and whether those rules and procedures are constitutional. All of the procedures described here, incidentally, are above and beyond what lawful prisoners of war are entitled to under the Geneva Conventions in an Article 5 hearing. Those hearings do not assign anyone to help a detainee, they do not require the government to search its files for exculpatory evidence, they do not require that a summary of the incriminating evidence be provided to the detainee, and they are not subject to any judicial review whatsoever. Indeed, the CSRTs not only provide more process than is required under the Geneva Conventions; the CSRTs require more process than the Supreme Court has suggested is required for the United States to detain even a U.S. citizen as an enemy combatant. In the governing plurality opinion in the 2004 Hamdi decision, the Supreme Court suggested that even a U.S. citizen could be detained as a war prisoner if his detention were reviewed by a ``properly constituted military tribunal.'' The Supreme Court expressly cited as an example of such a tribunal the Article 5 hearings that are conducted under the Geneva Conventions in cases where there is doubt about a detainee's status. The CSRTs are modeled on and closely track these Geneva Convention Article 5 hearings. And, as I just described, in several respects the CSRT process provides even greater protections than an Article 5 hearing provides. The Military Commissions Act, of course, does not apply at all to United States citizens. Out of deference to the force of the legal argument made by Justice Scalia in Hamdi v. Rumsfeld, both the DTA and the MCA were drafted to only bar aliens from seeking habeas relief, not United States citizens. And, again, the CSRT hearings that alien enemy combatants do receive provide even more process than the Hamdi plurality suggested is owed to an American citizen. Nevertheless, the detainees and their lawyers are unsatisfied with the CSRT process. They want to give Al Qaeda detainees the right to see classified evidence related to their detention, and they want to allow the detainee to call his own witnesses. In a recent column in the National Journal, Stuart Taylor, Jr. cites a strong example of why it would be a very bad idea to share classified information with suspected Al Qaeda detainees. Mr Taylor writes: Consider the list of almost 200 un-indicted co- conspirators, including the then-obscure Osama bin Laden, that prosecutors in the 1995 trial of 11 subsequently convicted Islamist terrorists were legally required to send to defense counsel. ``That list was in downtown Khartoum within 10 days,'' U.S. District Judge Michael B. Mukasey of Manhattan, who tried the case, recalled in a recent panel discussion. ``And he [bin Laden] was aware within 10 days * * * that the government was on his trail.'' Mr. Taylor goes on to cite another example where the release of sensitive information to a suspected terrorist in the course of legal proceedings endangered national security: In another judge's case, [Judge] Mukasey recalled, ``there was a piece of innocuous testimony about the delivery of a battery for a cell phone;'' this tipped off 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. Mr. President, it is incidents like this that we must keep in mind when presented with demands that suspected al-Qaida or Taliban members be allowed to pursue habeas litigation. In civilian litigation, a criminal defendant has a presumptive right to see classified evidence used against him. Under CIPA, the Government must summarize or redact the evidence, but the summary or redaction must still provide an adequate substitute for the raw evidence. If the substitute is not deemed adequate, the Government must either show the evidence to the detainee or it cannot use the evidence. In the context of Guantanamo, where detention hearings rely heavily, if not exclusively, on classified evidence, applying these habeas litigation rules would mean that we would have to either share classified information with al-Qaida detainees or we would have to let them go. Neither of these is an acceptable option. Even the fiercest critics of Guantanamo must accept that the bulk of the detainees held there are connected to al-Qaida or other terrorist groups. We cannot simply seal off these detainees from all contact with the world and assume that we will hold them forever. We must assume that some will be released and that they will be allowed some communication with those outside Guantanamo and, under these circumstances, we simply cannot hand over classified evidence to Guantanamo detainees. As happened during the embassy bombers' trials, we must assume that classified evidence provided to the detainees will go straight back to the rest of al-Qaida. I should also emphasize that denying an al-Qaida detainee access to classified information does not mean that such evidence will not be subject to any adversary review in the CSRT and DTA process. In the pending Bismullah case, the Government has proposed a procedural order under which a detainee counsel who has obtained a security clearance would be able to review the classified evidence in the CSRT hearing. If this proposed order is adopted, as I assume it will be in some form, the detainee's lawyer, though not the detainee himself, will have access to the classified information used in the CSRT. So when you hear evidence or arguments that the DTA review is unfair or that it is inadequate, keep in mind the actual stakes at issue. The detainee's cleared lawyer will get access to the classified information, but the detainee will not. Under these circumstances, should the Congress force the military to provide classified information to both the lawyer and the suspected terrorist? Another complaint about CSRTs is that the Guantanamo detainees are not allowed to call their own witnesses at the hearings. Just who would those witnesses be the detainees would call? Whose testimony would be most relevant to the detainee's enemy combatant status? The only answer to this question would be the soldier who originally captured the detainee. Here is Mr. Stuart Taylor's commentary on the proposal that Guantanamo detainees be allowed to compel witnesses at their CSRT hearings: Should a Marine sergeant be pulled out of combat and flown around the world to testify at a detention hearing about when, where, how, and why he had captured the particular detainee? What if the Northern Alliance or some other ally made the capture? And should the military be ordered to deliver high-level al Qaeda prisoners to be cross-examined by other detainees and their lawyers? I would suggest that simply to ask this question is to answer it. Here is more that Mr. Taylor had to say about such proposals: Many libertarians and human rights activists, on the other hand, would settle for nothing less than the full panoply of protections afforded to ordinary criminal defendants. They should be careful what they wish for. As McCarthy points out: Enemy combatants are often in a position to be killed or captured. Capturing them is the more merciful option, and making it more difficult or costly would almost certainly effect an increase in the number killed. The CSRT hearings and the DTA review strike the right balance. They give detainees enough process to ensure that the persons held are enemy combatants and that they pose no threat to the United States. But this system does not provide a process that would undermine the war with al- Qaida or that is inconsistent with the realities of war.

Mr. KYL

Mr. KYL. Mr. President, I want to talk about a couple of the amendments that we have to the so-called 9/11 bill that is pending--an amendment which I hope can be adopted, one of which I talked about yesterday, which deals with the support for terrorists. Believe it or not, we don't have adequate criminal penalties for people who support rewarding terrorists for their actions or their families or those who support them. So one of the things we want to do is to ensure that we have a statute that can be enforced that says, if you are aiding the family or associates of a terrorist with the intent to encourage terrorist acts, that will be a crime prosecutable in the United States. I talked yesterday about an example that illustrates the need for this statute. In August of 2001, a Palestinian suicide bomber attacked the Sbarro pizza parlor in Jerusalem, and 15 people were killed. One of them was an American citizen, Shoshana Greenbaum, who was a schoolteacher, and she was pregnant. She was killed. Right after the bombing took place, the family of the suicide bomber was told to go to a particular Arab bank, and the bomber's family began receiving money from that bank. Eventually, a $6,000 lump sum payment was made. According to press accounts, this is not uncommon. In fact, it is frequently the way suicide bombers have been funded through this particular Arab bank. Others are funded in other ways. There are plenty of news accounts of Saudi charities, the Palestinian Authority, and even Saddam Hussein was known to have rewarded suicide bombers for their acts. There is a BBC report that Saddam Hussein paid a total of $35 million to terrorist families during their time. Obviously, we would like to discourage that. It is at least possible that if we can criminalize this activity that has a relationship to Americans, we would be able to make a difference, at least in some instances, in terms of whether a person would actually decide to commit a suicide bombing, based upon the fact that that person's family was going to be recompensed. This amendment would make it a Federal crime, with extraterritorial jurisdiction in cases linked to U.S. interests, to pay the families of suicide bombers and terrorists with the intent to facilitate a terrorist act. I hope this amendment can be adopted and that it will survive a conference committee. I see no reason that we could not have bipartisan support for it. The other thing that this amendment does is deal with the real workhorse of our law enforcement with respect to going after terrorists, the so- called material support statutes. It increases the maximum penalties for various material support statutes. I emphasize it increases the maximum, not the minimum, because there are certain situations in which sometimes you want to charge the minimum or plead down to the minimum. We don't want to affect that; we want to increase the maximum in certain instances. The material support statutes have been the Justice Department's workhorse in the war against terror, counting for a majority of the prosecutions that the Department has brought. It has been very effective, also, in starving terrorist groups of resources, which is one of the critical ways to disrupt the cells, we believe. The amendment increases the penalty in the following ways: Giving material support for a designated terrorist organization would be a maximum of 25 years, up from 15. Material support in the commission of a particular terrorist act is increased from a maximum number of 15 to a maximum of 40 years. That can obviously be a very severe act against U.S. interests. The maximum penalty for receiving military-type training from a foreign terrorist organization would be increased from 10 to 15 years. The amendment also adds attempts and conspiracies to the substantive offense of receiving military-type training and denies Federal benefits to persons convicted of terrorist offenses. All of these are designed to add to the ability of our prosecutors to go after people who are actually the ones who are enabling the terrorists to perform their heinous acts. Finally, the amendment expands existing proscriptions on the murder or assault of U.S. nationals overseas for terrorist purposes, so that the law punishes attempts and conspiracies to commit murder equally to the substantive offense. The amendment adds a new offense of kidnapping a U.S. national for terrorist purposes, regardless of whether a ransom is demanded. There are some limits in existing law that were put in the act before the new techniques and methodologies of terrorists in today's world began to be implemented; for example, requiring a ransom. We know today that some of these terrorist kidnappings are not for the purpose of getting ransom, they are for the purpose of terrorizing. If that is the case, then this statute would be usable by our law enforcement authorities. Finally, the amendment adds sexual assault to the types of injury that are punishable under the existing offense of assaults that result in serious bodily injury. Once again, I hope this will be considered an appropriate addition to the 9/11 legislation to make it easier for us to deny the funding to terrorist organizations and to deny funding to people who would be engaged in suicide attacks. The other amendment is an amendment to a provision of the bill that was added by Senator Feingold relating to data mining, which requires every Federal agency to submit reports to Congress on any search of a database that its employees perform in order, and I am quoting now, ``to discover or locate a predictive pattern or anomaly indicative of terrorist or criminal activity.'' Among other things, the report is required to include a thorough description of the data-mining technology that is being used or will be used. Obviously, that probably is going to be getting into very classified information, and there are two things we want to ensure are changed in this provision. For one thing, the language in the bill does not include language that is included in other sections. It does not prevent disclosure of existing patents, trade secrets, proprietary business processes or intelligence sources and methods. I suspect that is an oversight. We need to include that because, in the past, when Congress has required the Executive to make reports on sensitive technologies to Congress, it has been careful to prevent the exposure of this type of information about patents and trade secrets, and so on. I hope we can include that in the legislation, and my staff has been talking to Senator Feingold's staff to see if they would be willing to do so. The other aspect is trying to protect the information that is classified. Originally, there was a concern that we were too broad with our proscription in trying to prevent classified information from being released to the public. So what we did was to modify the amendment to simply require that in the case of disclosure by Members of Congress or staff, this would be impermissible for classified information. If we are going to ask for reports of classified information, clearly, we should be willing to enforce the proscription on the release of that information. I am hoping we would be willing to do that as well. That is the second amendment. I hope my colleagues will be willing to support both amendments. I think they will add to the benefits of this legislation. With respect to at least one of these amendments, it is germane postcloture, but I am hoping we can get them both resolved before cloture is invoked on the bill. Mr. President, I yield the floor.

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

Mr. KYL

Mr. KYL. Mr. President, first I have a modification of my amendment No. 357 I would like to send to the desk. That amendment has already been offered.

Mr. KYL. Mr. President, at this point I wish to briefly address another amendment, amendment No. 317, which is already pending. This is an amendment which would prohibit rewarding families of suicide bombers for such attacks and stiffen penalties for other terrorist crimes. This is one we can hopefully adopt on a bipartisan basis. It would create the new offense of aiding the family or associates of a terrorist with the intent to encourage terrorist acts. It is targeted at those individuals who give money to the families of suicide bombers after such bombings. The amendment would make it a Federal offense to do so if the act can be connected to the United States and if the defendant acted with the intent to facilitate, reward, or encourage international acts of terrorism. Let me offer an example of why this amendment is necessary. In August of 2001, a Palestinian suicide bomber attacked a Sbarro pizza parlor in Jerusalem. Among those killed was an American citizen, Shoshana Greenbaum, who was a schoolteacher and who was pregnant at the time. Shortly after this bombing took place, the family of the suicide bomber was told to go to the Arab Bank. The bomber's family began receiving monthly payments through an account at that bank and later received a lump payment of $6,000. According to press accounts, this is not the only time Arab Bank has funneled money to the families of suicide bombers. One news account describes a branch of the bank in the Palestinian territories whose walls are covered with posters eulogizing suicide bombers. According to other news accounts, these suicide bombers in the Palestinian territories are recruited with the promises that their families will be taken care of financially after the attack. Saudi charities, the Palestinian Authority, and even Saddam Hussein have rewarded suicide bombers' families for their acts. According to one account, Saddam Hussein paid $35 million to terrorists' families during his time. Obviously, his actions are no longer of concern, but we should all be deeply concerned about other wealthy individuals and financial institutions that continue to pay out these rewards. It is undoubtedly the case that in some instances, these payments make the difference in whether an individual will commit a suicide bombing. My amendment will make it a Federal crime, with extraterritorial jurisdiction in cases that can be linked to U.S. interests, to pay the families of suicide bombers and other terrorists with the intent to facilitate terrorist acts. My amendment also makes other improvements to the antiterrorism laws, primarily by increasing the maximum penalties for various aspects of the material support offenses, which already exist in law. I hope, as I said, my colleagues will view this as an amendment which we can adopt on a bipartisan basis. It is an important amendment to ensure that another avenue of terrorism can be shut off. I ask for my colleagues' affirmative consideration of this amendment No. 317, and I thank the Senator from Oklahoma for his courtesies extended to me.

Mr. KYL

Mr. KYL. I send a second amendment to the desk.