Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, today I am pleased to join with Senators Ensign, Feinstein and Reid to introduce the Lower Colorado River Multi- Species Conservation Program Act. This bipartisan legislation is designed to protect and maintain wildlife habitat on the lower Colorado River and to provide assurances to the affected water and power agencies of Arizona, California, and Nevada that their river operations may continue upon compliance with the underlying program. This bill is nearly identical to legislation I introduced late last year with Senators Ensign, Feinstein, and Reid. The Lower Colorado River Multi-Species Conservation Program, otherwise known as the MSCP, is a comprehensive, cooperative effort among 50 Federal and non-Federal entities in Arizona, California, and Nevada whose purposes are to 1. protect the lower Colorado River environment while ensuring the certainty of existing river water and power operations; 2. protect threatened endangered wildlife under the Endangered Species Act; and 3. prevent the listing of additional species on the lower Colorado River. To accomplish these goals, the MSCP will create more than 8,100 acres of riparian, marsh, and backwater habitat and implement additional measures to protect 26 endangered, threatened and sensitive species. The program covers approximately 400 miles, including the full-pool elevations of Lake Mead to the United States-Mexico Southerly International Boundary. The program costs will be spread over 50 years, and split 50-50 between the Federal Government and the non-Federal entities covered by MSCP. Arizona and Nevada will each bear 25 percent of the non-Federal costs and California will bear 50 percent of the non-federal costs. Although implementation of the program began in April 2005 under the U.S. Department of the Interior's existing authority, legislation is needed to protect the substantial financial commitments that the non- Federal parties are making to species protection . To that end, the bill 1. expressly authorizes appropriations to cover the Federal share of the program costs; 2. directs the Secretary of the Interior to manage and implement the MSCP in accordance with the underlying program documents; and 3. provides a waiver of sovereign immunity to allow the non-Federal parties to enforce, if necessary, the underlying program documents. The waiver, however, does not allow an action to be brought against the United States for money damages. Late in 2006, the House Committee on Resources, Subcommittee on Water and Power held a comprehensive field hearing in Arizona on the MSCP Act. The hearing highlighted the significance of the program to Colorado River users in Arizona, California, and Nevada and demonstrated the strong support for the legislation. Unfortunately, Congress adjourned before it could take action on the bill. We hope for its swift passage in the 110th Congress.

Mr. KYL

Mr. KYL. Mr. President, today I am pleased to join with Senators Ensign, Feinstein and Reid to introduce the Lower Colorado River Multi- Species Conservation Program Act. This bipartisan legislation is designed to protect and maintain wildlife habitat on the lower Colorado River and to provide assurances to the affected water and power agencies of Arizona, California, and Nevada that their river operations may continue upon compliance with the underlying program. This bill is nearly identical to legislation I introduced late last year with Senators Ensign, Feinstein, and Reid. The Lower Colorado River Multi-Species Conservation Program, otherwise known as the MSCP, is a comprehensive, cooperative effort among 50 Federal and non-Federal entities in Arizona, California, and Nevada whose purposes are to 1. protect the lower Colorado River environment while ensuring the certainty of existing river water and power operations; 2. protect threatened endangered wildlife under the Endangered Species Act; and 3. prevent the listing of additional species on the lower Colorado River. To accomplish these goals, the MSCP will create more than 8,100 acres of riparian, marsh, and backwater habitat and implement additional measures to protect 26 endangered, threatened and sensitive species. The program covers approximately 400 miles, including the full-pool elevations of Lake Mead to the United States-Mexico Southerly International Boundary. The program costs will be spread over 50 years, and split 50-50 between the Federal Government and the non-Federal entities covered by MSCP. Arizona and Nevada will each bear 25 percent of the non-Federal costs and California will bear 50 percent of the non-federal costs. Although implementation of the program began in April 2005 under the U.S. Department of the Interior's existing authority, legislation is needed to protect the substantial financial commitments that the non- Federal parties are making to species protection . To that end, the bill 1. expressly authorizes appropriations to cover the Federal share of the program costs; 2. directs the Secretary of the Interior to manage and implement the MSCP in accordance with the underlying program documents; and 3. provides a waiver of sovereign immunity to allow the non-Federal parties to enforce, if necessary, the underlying program documents. The waiver, however, does not allow an action to be brought against the United States for money damages. Late in 2006, the House Committee on Resources, Subcommittee on Water and Power held a comprehensive field hearing in Arizona on the MSCP Act. The hearing highlighted the significance of the program to Colorado River users in Arizona, California, and Nevada and demonstrated the strong support for the legislation. Unfortunately, Congress adjourned before it could take action on the bill. We hope for its swift passage in the 110th Congress.

Mr. KYL

Mr. KYL. Mr. President, I rise today to express my regret that nominations to the U.S. Courts of Appeals will not be resubmitted for William G. Myers, Judge Terrence Boyle, William J. Haynes, and Michael B. Wallace. All four of these nominees were eminently qualified to serve on the U.S. Court of Appeals and no reasonable question has been raised as to their integrity. Each of them very likely would have been confirmed had they been afforded to the courtesy of a vote by the U.S. Senate. It is generally understood that the Senate did not vote on these nominations because of Democratic threats of obstruction and filibuster, and that the President chose not to resubmit these nominations as a result of a hard political calculation that the new Democratic majority in the Senate would not allow a vote on these nominations during the remainder of his Presidency. These nominees were not treated fairly by this institution. This week's action reflects poorly on the Senate. Much could be said about each of these nominees, their qualifications, and the way that they were treated throughout the judicial nominations process. I would like today to simply submit for the Record a column published by Edward Whelan in National Review Online. Mr. Whelan's column raises some disturbing questions about the American Bar Association's actions with regard to Michael B. Wallace, whom the President had nominated to the U.S. Court of Appeals for the Fifth Circuit. Mr. Wallace is a graduate of Harvard University and received his law degree from the University of Virginia, where he served on the law review and was elected to the Order of the Coif. He clerked for Justice William Rehnquist on the United States Supreme Court. He became an associate and later a partner at a major law firm in his home state of Mississippi. His over twenty years of legal practice focused on complex commercial and constitutional litigation and afforded him substantial appellate experience. Mr. Wallace even argued and won a case before the United States Supreme Court. These are obviously superb qualifications to serve on the U.S. Court of Appeals. It is generally understood that the ultimate reason why Mr. Wallace's nomination has not been resubmitted is that he was rated ``not qualified'' by the ABA. on account of his ``temperament.'' Mr. Whelan's column paints a disturbing picture of the process by which the ABA. came to rate Mr. Wallace. Mr. Whelan presents persuasive evidence that the ABA not only allowed its evaluations process to be corrupted by individuals who used it to carry out personal and political vendettas against Mr. Wallace, but that the chairwoman of the ABA's judicial evaluations committee perjured herself in her testimony before the Senate Judiciary Committee. To Mr. Whelan's column, I would simply add that I found the ABA's written justification for its rating of Mr. Wallace to be stunningly unpersuasive. The grounds cited in the ABA's written testimony, to the extent that they provided any verifiable basis at all for the ABA's rating of Mr. Wallace, do not stand up to even the most cursory scrutiny. To cite just one example: the ABA found that Mr. Wallace lacked the ``temperament'' to be a judge in part because ``positions taken by Mr. Wallace related to the Voting Rights Act'' in the course of the Jordan v. Winter litigation were ``not well-founded and [were] contrary . . . to existing interpretations of the Voting Rights Act.'' Mr. Wallace had argued in the Jordan case that the 1982 amendments to the Voting Rights Act did not invalidate a State's redistricting plan absent some evidence that the plan was the product of racial discrimination. At the time that Mr. Wallace made this argument, the 1982 amendments were less than a year old. Moreover, when the very case that Mr. Wallace litigated went to the Supreme Court, two Justices of that Court filed an opinion that substantially agreed with Mr. Wallace's litigating position. These two Justices also noted that ``the language used in the amended statute is, to say the least, rather unclear.'' Mississippi Republican Executive Committee v. Brooks, 469 U.S. 1002, 1010, Rehnquist, J., dissenting. See also id. at 1012, ``we have a statute whose meaning is by no means easy to determine.'' Thus the ABA has rated Mr. Wallace as ``not qualified'' on the basis that he argued for a particular interpretation of a statute when the statute was new and was not yet subject to an authoritative interpretation, when Mr. Wallace's position was later adopted by two members of the U.S. Supreme Court, and when those same Supreme Court Justices characterized the statute as ``unclear.'' I find the ABA's analysis to be wholly unreasonable. It is a lawyer's duty to make good- faith arguments on behalf of his client. Yet in the case of Mr. Wallace, the ABA has effectively taken the position that if a lawyer argues for an interpretation of a statute that is ultimately rejected by the courts, then even if the statute is new and unclear and the lawyer's interpretation is even endorsed by some members of the U.S. Supreme Court, the lawyer's litigating position shows that he lacks a ``judicial temperament'' and that he is ``not qualified'' to serve as a Federal judge. This is a frivolous argument. It is an argument that the ABA should be embarrassed and ashamed to have made to the Senate Judiciary Committee. I ask unanimous consent that the following column be printed in the Record.

Mr. KYL

Mr. KYL. In response to the Senator from Oklahoma, that is the point I raised at the very end. It is not only a question of whether the President's new strategy has a chance to succeed, as he believes it does, but what is the alternative. If the alternative is leaving Iraq a failed state, I have barely scratched the surface of identifying the horrors that that would represent and the dangers to American national security that it would involve. We need to do a better job of articulating that alternative. As I see it, that is the only alternative that has been put forward to the President's new strategy. Amendments Nos. 11 and 13

Mr. KYL. I am happy to yield, again, to my friend.

Mr. KYL. Mr. President, the Senator from West Virginia has, again, asked the most fundamental of all questions. I am going to have to take some time to go into more detail about my answer to the question. But I think I have tried to answer one of the two questions: What is the U.S. security interest in achieving victory in Iraq? We know that the world in that region would be thrown into absolute chaos, with probably hundreds of thousands of casualties, if not more, if we leave Iraq a failed state. Even more directly to America's interests and to answer the question of how long will Americans support this effort is the danger that our momentum in the war on terror will be set back and will be dealt a tremendous blow if we leave Iraq a failed state and the terrorists are able to then move out from there and again become dominant in places such as Afghanistan and Pakistan, the Wahabis, and Saudi Arabia and so on. That would be a terrible blow to the progress we have made against these terrorists. Osama bin Laden has a saying about the weak horse and the strong horse. It has always been his view that we are a weak horse because we get out when the going gets tough--in Lebanon, in Vietnam, and in Mogadishu. He believes that just as he thinks he threw the Soviets out of Afghanistan, he can throw the United States out of all of this part of the world because we are the weak horse. If we confirm to the people in that region that he is right, because we will not stay in Iraq because of the difficulties we have confronted, then we will only validate the view that he has propounded and make it much more difficult for us to confront terrorists. To the question of how long Americans will continue to support this, I suspect that the answer is only so long as they believe there is a prospect for success and only so long as the hidden costs of failure remain hidden. We have not done as good a job as we need to, to say: All right, maybe this new strategy of President Bush won't work. He believes it will. There are new commitments from the Iraqi Government that suggest it will. We are going to be doing things differently. We believe this has a chance to succeed. We know one thing for sure; that is, the alternative, withdrawal, is a guarantee for failure. And what will that failure bring? Who wants the blood on his or her hands of the hundreds of thousands of people who are likely to be killed as a result of our leaving Iraq a failed state? Who wants to then ask the question of why it is that terrorists began to spread their evil ideology throughout that part of the world to be more effective in potentially attacking the United States, when, in fact, we have had them on the run? The evidence of what we did in Somalia is a good illustration. The fact that the London bombing about 6 months ago was thwarted is another good illustration of the fact that when we have good intelligence and when we have the ability to take the fight to the enemy, we make ourselves more secure. I appreciate the questions of the Senator from West Virginia. They go to the heart of this debate. I would hope that we will have the opportunity soon to expand on these questions and the answers to them and engage in the kind of debate that we haven't had up to now and this country needs in order to be able to make the decision of what kind of support it wants to give to the President or whether it wants to accept other points of view. I didn't deliver quite the remarks I intended, but I appreciate the comments of the Senator from West Virginia. I would be happy to engage in that discussion in the future.

Mr. KYL. Mr. President, I will be happy to yield to the distinguished Senator from West Virginia.

Mr. KYL. Secondly, since the Senator has remained on the Senate floor and asked that question a second time, I will go ahead and move to answer that question, and then come back to the other points I was going to make a moment ago. Basically, the Senator asked two questions: Why are we there in the first place; and, secondly, how is this strategy supposed to enable us to achieve the victory we seek to achieve? Let me answer that second question first, briefly, because the President talked about this last night. The concept that the President outlined was one that he had developed, or our forces in Iraq had developed with the Maliki government. And it was predicated on a commitment that the President received from the Iraqi Government that it would be willing to do some things differently in the future. Specifically, what? We appreciate until peace and stability come to Iraq, it is not going to be possible for that Iraqi Government to engage in the political and economic reforms that will be necessary for that society to move forward. How does one achieve peace and stability? For most of the country there is relative peace. But everyone agrees in Baghdad itself there is great conflict and killing. So the President talked last night about a division of the city into nine specific regions, bringing in more troops from the Iraqi Government, twice as many more as the United States would bring in, in order not just to clear those areas of the killers, as the President called them, but to hold the areas, to prevent them from coming back in and then causing harm to the innocent Iraqi civilians. The Maliki government had talked about doing this in the past. But when we did the clearing, the killers were allowed to come back and continue their bad action right after we left. We established checkpoints and curfews, and the Iraqi Government said they would like for us to eliminate those checkpoints and curfews. We would arrest these killers and put them in jail, but the Iraqi Government would let them back out. In other words, it was doing things that were antithetical to our ability to consolidate the original victory we obtained by clearing those areas of the killers. The President obtained a commitment from Maliki that this would change, so the strategy now would be with Iraqi troops taking the lead and American troops assisting, to clear the areas and hold them, and hold the killers responsible, keep them from killing again, and go after the militias, especially in Baghdad, that were doing most of this killing. Now, that would require some additional troops in Baghdad, and the President talked about the number of troops that would be provided for that. He said the other area where troops would be provided would be in Al Anbar Province, to the west, where the al-Qaida terrorists had basically developed a tremendous amount of strength and taken over parts of that area, and some additional troops would be needed there. There were other elements of the President's speech. There were well over 20, as I counted them, of different parts of this strategy. But the key elements were the ones I just mentioned. So that is the role these additional troops are supposed to play. Now, to the more fundamental question that the Senator asked, if one only looks at Iraq in a vacuum, I can easily understand why one would come to the conclusion that with the death and destruction there, and the harm to our own troops, it does not make sense for us to be there. But Iraq is not in a vacuum. Iraq is part of a larger war. And this is one thing that both Osama bin Laden and George Bush agree on, probably the only thing: Both of them have called the battle in Iraq critical to achieving victory in the ultimate--the President calls it the war against terrorists; bin Laden calls it the holy jihad. But, in either case, they understand that the loser in this battle in Iraq is not likely to be able to prevail in the larger global war. In bin Laden's case, he is talking about the war to establish the califate, and he says that Baghdad will be the capital of the califate. This is the area that will be ruled by Sharia, the strict law of his interpretation of Islam. The U.S. concept of victory is a peaceful, stable Iraq that can maintain its society and borders and be an ally with us in the war against the terrorists. Our security there is identified in two ways. First, because of the al-Qaida and other terrorists who, as I said, have done a tremendous amount of damage in Al Anbar Province and who initiated a lot of the conflict between the Shiites and the Sunnis, among other things, by bombing one of the most holy of the Shiite mosques; they have initiated a lot of this terrorism. We have to be able to defeat al-Qaida and the other terrorists in Iraq. Secondly, we cannot lose the momentum we have gained in this war against these terrorists in places such as Jordan and Egypt and Saudi Arabia and Pakistan and Afghanistan and Yemen and other places. From a situation where they were actually helping terrorists, we have gotten to a point where they are actually helping us to find and root out and capture or kill the terrorists. Were we to leave Iraq a failed state, it would not only be a devastating--I will use the word--Holocaust for the people of Iraq, especially anyone who tried to help us or participated with the Iraqi Government, but it would be a horrible blow to our national security because it would reverse the momentum we have gained in the war against the terrorists and cause these other states to begin to hedge their bets in working with us because it is a dangerous neighborhood. It would be evident that we have no stomach to stay there and that the terrorists, therefore, can move back in, can use those as a base of operation and continue, then, to work against the states of Afghanistan, Pakistan, Saudi Arabia, and the like. In fact, Saudi Arabia has already talked about trying to provide funding for Sunnis in Iraq. Iran is providing assistance to Shiites in Iraq. These are the reasons why it is more than a battle for Iraq but, rather, to continue the momentum we have gained in dealing with these radicals all throughout that region.

Mr. KYL. Mr. President, I suppose it was inevitable, the criticism of the President's announcement last night. But I ask: What happened to all of the promises of last week, the talk of bipartisanship, the talk of trying to work together, especially on the biggest challenge of our time, this challenge to our national security? Where is the unity that we need at this time for this issue more than at any other? I am disappointed by the attacks on President Bush's strategy, particularly because they come primarily from people who have offered no alternative. It seems to me that threatening to cut off funding for our troops, as some have done, while not giving the President's Iraq strategy a chance, is the worst kind of partisan politics. When dealing with issues of war and peace, and trying to devise a strategy that will result in the least harm to Americans, with the greatest chance of success, it seems to me we should be trying to find common ground. The critics of the President throughout last year called for a new strategy and interpreted the election results of 2006 as substantially a repudiation of the President's strategy and confirmation that there needed to be a new strategy. After consulting with Members of Congress, with generals, with retired generals, with other experts, the Baker-Hamilton Commission, and many others, the President has come up with another strategy, and he announced that strategy last night. It seems to me that we at least owe him the opportunity to see whether that strategy can work before immediately attacking it as a policy that is bound to fail, especially, as I said, because I have seen no alternative. The only alternative is that we withdraw. There are a lot of different ways that we would withdraw, and timetables for withdrawal, but they all come down to withdrawing. That suggests that leaving the Iraqi forces to establish the stability and peace that is required in Iraq is likely to be more successful than the Iraqi troops combined with U.S. troops--a proposition which, it seems to me, is incredible on its face. So where is the alternative strategy for success? Now, one of our colleagues, earlier this morning, said: We are in a hole in Iraq, and the President says the way to dig out of this hole is to dig deeper. Does that make sense, when you are in a hole, you get out by digging deeper? This is a reckless plan. It is about saving the Bush Presidency. It is not about saving Iraq. Well, let me talk about the two elements of that--first, the analogy, which I think breaks down. I have used it before. It is a good analogy in certain situations. But it is a little bit like saying that when the first wave of our boys hit the Normandy beaches, because many of them were dying, that it made no sense to add more forces, to land the rest of our troops on the beach. And that, of course, was not the case.

Mr. KYL. Mr. President, I would say to the distinguished Senator from West Virginia, the Senator asked that question in his remarks a few minutes ago, and I had written down that is a fair question. I am prepared to answer that question, and I would like to answer that question. If the Senator would allow me just to finish the point I was making earlier, I will answer that question.

Mr. KYL. Mr. President, first of all, I ask unanimous consent that the time used by the Senator from West Virginia not count against the time I was given.

Mr. KYL. I might say, by the way, that is the central question, and it has not been adequately answered to date. I will concede that to my friend from West Virginia. But there is an answer, I believe, that justifies, that warrants our participation, and I will make that point. The point I wanted to make before is that simply because you are having a problem achieving something does not mean it is wrong to try to figure out a new strategy to win. And sometimes applying more force can supply that element, that missing element.

Mr. KYL. Yes, of course, I will be happy to.

Mr. KYL

Mr. KYL. Madam President, this has been a good day. It is a day on which many of us were sworn in and a day that the Senate began again to function in this new 110th Congress. It began with a rather historic meeting called by the new majority leader, Harry Reid, in the Old Senate Chamber, a place which I explained to my family is so imbued with the history of the United States and the history of the Senate that one cannot but help feel a sense of responsibility, a special sense of duty when functioning as a Senator in that Old Senate Chamber. Frequently there are people there who remind us of some of the history to call on us to try to rise to the same level to which many of the great Senators in the history of this country rose in the most difficult and challenging times of our country. I believe it was Senator Kennedy who reminded us that exactly on this day, at the very beginning of the Civil War, the Senators from the South left the Senate Chamber for the last time. They did not meet with the Senate thereafter because of the beginning of the Civil War, and that is when the Senate moved from the Old Senate Chamber to the Chamber we are now in--here. There is a great deal of a sense of mission and of history and of responsibility when we meet in a place such as that. The purpose for the meeting was to begin this new Congress thinking about something that we have tended to forget in recent months and even, I would say, years, and that is the degree to which Senators had in the past worked together to get the people's business done. Unlike under the rules of the House of Representatives in which the majority pretty much rules and the minority has very little power, in the Senate the minority and the majority must work together to get anything done because of the rules. With a 51-49 division right now, it is obvious that this body is almost equally divided and that under our rules we are going to have to work very well together to get anything done. In the past there has been--and I would say leading up to the last election--a special amount of politicking and of negativity, the sort of ``gotcha'' kind of politics that is designed to score political points; a cynicism, a lack of comity. I think we always see that a little bit before an election but I felt it much more oppressively in the runup to this last election. Someone has pointed out that perhaps with a divided Government now, in the sense that Democrats control the Congress and the Republican Party controls the executive branch, actually there may be much less incentive for either side to engage in that kind of politics and, to the contrary, much more incentive for both sides to try to work with each other to get things done. The reputation of Democratic Senators and Representatives will depend to some extent on how much they can accomplish. They will have to have Republican help to accomplish things. The last 2 years of the Bush Presidency will depend a great deal on how much he, working with the Congress, can get done in these 2 years. He can't do anything on his own. He has to sign bills that we pass. So he has to work with us, meaning that Republicans working with him also have to reach across the aisle and work with our colleagues in the Democratic Party. I thought some things the Republican leader, Mitch McConnell, said today were especially appropriate in this regard. I want to close our day today, reiterating some of the thoughts he expressed with which I am in total agreement. He said this: The Senate can accomplish great things over the next 2 years, but this opportunity will surely slip from our grasp if we do not commit ourselves to a restoration of civility and common purpose. New Democratic colleague Bernie Sanders from Vermont, with whom I served in the House--we got reacquainted today--said, Are you enjoying it over here? I hesitated. And he laughed. We had a discussion about the fact that it can be very enjoyable when you work together to try to get something done. You have to work with each other across the aisle if you are going to get something done. It is not enjoyable when there is a lack of comity, where harsh language is used, when you see things done purely for political purposes. Then it is not fun. I think we would all rather look forward coming to work in the morning. And it certainly is better when we go home and report to our constituents that we were able to get something done. I am sure the distinguished majority leader would agree with this comment that Mitch McConnell made this morning. He said: . . . as we open this session, I stake my party to a pledge: when faced with an urgent issue, we will act; when faced with a problem, we will seek solution, not mere political advantage. I think that is the credo all of us pretty well agreed to at the end of that very special meeting we had this morning: that we need positive solutions to real problems. We need to act in a spirit of comity. All of us need to stop the finger pointing, the negativity, the taking advantage for political purposes, and the setting up of each other in a way we would fail rather than finding a way that we can both succeed. In fact, one of our colleagues made a comment almost exactly to that effect: We need to both succeed in what we do. Since we now have divided Government, there is an incentive for us to work with each other to do that. There were, of course, some of our colleagues who reminded us that realistically this would not be easy, that there would be a great tendency to slip back into old habits and to fight politically, and we know that to be true. But there are some things--at least one of our colleagues made this point very strongly--on which we have to act in a united way and that starts with our national security, meeting this threat of terrorism. The distinguished Republican leader made that point. Among the things he suggested we would have to work on, he said: America has not seen a domestic terrorist attack since we committed ourselves to the global war on terror. That's not an accident, some quirk of fate. Rather, it is due to the hard work of spotting and disrupting threats before they strike. Much of that capability was granted by the Senate and the House and the President in reorganizing our intelligence agencies, reorganizing some of the laws under which our intelligence agencies and law enforcement work. So we have helped to keep the American people more secure. We should continue that hard work. He concluded on this point: Al-qaida is not a threat to Republicans, it is not a threat to Democrats, it is a threat to America. And the Senate must work together as we prepare for the long struggle ahead. There were many other issues that have been discussed, things we can work together on, things we are going to have to work together on. I close with one example that, to us in this body, we know this for a fact. That is the confirmation of judges. When you have a President of one party nominating judges and the majority in the Senate is of the other party, obviously something has to give. You have to work together. It was the hope of the Republican leader, I am sure, speaking on behalf of the President of the United States as well, that we would find ways to work together, Democrats and Republicans in this body, to give a fair chance to the President's nominees. He is, after all, elected President. He has the authority under the Constitution to nominate judges. Our responsibility is to check them out, to hold the hearings, and to question their qualifications but if in fact they are qualified, to give them a chance to be put on the bench with an up-or- down vote. I hope we could do that for the vast majority of the judges the President has nominated and for the other executive branch nominations of the President as well. These are good examples of areas in which, without cooperation, the Government for the people does not function well. So, as we end this day I ask us to reflect on some of the words of our leaders, Harry Reid and Mitch McConnell, today and our colleagues in that historic meeting this morning when we talked a good game about recommitting ourselves to bipartisan solutions to problems, to work on behalf of the American people with more comity in this body, in a way which will make us feel much better amongst ourselves and make our constituents much happier than they are when they see us fighting and bickering all the time. It is fitting to end this day on that note. I commend the majority leader, Harry Reid. I commend the Republican leader, Mitch McConnell, for serving as examples for all Members in the leadership they exhibited in starting the Senate off this way. I see the distinguished majority leader now. We can conclude this day on that high note, giving some hope to the American people that we are committed to working on their behalf for a better future, a better America.

Mr. KYL

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

Mr. KYL

Mr. KYL. Mr. President, I rise to pay homage to a very special lady. I mourn her passing today, a great American patriot, Jeane Jordan Kirkpatrick. She, of course, is best known as our Ambassador to the United Nations under the Presidency of Ronald Reagan, but her history was of a dedicated American in public service before that. She first rose to international prominence as a foreign policy adviser to Ronald Reagan's first Presidential campaign. Although she considered herself a Democrat at that time, she always placed principle above partisanship. In Governor Reagan, she saw a man who shared her commitment to freedom and democracy and was willing to call evil by name. As America's first female permanent representative to the United Nations, Jeane served President Reagan from 1981 to 1985, and was an eloquent promoter of American values. She once said, ``I think that it's always appropriate for Americans and for American foreign policy to make it clear why we feel that self-government is most compatible with peace, the well-being of people, and human dignity.'' Since leaving full-time Government service, Jeane Kirkpatrick has served as an educator, commentator, a wise woman whose counsel has been highly sought after. She has continued to be a passionate advocate for human rights and has also actively supported missile defense, United Nations reform, and the war against Islamic fascism. Most recently, I have had the pleasure of working with Jeane on the Committee on the Present Danger, which Senator Lieberman and I cochair, and on which she played an important advisory role. America has lost a great patriot and defender in Jeane Kirkpatrick. She will be sorely missed, but she will certainly be fondly remembered.

Mr. KYL

Mr. KYL. Mr. President, I also will say a word about a couple of my colleagues who are leaving, and I will be brief. William Frist I know we were all impressed with the comments of our majority leader, Bill Frist, yesterday. I wish him godspeed in his new endeavors. He certainly has been a joy to work with as part of the Republican leadership because of his good temperament, his wise counsel, his knowledge of human nature, and his deep commitment to this body, the people of Tennessee and, most importantly, to the United States of America. Dennis Hastert I also want to acknowledge that we will no longer have as Speaker of the House of Representatives in a couple of weeks a colleague of mine when I first came to the House of Representatives, Dennis Hastert of Illinois. I saw Dennis this morning at the White House with the President, who also acknowledged the great contribution of Dennis during his period as Speaker of the House. Since we were colleagues coming to the House of Representatives in 1986, I will say a special word of thanks to Dennis for his service. Katie Altshuler Mr. President, I wish to make some comments about Katie Altshuler. Katie has been the head of the Republican policy committee the last several months and has served several of us here in this body, primarily with her work here on the floor of the Senate. Katie will be greatly missed by all the staff of the Republican policy committee but also by the staff of all of the Senate family here, who know that she was a very big part of that Senate family. She and her husband will be returning to Oklahoma. I know all of us wish her well. She is one of those little sparks of humanity who makes life a little bit more worthwhile at some of these long nights and weekends that we occasionally have to spend here in the Senate. Rick Santorum I also acknowledge that several of my colleagues will not be with us after we conclude our business tonight, tomorrow, the next day, or whenever we are going to conclude our business here, colleagues with whom I have served with a great deal of pleasure. My friend Rick Santorum was serving in the leadership. We both served in the House of Representatives. He was a great inspiration to the Republican team here, and I know everyone, Democrat and Republican, respects him for his commitment, values, and ideals. Conrad Burns Conrad Burns is a fellow westerner with whom I have shared much and always enjoyed the humor that Conrad brought to this body. Jim Talent Jim Talent from Missouri is another colleague from the House of Representatives. He is another serious and dedicated public servant whom I suspect we will see more of in the future. George Allen George Allen, a great colleague with whom I also served one term in the House of Representatives, and whose philosophy of ``freedom first'' is certainly one that I share. I know we are going to miss George and his sage counsel in the years to come. Mike DeWine Mike DeWine and I served together on the Judiciary Committee. We came together to the Senate at the same time and I will certainly miss Mike's friendship as well. Lincoln Chafee and Paul Sarbanes Finally, Lincoln Chafee. Although I mentioned Republicans in this list, I certainly don't want to forget, of course, Paul Sarbanes, who will be leaving at the end of this year, and others in the House of Representatives with whom I served as well. I know we all move on at some time and that none of us is irreplaceable. But by the same token, these colleagues of ours who will be leaving will be missed and they will be remembered for their great service to the Senate, to their States, and to the United States of America. I yield the floor.

Mr. KYL

Mr. KYL. Mr. President, I rise today to honor the service of Katie Gumerson Altshuler, my staff director at the Senate Republican policy committee. Katie has decided to return to her native Oklahoma and begin a new life as chief of staff to the Speaker of the House of the Oklahoma Legislature. Katie became staff director of the RPC earlier this year, in what was the culmination of an impressive climb through the ranks of Senate staff leadership dating back to 1995 when she served as an intern for Senator Don Nickles when she was still in college. When Katie graduated from Sweet Briar College 2 years later, Senator Nickles hired her first as a staff assistant and then as a legislative correspondent. And in 1999, he promoted her into the majority whip's office, where she quickly became well known in the Capitol as a floor assistant and policy adviser to Republican Senators. When Senator Nickles finished his term as majority whip, I was thrilled that Katie agreed to join me as my first deputy staff director of the Republican policy committee. In that capacity, she quickly became my eyes and ears here in the Capitol Building, tracking the ins and outs of floor activity, representing the RPC within the leadership, and doing everything she could to ensure that only the best policy-- good, conservative Republican policy--became law. As one of her many duties, you may recall that she developed our RPC ``getaway'' materials and stood over by the side door to my right and handed them to Republican Senators after the last vote of the week. Katie quickly earned my trust, as I know she had earned the trust of Senator Nickles before me. So it was an easy decision to promote Katie to staff director of the RPC in June 2006. She had experience in a broad range of policy areas and she understood the pulse of this body better than most ever will. My staff has enormous respect for her, and she is a natural leader. Katie's departure coincides with the end of my 4 years chairing the Senate Republican policy committee, a job I have enjoyed immensely. I want to thank Katie for the consistently good work product she helped us achieve during these past 4 years. She has inspired other staff members of the committee to achieve a level of excellence that, I believe, has been of great value to Senators and their staffers. My goal, since day one, was to make sure we produced a first-rate product--thorough, accurate, and reliable. Katie understood this, and she made sure it happened. And so we both depart the policy committee-- I for the chairmanship of the Republican Conference and she for the Oklahoma State House--I believe we have left it well-prepared and well- armed for the future. Let me share a few words about Katie personally. We all know Katie to be bright, quick-witted, fiercely loyal, and genuinely warm to those around her. She is a true patriot who cares deeply for this Nation and the Senate, and I know she is proud to have served here for the past 9\1/2\ years. She loves and reveres this institution, even its eccentricities. For example, a former colleague of hers remembers fondly how irritated Katie can become when the decorum of the Senate is offended, even when it is a Senator who fails to take seriously the Senate Chamber's dress code. When contacted a few days ago, Katie's former boss, Senator Don Nickles, had this to say about her: ``Katie brought a great deal of professionalism and enthusiasm into both the Whip office and Policy Committee. She will certainly be missed.'' Eric Ueland, now chief of staff to Majority Leader Frist, worked with Katie for several years in the Nickles whip office. He said: ``No one should ever mistake Katie's grace and charm for indifference to conservative philosophy or Republican ideology, because within her beats the heart of a lion and the ferocity of a tiger. Katie always harnesses the very best from her colleagues to bring creative solutions to bear. She always seeks to suggest the best way forward to do credit not just to the Senators she serves, but to the values that brought them to Washington.'' One more accolade. Dave Schiappa, the secretary for the majority, who handles all floor operations for the Republicans and who has worked with Katie for many years, had this to say: ``Over my 22 years, I have had the privilege to work with a great number of intelligent and dedicated people. Katie Altshuler is one of those shining stars and has set a standard of professionalism and devotion to the Senate as an institution.'' I wish Katie could be convinced to stay and help us in the Senate, but I know that the pull of home and of new challenges is a strong one, and I wish her well in her new endeavors. So, Katie, my best wishes to you as you take up your new line of duty, and on behalf of the Senate, I commend you for your excellent work. Thank you.

Mr. KYL

Mr. KYL. Mr. President, I would like to address the recent enactment of the Unlawful Internet Gambling and Enforcement Act of 2006. Due to procedural considerations at the end of the regular session, this law was enacted as title VIII of H.R. 4954, a bill focused on port security. But I want the record to show that I have been working to pass this law for more than 10 years, with the support of many colleagues. Indeed, the Senators serving as conferees for the port security bill accepted including the Internet gambling title, as did the leadership on both sides of the aisle. And this July, the House of Representatives voted 317-93 in favor of a bill containing not only identical enforcement measures to those that were recently enacted, but also including the more controversial Wire Act amendments. Over the last five Congresses, a stand-alone Internet gambling bill has been passed by at least one Chamber of Congress, every time by overwhelming bipartisan votes. The last time an Internet gambling bill came before the whole Senate, it was passed by unanimous consent. Unfortunately, the Jack Abramoff scandal corrupted the process for that bill in the House of Representatives. Since then, the full Senate has not had the opportunity to vote on more recent legislation repeatedly passed by more than three-quarters of the House. So I greatly appreciate the assistance of the majority leader and the conferees in finally getting this long-overdue law to the President's desk. The National Association of Attorneys General--NAAG--first approached me in 1995 about the problem of Internet gambling. The State attorneys general were concerned about the evasion and erosion of State laws by gambling websites operating beyond the reach of State law enforcement. I heeded NAAG's request and introduced the first Internet gambling bill late that year to increase Federal enforcement of gambling laws. Over the next 10 years, Senate and House Committees repeatedly held hearings and markups. We listened to the experts about what types of enforcement would be effective or impractical, and revised the legislation in response. In 1999, the congressionally commissioned National Gambling Impact Study Commission Report recommended that law enforcement target the payment systems to combat illegal offshore gambling, so that is the approach we adopted. I have worked closely with Representative Jim Leach, former chair of the House Financial Services Committee, a very capable and thoughtful colleague who will be greatly missed in future Congresses. Representative Mike Oxley, who succeeded Mr. Leach as Financial Services chairman a few years ago, Representative Jim Sensenbrenner, chairman of the House Committee on the Judiciary, and Representative Bob Goodlatte, who sponsored the bill scuttled by Jack Abramoff, have all helped shape Internet gambling legislation over the last several years. Why has Congress been so supportive of Internet gambling legislation for so long? Because offshore operators have been flouting American laws for personal gain. They have been giving Americans the false impression that these activities are legal. They have been profiteering from this. The Federal Government has long given States the right to prohibit or limit gambling activities for the protection of the public, but offshore Web sites have been ignoring and circumventing the State laws. State law enforcement officials and Congress refused to stand idly by as our laws were evaded and eroded. How could an illegal activity become so pervasive? Knowing that their businesses are illegal in the United States and many other countries, Internet-gambling businesses have set up shop in countries with very few gambling regulations, such as Antigua and Costa Rica. These small countries benefit from the billions of dollars of profit generated by their local gambling operators. So when the United States tries to prosecute a criminal violation of its gambling laws, these countries are not interested in extraditing their wealthiest residents. The United States is thwarted in its efforts to enforce its criminal laws against offshore gambling businesses. Some say that, instead of trying to enforce the law, we should legalize and regulate online gambling. Why does this approach have so little support in Congress? Because Internet gambling is a scourge to society, leading to addiction and bankruptcy, and enticing young people into a gambling lifestyle. Internet gambling is highly addictive. Online gambling is available 24/7 from almost any location. Fast and continuous play, often financed by credit, allows online gamblers to rapidly lose tens of thousands of dollars, leading to bankruptcy, family devastation, and criminal activity. It is easy to conceal the addiction because an online gambler does not need to leave home or the office to gamble, and shows no physical signs of addictive behavior like an alcohol or drug addict does. Various recent studies show that Internet gamblers are two to three times more likely to become addicted than brick-and-mortar gamblers. One study of students at the University of Connecticut found that 74 percent of Internet gamblers were problem or pathological gamblers. The Annenberg Public Policy Center's 2005 National Annenberg Risk Survey of Youth--NARSY--surveyed 900 young people between 14 and 22 and found that 54 percent of youth who gamble online at least once a week are problem gamblers, and that card players exhibit the most symptoms of gambling addiction. Internet gambling entices young people into a gambling lifestyle. Young people who are accustomed to playing video games for hours on end are particularly likely to be enticed by the games and to lack a realistic perception of the consequences of gambling for money. Conversely, traditional casinos appeal to mature adults: according to a recent survey by the American Gaming Association, 75 percent of casino customers are over 40 years old. Internet gambling appeals to the opposite demographic: at least 70 percent of Internet gamblers are under 40 according to the AGA, and they did not even count the millions of online gamblers who are under 21. Also, Internet gambling appears to be a gateway drug. According to that same survey, Internet gamblers are twice as likely to engage in traditional gambling than the general population. So the rise of online gambling is fertilizing the soil for an explosion of gambling addictions in this country. The United Kingdom is in the midst of an effort to legalize and regulate online gambling, including efforts to prevent youth and problem gambling. This effort is not going well. A report commissioned by the British Government was issued a few weeks ago. The report admits that most gambling operators choose jurisdictions where there is very little regulation on their activities. This creates a race to the bottom, where gambling operators in a few countries can offer services that flout the laws of almost every other jurisdiction. The new law confronts the problem of online gambling in three ways. First, it transforms violations of State gambling laws into a Federal crime as soon as the gambling operator receives money for the transaction. Second, it authorizes Federal and State attorneys general to enjoin persons who enable violations of the law, such as a person running advertisements for illegal Web sites. Third, it requires payment systems to block payments for illegal online gambling. The new Federal criminal law is already having a positive effect. The publicly traded online gambling companies, who have to answer to financial institutions and other investors, have quickly withdrawn from the U.S. market. Some Web sites continue to deceive the American public about the legality of online gambling, State and Federal law enforcement are now empowered to enjoin advertising for these illegal websites, and any other support services within their reach. Payment blocking is necessary to reduce Internet gambling and make it clear to the American public that this activity is illegal. The payment blocking requirements will not become effective until the Treasury Department and the Federal Reserve issue regulations. The statutory deadline for these regulations is August 10, 2007. I urge the Treasury Department and the Federal Reserve to issue these regulations on time, and to make them strong. Most online gambling websites use third-party offshore payment systems to receive money from U.S. customers, because many U.S. financial institutions have already been blocking payments to these Web sites for years. When a U.S. credit card or bank sends money to one of these services, the U.S. financial institution does not know how the money will be used. On the other hand, the third-party payers know the money in their accounts is being used for online gambling by U.S. customers. Therefore, these third-party payers are knowingly aiding and abetting a criminal act when they send funds from U.S. customer accounts to online gambling companies. Firepay has appropriately chosen to stop making these illegal payments for American customers, even though it operates out of Ireland. The regulations need to make sure that law-abiding companies such as Firepay are protected, while third-party payers who knowingly aid and abet criminal activity are effectively sanctioned. I would also note that this law empowers payment systems to make strong efforts to stop the use of their systems for online gambling. To that end, section 5364(d) of the new law protects entities from civil liability for blocking restricted transactions, or if they mistakenly block, prevent, or prohibit legal transactions when attempting, in good faith, to comply with the law. At the same time, section 5364(b)(4) clarifies that the government will attempt to draft the regulations to catch as few legal transactions as possible. The key is implementing the most effective and efficient enforcement measures that are reasonably possible. We have not sat idly by while unscrupulous operators profiteer from evading our laws and perpetrating fraud on the public. We have worked long and hard to defend the letter and the purpose of State and Federal gambling laws, and now we ask the executive branch to help us finish the job. Strong regulations for payment systems will cut off most fund transfers to offshore online gambling operators and destroy U.S. markets. By drastically reducing the availability of Internet gambling in the U.S., we will reduce new addictions and violations of the law. This is why, this year, 49 State attorneys general, as well as the National District Attorneys Association, Federal Criminal Investigators, and Fraternal Order of Police wrote in support of this law. These law enforcement groups were not alone. They were joined by extraordinarily diverse groups that are concerned about the effect that online gambling has on society and the rule of law. First, sports organizations are concerned about preserving the integrity of athletic competitions, and want to protect them from perceptions of corruption or a culture of gambling. This is why the National Football League, National Collegiate Athletic Association, Major League Baseball, National Basketball Association, and National Hockey League all actively supported the law. Second, financial institutions are concerned about Internet gambling's association with money laundering, uncollectible consumer debt, and use of their systems for criminal activity. This is why the American Bankers Association, America's Community Bankers, and Securities Industry of America, joined by individual companies such as American Express, Citigroup, and PayPal, wrote in support of the law. Third, religious groups and family welfare groups are concerned about the devastating effects that gambling addiction can have on families. This is why this law was supported by a broad range of civic organizations, from mainline churches such as the United Methodist Church and the National Council of Churches, to coalitions such as the National Coalition Against Gambling Expansion, to conservative family groups such as the Family Research Council and Concerned Women for America. This is why I am proud that this legislation was finally enacted. As all these diverse groups recognized, online gambling is a threat to civic society for many reasons. Failing to enforce laws that are meant to diminish this threat undermines the rule of law itself. But today we stand ready to reclaim the power to enforce the law, and I ask for the help of the Treasury Department and other executive agencies to secure this victory.

Mr. KYL

Mr. KYL. Mr. President, I shall not take that much time, but I do think it is important to speak to the issue before us, which is adoption of the House bill which takes another step toward securing our border. This is something the American people have been wanting us to do for a long time. What we will also be doing today, in fact, some of our actions in the past weeks have also supplemented, is to pass the money, the appropriations bills that we need to fund all of the things that we need to be doing to secure the borders. I will speak to both of those items. The key to the House bill is to state a commitment that we are going to put the kind of infrastructure on the border that we need to secure the border. It starts with fencing, but it doesn't end with fencing. It includes vehicle barriers because much of the illegal entry into the United States now is accomplished by vehicles. It includes technology, such as cameras and sensors and other means of identifying people who are crossing our border illegally. Some people say that we don't need a fence or these infrastructure barriers because someday we are going to adopt comprehensive immigration reform, and when we take away the magnet of illegal employment, then we are not going to have the problem anymore. That is my fervent hope with respect to the people who cross the border to gain employment here. But the sad reality is that even if we solve that problem--and we haven't gotten very far down the road because we haven't adopted comprehensive immigration reform yet--even if we were to accomplish that in the future, we still have a very high percentage of people coming across the border whom we don't want here no matter what. What am I speaking of? I am speaking of drug dealers, drug cartel members, gang members, and criminals, people wanted for crime, people who have committed crime, much of it very serious crime. As a matter of fact, before the subcommittee I chair on terrorism and homeland security, the head of the Border Patrol testified a few months ago that over 10 percent of the people apprehended for crossing our border illegally have criminal records, and many of these are serious criminal records. In fact, the statistics for this fiscal year, which is almost over, show that the percentage is closer to about 13 to 14 percent, and of those a significant number have committed serious crimes. Here are the statistics year to date: Over 1 million illegal immigrants have been apprehended on the southwest border. Of that number, almost half have come through Arizona, the Yuma and Tucson sectors, so far about 475,000. And of the illegal immigrants apprehended crossing our border to date in this fiscal year, 141,000- plus have criminal histories. Of that number, well over 20,000 are considered to have committed major crimes such as homicide, kidnapping, sexual assault, robbery, assault, dealing in dangerous drugs, and the like. A fence, barriers to illegal entry into this country are important not just to ensure that we enforce our laws with respect to employment but to keep out people who would do our citizens harm. The papers in my State are full of stories every week of people who came to this country illegally and then committed crimes on citizens of the United States and on other illegal immigrants. It is not at all uncommon to see stories of crimes committed against people who just came here for a better way of life but who were assaulted, who were robbed, who were kidnapped for more ransom so their families back home would have to pay money to these coyotes, or kidnappers, and all manner of heinous crime that we have to stop, we have to prevent. And the best way to do that is to have barriers to illegal entry into this country. I mentioned vehicle barriers. Fencing is important and this legislation from the House requires the Department of Homeland Security to begin building fences. I talked with the Secretary this morning. That project has already started. They are well on their way in constructing fencing, and we will be appropriating the money for even more of that construction in the future. But we also have to put up vehicle barriers because more and more now with the territory contested, the illegal entry into this country either to bring drugs in or the human smugglers to bring their cargo, as they call it, requires the use of vehicles. Here is the problem from the Border Patrol perspective. When they see a vehicle, they know they have trouble because it is a more valuable cargo. One can carry more in a vehicle than in a backpack and, therefore, it is more valuable and they are probably going to protect it. If they are going to protect it, it is probably going to be with weapons. The number of assaults on the border are up dramatically--108 percent last year according to the U.S. attorney for the District of Arizona. The reason for that is that the Border Patrol is finally beginning to gain control of parts of the border. They are contesting the territory of the drug cartels and the coyotes and dangerous gangs from places such as El Salvador. As a result, there is much more violence, and it is causing real problems for the Border Patrol. That is the bad news with the good news. We are gaining more territory, more control, but with that comes more violence. Eventually, of course, the control will be consolidated and the violence will go down. But the point is that it is important we demonstrate to the American people that we are serious about gaining control of our border, and it can't be done without more fencing. Let me describe just a little bit what we mean by this fencing because there is some misinformation about it. In Arizona right now in the urban areas south of Yuma, around San Louis, in Nogales, Douglas, and some of the smaller communities, there is some fencing. Much of it is a very old and ugly barrier. It is steel plates that were used in World War II and, I suppose, Vietnam for landing mats in the jungle to make temporary landing strips for aircraft. They stand those steel plates on end and imbed them in concrete. It is a very ugly wall. You can't see through it, obviously, and that is a problem for the Border Patrol. They would like to see who is massing on the other side and what is going on so they can prevent it. Part of the money we will be appropriating will be to replace that wall. It is hard to maintain it, and it is better to build with more modern technologies, sensors embedded in them, and the like. Part of this will be to replace this deteriorating and ugly fencing. Another will be to imbed sensors in the fence so when we have fencing 20, 30 miles outside a community--most of the fencing is in the urban areas where most of the people are. But if we extend it to some of the smuggling corridors, let's say 20 miles outside of town, we are also going to want to get the Border Patrol to a site of a breakthrough or an attempted crossover of the fence. No fence is impervious to people getting through if they have enough time and equipment. That is the key. It slows them down. What we have to have is Border Patrol units that can get to anyplace along the fence in a reasonable period of time, perhaps 10, 15 minutes, or else it will not do any good. If the fence is being tampered with or someone is trying to go over or under it and the Border Patrol is no more than, say, 10 minutes away, that fence stops people long enough for the Border Patrol to get to the site and either prevent the illegal entry or apprehend the people coming in. So we have to have Border Patrol along with fencing, and that means we also have to increase Border Patrol. What are we doing in that regard? We are appropriating enough money for another 1,500 Border Patrol this year, which will take us up to well over 14,000, approaching 15,000, and that is another critical component of this legislation. Vehicle barriers, fencing, sensors, Border Patrol units, and in those places where it doesn't make sense to have a physical fence, we can have cameras--one person stationed in a control room which can monitor maybe 20 different cameras, and any time they see people massing on the other side of the border, they can simply call up the Border Patrol in the area closest, making sure they get to that site in time to apprehend the individuals crossing illegally or to prevent the crossing. All of this can be done. We simply need to appropriate the money and to grant the authority and the direction to the Department of Homeland Security to get the job done. I am advised by the Secretary that this fencing is already under construction and that he can move to a much more aggressive schedule. Obviously, we need to do it in a cost-effective way, and he needs to have the discretion of sequencing what fencing goes where when, when vehicle barriers are better than fencing, or cameras would do the job, and so forth. With the direction of Congress to get this done, and his commitment to get it done, I am persuaded we can make a big dent in getting control of our borders. That is what we committed to the American people we are going to do. The key point I want to say today is that I am going to be very pleased when we are able to adopt this legislation. No one should think that it is the end; rather, it is the end of the beginning. The beginning step is to secure the border, and with this direction, with this bill, we will have nailed in place the direction to the Department of Homeland Security. If we continue to adopt the appropriations that we have begun to adopt to spend the money on all the different items I talked about, if we put our money where our mouth is--and we are doing that--then we will be able to demonstrate to the American people that we care, that we have answered the basic question that they always ask me, which is: Why should we adopt some new legislation when the Federal Government isn't enforcing the laws we have? This demonstrates to them that we are enforcing the laws we have, that we are committed to that enforcement. Then we can go to the American people and ask for their support and their consensus on the next step, which will be comprehensive immigration reform to deal with the problem of illegal hiring, to have electronic verification of employment, to have a temporary worker program that really works because it is for temporary employment only, not permanent employment, and finally, to deal with the illegal immigrants who are here already. All of those items need to be done, and the sooner we get about it the better. But the place to start is by securing the border, and the place to start with that is the construction of fencing and other barriers to prevent illegal entry. I am pleased the House has passed the bill. I am pleased that we are going to be passing the bill tonight. I urge my colleagues to support this measure whenever the hour comes that we actually get to vote on it.

Mr. KYL

Mr. KYL. Madam President, yesterday Senator Specter argued that one sentence in the Hamdi opinion that refers to habeas corpus rights as applying to all ``individuals'' inside the United States indicates that alien enemy combatants have constitutional habeas rights when they are held inside this country. I believe that Senator Specter is incorrect, for the following reasons: (1) The Hamdi plurality repeatedly makes clear that ``the threshold question before us is whether the Executive has the authority to detain citizens who qualify as `enemy combatants.''' The plurality expressly frames the issue before it in terms of the rights of citizens no fewer than eight times. It is clear that it is only the rights of citizens that the Hamdi plurality studied and ruled on. (2) Elsewhere the Hamdi plurality criticized a rule that would make the government's right to hold someone as an enemy combatant turn on whether they are held inside or outside of the United States. The plurality characterized such a rule as creating ``perverse incentives,'' noted that it would simply encourage the military to hold detainees abroad, and concluded that it should not create a ``determinative constitutional difference.'' The same effect would, of course, be felt if enemy soldiers' habeas rights were made turn on whether they were held inside or outside of the United States. The fact that the Hamdi plurality rejected this type of geographical gamesmanship in one context casts doubt on the theory that it endorsed it in a closely related context. (3) Had Hamdi extended habeas rights to alien enemy combatants held inside the United States, that would have been a major ruling of tremendous consequence. Because courts typically do not hide elephants in mouseholes, cf. Whitman v. ATA, it is fair to conclude that no such groundbreaking ruling is squirreled away in one ambiguous sentence in the Hamdi plurality opinion on the floor Wednesday evening, I presented the argument that the constitutional writ of habeas corpus does not extend to alien enemy soldiers held during wartime. Senator Specter responded by quoting from a passage in Justice O'Connor's plurality opinion in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), that he believes establishes that alien combatants are entitled to habeas rights if they are held within the United States. That statement, towards the beginning of section III.A of the court's opinion, is a part of a statement of general principles noting that ``[a]ll agree'' that, absent suspension, habeas corpus remains available to every ``individual'' within the United States. Senator Specter reads this statement, unadorned by any qualification as to whether the individual in question is a U.S. citizen, an illegal immigrant, or an alien enemy combatant, to stand for the proposition that even the latter has a constitutional right to habeas corpus when held within the United States. I would suggest that this single, ambiguous statement cannot be construed to bear that much weight, for three reasons. Elsewhere in its opinion, the Hamdi plurality repeatedly makes clear that the only issue it is actually considering is whether a U.S. citizen has habeas and due process rights as an enemy combatant. The plurality's emphasis on citizenship is repeatedly made clear throughout Justice O'Connor's opinion. For example, on page 509, in its first sentence, the plurality opinion says: ``we are called upon to consider the legality of the detention of a United States citizen on United States soil as an `enemy combatant' and to address the process that is constitutionally owed to one who seeks to challenge his detention as such.'' On page 516, the plurality again notes: ``The threshold question before us is whether the Executive has the authority to detain citizens who qualify as `enemy combatants.' '' On page 524, the plurality once again emphasizes: ``there remains the question of what process is constitutionally due to a citizen who disputes his enemy- combatant status.'' On page 531: ``We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law.'' On page 532: ``neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant.'' On page 533: ``We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertion before a neutral decisionmaker.'' On page 535: military needs ``are not so weighty as to trump a citizen's core rights to challenge meaningfully the Government's case and to be heard by an impartial adjudicator.'' And on page 536-37: ``it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government.'' Whatever loose language may have been used in the plurality's statement of general principles at the outset of its analysis, it is apparent that the only issue that the plurality actually studied and intended to address is the constitutional rights of the U.S. citizen. Another thing that augurs against interpreting the Hamdi plurality opinion to extend constitutional habeas rights to alien enemy combatants whenever they are held inside the United States is that, elsewhere in its opinion, the plurality is quite critical of a geographically-based approach to enemy combatant's rights. At page 524, the plurality responds to a passage in Justice Scalia's dissent that it reads as arguing that the government's ability to hold someone as an enemy combatant turns on whether they are held inside or outside of the United States. The plurality opinion states that making the ability to hold someone as an enemy combatant turn on whether they are held in or out of the United States: creates a perverse incentive. Military authorities faced with the stark choice of submitting to the full-blown criminal process or releasing a suspected enemy combatant captured on the battlefield will simply keep citizen-detainees abroad. Indeed, the Government transferred Hamdi from Guantanamo Bay to the United States naval brig only after it learned that he might be an American citizen. It is not at all clear why that should make a determinative constitutional difference. It is doubtful that this same plurality--one that sees ``perverse'' effects in rules that would encourage the government to hold enemy combatants outside of the United States in order to avoid burdensome litigation--also intended to rule that full constitutional habeas rights attach to alien enemy combatants as soon as they enter U.S. airspace. Finally, Senator Specter's argument that the ambiguous reference to ``individuals'' on page 525 of Hamdi extends habeas rights to foreign enemy combatants held inside U.S. territory is inconsistent with the common sense interpretive rule that one does not ``hide elephants in mouseholes.'' Whitman v. American Trucking Association, 531 U.S. 457, 468 (2001). Although this rule of construction typically is applied by the court to our enactments, I see no reason why its logic would not operate when applied in reverse, by members of this body to the court's opinions. For the Hamdi court to have extended constitutional habeas rights to alien enemy soldiers held inside the United States would have been a major decision of enormous consequence to our nation's warmaking ability. As the Hamdi plurality itself noted, ``detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war.'' As I noted yesterday, during World War II the United States detained over 425,000 enemy war prisoners inside the United States. Yet as Rear Admiral Hutson--no supporter of section 7 of the MCA--noted in his testimony at Monday's Judiciary Committee hearing, aside from one petition filed by an American of Italian descent, no habeas petitions challenging detention were filed by any of these World War II enemy combatants. It is simply inconceivable that all of the 425,000 enemy combatants held inside the United States during this period could have been allowed to sue our government in our courts to challenge their detention. And were their right to do so made to turn on whether they were held inside or outside of the United States, our Armed Forces inevitably would have been forced to find some accommodations for them in foreign territory. And since holding enemy combatants near the war zone is neither practical nor safe, our nation's whole ability to fight a war would be made to turn on whether we could find some third country where we could hold enemy war prisoners. I would submit that this elephant of a result simply will not fit in the small space for it created by the one ambiguous passage in the Hamdi plurality opinion. For these three reasons, I believe that Senator Specter is incorrect to interpret the Hamdi plurality opinion to extend constitutional habeas corpus rights to alien enemy combatants held inside the United States. Just to conclude by summarizing the point as follows: On eight separate times, the plurality opinion in Hamdi refers to the rights of citizens. That is the question before the court. This is what it rules on. This is our holding. At no point does it extend it to citizens. There is one sentence rather loosely framed that refers to individuals. Had the courts in that decision intended to apply the habeas right to all individuals in the United States rather than citizens, it would most assuredly have said so. I don't think, with all due respect to my great friend, the chairman of the committee, that relying on that one loose word in one sentence of the opinion overrides all of the other reasoning, all of the other clear statements, and the obvious intent of the opinion to relate it to citizens only. With all due respect, I disagree with the reading of the case and conclude that there is nothing wrong with this legislation before us limiting the rights of habeas to those who are citizens and not extending it to alien enemy combatants.

Mr. KYL

Mr. KYL. Mr. President, I have a longer presentation, but what I would like to do is respond specifically to the argument Senator Specter is now making, and then Senator Cornyn has longer remarks to make. Let me begin by saying that I have the utmost respect for the chairman of the committee, my friend, the Senator from Pennsylvania. And he is entitled to be wrong once in a while. In this matter, he is wrong. It was testimony before the committee on Monday that verifies that this is not a constitutional issue with respect to aliens. It is only a constitutional issue with respect to citizens. This legislation has nothing to do with citizens. The decision cited by the Senator from Pennsylvania is the Hamdi decision, which dealt with a U.S. citizen. And, of course, the writ of habeas corpus applies to U.S. citizens. Our legislation does not. Here is what David Rivkin, a partner at Baker & Hostetler law firm, testified to on Monday. He said in this legislation: We are giving [alien enemy combatants] a lot more . . . than they are legally entitled to under either international [law] or the law in the U.S. constitution. Now, let me just proceed from that. Our Supreme Court has held that U.S. constitutional protections do not apply to aliens held outside of our borders. The Johnson v. Eisentrager case, for example, rejected the view that the U.S. Constitution applies to enemy war prisoners held abroad, saying: 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. In 1990, the Supreme Court reaffirmed this view in the Verdugo case, saying: [W]e have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States. That case also makes it clear that constitutional protections do not extend to aliens detained in this country who have no substantial connection to this country. The Supreme Court there said that aliens ``receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.'' The Verdugo Court further clarified that ``lawful but involuntary'' presence in the United States ``is not of the sort to indicate any substantial connection with our country.'' Now, the Rasul case took great pains to emphasize that its extension of habeas to Guantanamo Bay was only statutory. Some Justices may have wanted to make Rasul a constitutional holding, but there was no majority for such a ruling. So both Eisentrager and Verdugo are still the governing law in this area. These precedents hold that aliens who are either held abroad or held here but have no other substantial connection to this country are not entitled to invoke the U.S. Constitution. As committee witness Brad Berenson noted at Monday's hearing: [N]othing in the Constitution, including the Suspension Clause, confers rights of access to our courts for alien enemy combatants being held in the ordinary course of armed conflict. He also refuted the argument that constitutional rights of habeas for enemy combatants is embedded in the Rasul decision. As he explained before, going through the logic of that opinion and its dependence on the 1973 Braden case, and I am quoting: If there were a constitutional right to habeas corpus relief for alien enemies held abroad, the implication would thus be that it sprang into existence some time after 1973, if not just two years ago in 2004, and received no mention in Rasul. No matter how robust a concept of the ``living Constitution'' one embraces, this sort of Miracle-Gro Constitution cannot fit within it. He was trying to be clever there to point out the fact that never has the Court come close to holding that for alien enemy combatants there is a constitutional right of habeas. And no decision of the Supreme Court has ever grounded its decision on the Constitution--only the case with respect to U.S. citizens. So I do not fear the Supreme Court overturning what we are trying to do here. One never knows what the Court might do. And Senator Specter certainly is correct that if it did, we would have to revisit this issue. I am totally confident, however, that this legislation would be upheld and certainly not be declared unconstitutional based upon a view that the habeas provisions apply to alien enemy combatants. Mr. President, the Specter amendment strikes at the heart of the litigation reforms in this bill--it undercuts the entire bill. The amendment would undercut and override the carefully calibrated accountability and supervision mechanisms negotiated by the Armed Services committee. And it would give enemy soldiers challenging their detention unprecedented access to our courts. It should be strongly opposed. Under the MCA, detainees already receive extremely generous process without habeas corpus lawsuits. Every detainee held at Guantanamo currently receives a Combatant Status Review Tribunal (CSRT) review of his detention. The CSRT process is modeled on and closely tracks the Article 5 hearings conducted under the Geneva Conventions. In the 2004 Hamdi decision, the Supreme Court cited Article 5 hearings as an example of the type of hearing that would be adequate to justify detention of even an American citizen who has engaged in war against the United States. Moreover, under the Geneva Conventions, Article 5 hearings are given to detainees only when there is substantial doubt as to their status. In all American wars, only a small percentage of detainees have ever been given Article 5 hearings. Yet at Guantanamo, we have given a CSRT hearing to every detainee who has been brought there. And finally, it bears emphasis that the CSRT gives unlawful enemy combatants even more procedural protections than the Geneva Conventions' Article 5 hearing give to lawful enemy combatants. For example: A CSRT provides a detainee with a personal representative to help him prepare his case. An Article 5 tribunal does not. Under the CSRT procedure, the hearing officer is required to search government files for ``evidence to suggest that the detainee should not be designated as an enemy combatant.'' An Article 5 tribunal provides no such right. CSRTs give the detainee a summary of the evidence supporting his detention in advance of the hearing. Article 5 tribunals do not. CSRTs are subject to review by supervising authorities and may be remanded for further review. Article 5 provides no such rights. Finally, after a CSRT is completed, the Detainee Treatment Act, DTA, and the Military Commissions Act, MCA, give an al-Qaida detainee the right to appeal the result to the DC Circuit. That circuit--staffed by some of the best judges in this country--is then authorized to make sure that all proper procedures were followed in the CSRT hearing, and to judge whether the CSRT process is consistent with the Constitution and with federal statutes--though no treaty lawsuits are authorized, pursuant to long-standing precedent. Now I would grant, the DTA does not allow re-examination of the facts underlying a prisoner's detention, and it limits the review to the administrative record. I commented on these provisions more extensively in remarks submitted for the Record on December 21. But as committee witness Brad Berenson noted at Monday's Judiciary Committee hearing, quoting the Supreme Court's 2001 decision in St. Cyr, ``the traditional rule on habeas corpus review of non-criminal executive detentions was that `the courts generally did not review the factual determinations made by the executive.' '' And under the original common-law writ of habeas corpus, the facts in the custodian's return could not be contested. Thus, although the DTA does not allow sufficiency-of-the- evidence challenges, neither did the common law writ of habeas corpus-- especially for noncriminal executive detentions. DTA review is limited--it has to be, or we would face the same litigation burdens as under the Rasul-inspired litigation. But common-law habeas itself is a limited remedy. Under the DTA, prisoners are not denied anything that they would have been entitled to under the original common-law writ of habeas corpus. Moreover, the fact that we are letting detainees go to court to challenge their conviction is totally unprecedented. At a hearing held on Monday before the Judiciary Committee, one of the witnesses who opposes the MCA, Rear Admiral John Hutson, nevertheless conceded in his testimony that ``[i]n World War II, when thousands and thousands of German and Italian POWs were imprisoned in various camps throughout the United States . . . there is only one recorded case of a POW using habeas to test his imprisonment. He was an Italian American and his petition was denied.'' Just to be clear: there were 425,000 enemy combatants held in the United States during World War II. Yet according to Senator Specter's own witness at his Judiciary Committee hearing, only one habeas petition challenging detention was filed--and that was filed by an American citizen. The MCA only applies to aliens--not American citizens, so even that case would not have been affected by this bill. World War II did see several petitions challenging military trials, but the MCA and the DTA also allow judicial review of military commissions. At Senator Specter's September 25, 2006, hearing on the MCA before the Judiciary Committee, committee witness Brad Berenson, a partner at the Sidley & Austin law firm, testified that ``[n]o nation on the face of the earth in any previous conflict has given people they have captured anything like [the procedures provided by CSRTs and the DTA], and none does so today.'' Mr. Berenson reiterated: The MCA's procedures ``are in fact more generous than anything we or any other nation in the history of the world has previously afforded to our military adversaries.'' At the same hearing--Senator Specter's hearing on the MCA on Monday-- we also heard from David Rivkin, a partner at the Baker & Hostetler law firm. This is what he had to say: ``[t]he level of due process that these detainees are getting [under CSRTs and the DTA] far exceeds the level of due process accorded to any combatants, captured combatants, lawful or unlawful, in any war in human history.'' Mr. Rivkin added: ``We are giving [alien enemy combatants] a lot more . . . than they are legally entitled to under either international [law] or the law in the U.S. Constitution.'' The Supreme Court has held that U.S. constitutional protections do not apply to aliens held outside of our borders. For example, in Johnson v. Eisentrager (1950), the Supreme Court rejected the view that the U.S. Constitution applies to enemy war prisoners held abroad, noting that ``[n]o 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.'' In 1990, the Supreme Court reaffirmed this view in the Verdugo case, holding that ``we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.'' The Verdugo case also makes clear that constitutional protections do not extend to aliens detained in this country who have no substantial connection to this country. The Supreme Court noted that aliens ``receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.'' The Verdugo Court further clarified that ``lawful but involuntary'' presence in the United States ``is not of the sort to indicate any substantial connection with our country.'' That is United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). Rasul v. Bush took great pains to emphasize that its extension of habeas to Guantanamo Bay was only statutory. Some Justices may have wanted to make Rasul a constitutional holding, but there clearly was no majority for such a ruling. Eisentrager and Verdugo are still the governing law in this area. These precedents hold that aliens who are either held abroad, or held here but have no other substantial connection to this country, are not entitled to invoke the U.S. Constitution. As committee witness Brad Berenson noted at Monday's hearing, ``nothing in the Constitution, including the Suspension Clause, confers rights of access to our courts for alien enemy combatants being held in the ordinary course of an armed conflict.'' Berenson also refuted the argument that a constitutional right of habeas for enemy combatants is embedded in the Rasul decision. As he explained, going through the logic of that opinion and its dependence on the 1973 Braden case: If there were a constitutional right to habeas corpus relief for alien enemies held abroad, the implication would thus be that it sprang into existence some time after 1973, if not just two years ago in 2004, and received no mention in Rasul. No matter how robust a concept of the ``living Constitution'' one embraces, this sort of Miracle-Gro Constitution cannot fit within it. The Specter amendment would have led to a nightmare of litigation in other wars. During World War II, the United States held millions of axis enemy combatants. During some periods, enemy war prisoners were shipped into this country at the rate of 60,000 a month. By the end of the war, over 425,000 enemy war prisoners were detained in prison camps inside the United States. Overall, the United States detained over two million enemy combatants during World War II. Prisoner camps for these combatants existed in all but three of the then-48 states. If the Specter amendment had been law during World War II, all of these 2 million enemy combatants would have been allowed to file habeas corpus lawsuits in Federal district court against our Armed Forces. Just try to imagine what that would have meant. The vast majority of these 2 million enemy prisoners were not familiar with the American legal system and did not speak English. If they had habeas corpus rights, they surely would have had to be provided with a lawyer in order to effectuate those rights. Also, should each of these 2 million prisoners also have been given access to the classified evidence that might be used against them to justify their detention? Should all 2 million of these prisoners have been entitled to call witnesses on their behalf? Should they have been allowed to recall the U.S. soldiers at the front who captured them, and to cross examine them? The consequences of the Specter amendment are unimaginable. We cannot allow enemy war prisoners to sue us in our own courts. Such a system would make it simply impossible for the United States to fight a war. But don't take my word for it. The United States Supreme Court came to the same conclusion in its landmark decision in Johnson v. Eisentrager. The Supreme Court in that case clearly and eloquently explained why we cannot allow alien enemy combatants to sue our military in our courts: A basic consideration in habeas corpus practice is that the prisoner will be produced before the court. This is the crux of the statutory scheme established by the Congress; indeed, it is inherent in the very term ``habeas corpus.'' And though production of the prisoner may be dispensed with where it appears on the face of the application that no cause for granting the writ exists, Walker v. Johnston, we have consistently adhered to and recognized the general rule. Ahrens v. Clark. To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise 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 courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States. The Specter Amendment would disrupt the operation of Guantanamo and undermine the war on terror. We already know that habeas litigation at Guantanamo has consumed enormous resources and disrupted day-to-day operation of the base. The United States February 17, 2006 Supplemental Brief in the Al Odah case in the DC circuit describes the burdens imposed on the military by the Guantanamo litigation and the frivolous nature of some of the claims being pursued. At pages 12-14, the brief describes the following: According to the Justice Department: ``The detainees have urged habeas courts to dictate conditions on [Guantanamo Naval] Base ranging from the speed of Internet access afforded their lawyers to the extent of mail delivered to the detainees;'' More than 200 cases have been filed on behalf of 600 purported detainees. This number exceeds the number of detainees actually held at Guantanamo, which is near 500; Also according to the Justice Department: ``The Department of Defense has been forced to reconfigure its operations at Guantanamo Naval Base to accommodate hundreds of visits by private habeas counsel. . . . This habeas litigation has consumed enormous resources and disrupted the day-to-day operation of Guantanamo Naval Base;'' The United States also notes that this litigation has had a serious negative impact on the war with Al Qaeda. According to the U.S. brief: Perhaps most disturbing, the habeas litigation has imperiled crucial military operations during a time of war. In some instances, habeas counsel have violated protective orders and jeopardized the security of the base by giving detainees information likely to cause unrest. Moreover, habeas counsel have frustrated interrogation critical to preventing further terrorist attacks on the United States. One of the coordinating counsel for the detainees boasted about this in public: The litigation is brutal for [the United States.] It's huge. We have over one hundred lawyers now from big and small firms working to represent the detainees. Every time an attorney goes down there, it makes it that much harder [for the U.S. military] to do what they're doing. You can't run an interrogation . . . with attorneys. What are they going to do now that we're getting court orders to get more lawyers down there? Brad Berenson, who testified at the September 25 Judiciary Committee hearing on this bill, offers what I think is a fitting comment on the habeas corpus litigation at Guantanamo Bay thus far. He concluded his testimony by noting, ``All freedom-loving people cherish the Great Writ. But we debase the writ, rather than honor it, if we extend it into realms where neither history nor tradition support its use.'' At Monday's Judiciary Committee hearing, some witness suggested that the bulk of the detainees held at Guantanamo are innocent. One witness at Monday's Judiciary Committee hearing, a lawyer who represents 10 Saudis held at Guantanamo, went so far as to assert that ``none of the ten . . . are enemies of the United States.'' This lawyer even told us that the men at Guantanamo ``do not appear any more dangerous . . . than my younger grandchild, who is 12.'' Another witness at the Judiciary Committee's September 25 hearing asserted that ``[n]ot a crumb of evidence has been adduced suggesting that the writ would risk freeing terrorists to return to fight against the United States.'' This characterization, and similar assertions that the bulk of the detainees at Guantanamo are innocent, simply do not comport with reality. The United States has already released a number of detainees. These are detainees who our own Armed Forces decided were not enemy combatants or were no longer dangerous. Our Armed Forces are obviously very cautious about whom they release--they have great reason to be cautious, since they bear the consequences of releasing anyone who is a threat. Yet we already know that even among those detainees whom our Armed Forces thought were not dangerous, a significant number instead turned out to remain committed to war against the United States and its allies. According to a October 22, 2004 story in the Washington Post, at least 10 detainees released from Guantanamo have been recaptured or killed fighting U.S. or coalition forces in Afghanistan or Pakistan. This is what the Washington Post described: One of the repatriated prisoners is still at large after taking leadership of a militant faction in Pakistan and aligning himself with al Qaeda, Pakistani officials said. In telephone calls to Pakistani reporters, he has bragged that he tricked his U.S. interrogators into believing he was someone else. Another returned captive is an Afghan teenager who had spent two years at a special compound for young detainees at the military prison in Cuba, where he learned English, played sports and watched videos, informed sources said. U.S. officials believed they had persuaded him to abandon his life with the Taliban, but recently the young man, now 18, was recaptured with other Taliban fighters near Kandahar, Afghanistan, according to the sources, who asked for anonymity because they were discussing sensitive military information. * * * * * The latest case emerged two weeks ago when two Chinese engineers working on a dam project in Pakistan's lawless Waziristan region were kidnapped. The commander of a tribal militant group, Abdullah Mehsud, 29, told reporters by satellite phone that his followers were responsible for the abductions. Mehsud said he spent two years at Guantanamo Bay after being captured in 2002 in Afghanistan fighting alongside the Taliban. At the time he was carrying a false Afghan identity card, and while in custody he maintained the fiction that he was an innocent Afghan tribesman, he said. U.S. officials never realized he was a Pakistani with deep ties to militants in both countries, he added. I managed to keep my Pakistani identity hidden all these years,'' he told Gulf News in a recent interview. Since his return to Pakistan in March, Pakistani newspapers have written lengthy accounts of Mehsud's hair and looks, and the powerful appeal to militants of his fiery denunciations of the United States. ``We would fight America and its allies,'' he said in one interview, ``until the very end.'' Last week Pakistani commandos freed one of the abducted Chinese engineers in a raid on a mud-walled compound in which five militants and the other hostage were killed. The 10 or more returning militants are but a fraction of the 202 Guantanamo Bay detainees who have been returned to their homelands. Of that group, 146 were freed outright, and 56 were transferred to the custody of their home governments. Many of those men have since been freed. Mark Jacobson, a former special assistant for detainee policy in the Defense Department who now teaches at Ohio State University, estimated that as many as 25 former detainees have taken up arms again. ``You can't trust them when they say they're not terrorists,'' he said. * * * * * Another former Guantanamo Bay prisoner was killed in southern Afghanistan last month after a shootout with Afghan forces. Maulvi Ghafar was a senior Taliban commander when he was captured in late 2001. No information has emerged about what he told interrogators in Guantanamo Bay, but in several cases U.S. officials have released detainees they knew to have served with the Taliban if they swore off violence in written agreements. Returned to Afghanistan in February, Ghafar resumed his post as a top Taliban commander, and his forces ambushed and killed a U.N. engineer and three Afghan soldiers, Afghan officials said, according to news accounts. A third released Taliban commander died in an ambush this summer. Mullah Shahzada, who apparently convinced U.S. officials that he had sworn off violence, rejoined the Taliban as soon as he was freed in mid-2003, sources with knowledge of his situation said. I urge that anyone consider these facts before contending that the bulk of the detainees at Guantanamo are ``innocent.'' I would also like to respond to some of the attacks that have been made on the underlying DTA. One of the complaints made is that there is no mandate in the DTA, or in the MCA, that the military conduct CSRTs for enemy combatants that it captures. In a September 25 letter to Senators, for example, the ACLU urges opposition to the MCA on the ground, among other things, that ``[w]hile the bill does allow limited appeals for those who do go before a military commission or a Combatant Status Review Tribunal, CSRT, there is no guarantee that any person detained by our government be provided with either a trial or a CSRT.'' Similarly, at the September 25 hearing before the Judiciary Committee, committee witness Bruce Fein argued against the MCA on the ground ``the fact is that the statute would enable the executive branch to simply decline to hold CSRT proceedings . . . [I]t gives the executive branch, if it wishes, [the right] to hold detainees indefinitely without any access to the Federal courts. [Military commanders could] say, we do not want to hold a Combatant Status Review Tribunal, it is so clear that they [the detainees] are enemy combatants. If they do not hold the tribunal hearing, there is no access to Federal courts under the statute.'' My response to these critics is that what they have described does accurately describes the DTA and MCA--and also the Geneva Conventions. As I noted earlier, the Geneva Conventions require an Article 5 hearing on the status of a detainee, but only if there is doubt as to his status. Under the Geneva Conventions, I would submit, there is no need for any Article 5 hearing for any of the al-Qaida and Taliban detainees, because there is simply no question that these detainees are not entitled to privileged status under the Geneva Conventions. The Conventions allow the military to make blanket determinations, and our nation would certainly be within its rights to do so here. What the military currently is doing for Guantanamo detainees goes well beyond the process to which they are entitled. What these critics want Congress to apply to our Armed Forces is a rule of no good deed goes unpunished. Because the military, in response to criticism of Guantanamo, started giving everyone at Guantanamo a CSRT hearing, these critics contend, it should be compelled to do so for all future detainees, and for all future wars. What is now given as a matter of executive grace, they contend, should be transformed into a legislative mandate. This the Armed Services committees and this congress declined to do. Aside from the fact that these detainees, aliens all, are not entitled to CSRTs or any Article 5 type hearing under the Geneva Conventions, it would be absurdly impractical to require the military to provide such hearings in all future conflicts. Consider, for example, the case of World War II. As I mentioned earlier, the United States detained over 2,000,000 enemy combatants during that conflict. How on earth could we possibly expect the military to conduct CSRTs for 2 million people? And how could the DC Circuit be expected to handle 2 million appeals from CSRTs, even under the de minimis facial challenge authorized by the DTA? It is simply inconceivable. The CSRTs and DTA review, I concede, would be insufficient to justify detention of a United States citizen accused of a crime. This is not civilian criminal justice due process. But these detainees are not entitled to civilian criminal justice due process. Nor are they entitled to such hearings under the Geneva Conventions. What the DTA review standards do offer is judicial review that is consistent with military needs and with the executive branch's primacy among the branches of government in the conduct of war. It is judicial review in keeping with the traditional limited role of the courts in reviewing the conduct of war. As others have noted, DTA judicial review is limited to two narrow inquiries: did the CSRTs and commissions use the standards and procedures identified by the Secretary of Defense, and is the use of these systems to either continue the detention of enemy combatants or try them for war crimes consistent with the Constitution and federal statutes? The first inquiry I think is straightforward: did the military follow its own rules? This inquiry does not ask whether the military reached the correct result by applying its rules or whether a judge agrees that the evidence meets some particular standard of evidence. The inquiry is simply whether the correct rule was employed. Former United States Attorney General Bill Barr, in his testimony before the Senate Judiciary Committee on June 15 of last year, described the understanding of judicial review of military decisions that the DTA's review standards are designed to reflect: It seems to me that the kinds of military decisions at issue here--namely, what and who poses a threat to our military operations--are quintessentially Executive in nature. They are not amenable to the type of process we employ in the domestic law enforcement arena. They cannot be reduced to neat legal formulas, purely objective tests and evidentiary standards. They necessarily require the exercise of prudential judgment and the weighing of risks. This is one of the reasons why the Constitution vests ultimate military decision-making in the President as Commander-in-Chief. If the concept of Commander-in-Chief means anything, it must mean that the office holds the final authority to direct how, and against whom, military power is to be applied to achieve the military and political objectives of the campaign. I am not speaking here of ``deference'' to Presidential decisions. In some contexts, courts are fond of saying that they ``owe deference'' to some Executive decisions. But this suggests that the court has the ultimate decision-making authority and is only giving weight to the judgment of the Executive. This is not a question of deference--the point here is that the ultimate substantive decision rests with the President and that courts have no authority to substitute their judgments for that of the President. I think that last point is worth emphasizing. The DTA is not an invitation for the courts to substitute their judgment for that of the military. It is not for the courts to decide if someone is an enemy combatant, regardless of the standard of review. It is simply not the role of the courts to make that decision. It is not the courts, after all, who bear the burden of capturing an enemy combatant again if he is released and rejoins the battle. The only thing the DTA asks the courts to do is check that the record of the CSRT hearings reflect that the military has used its own rules. It is up to the military to decide what the result should be under those rules, or even how those rules should be modified in the future. I would also reiterate a few words about the legality review that the DTA provides. This provision authorizes, in effect, a facial challenge to the CSRTs. I anticipate that once the District of Columbia circuit decides these questions with regard to a particular set of CSRT procedures in use, that decision will operate as circuit precedent unless and until the CSRT procedures are changed. Based on the long body of Supreme Court precedent governing judicial review of military affairs, I do not anticipate that any type of hearing is required by the Constitution or by Federal statute in order for the military to be allowed to detain alien enemy combatants. The Geneva Conventions do require hearings when there is doubt as to a detainee's privileged status, but those Conventions are not enforced through the courts, and the DTA does not disturb that limit on judicial enforceability. Allow me to quote the previous understanding of the scope of judicial review of military-commission trials that the DTA is designed to embody, as expressed in the Supreme Court's landmark decision in Johnson v. Eisentrager: It is not for us to say whether these prisoners were or were not guilty of a war crime, or whether if we were to retry the case we would agree to the findings of fact or the application of the laws of war made by the Military Commission. The petition shows that these prisoners were formally accused of violating the laws of war and fully informed of particulars of these charges. As we observed in the Yamashita case, ``If the military tribunals have lawful authority to hear, decide and condemn, their action is not subject to judicial review merely because they have made a wrong decision on disputed facts. Correction of their errors of decision is not for the courts but for the military authorities which are alone authorized to review their decisions. We consider here only the lawful power of the commission to try the petitioner for the offense charged.'' Finally, I would like to reiterate the most important reason why I believe that Congress needs to bring an end to the habeas litigation involving war-on-terror detainees. Keeping captured terrorists out of the court system is a prerequisite for conducting effective and productive interrogation. And it is interrogation of terrorist detainees that has proved to be an important source of critical intelligence that has saved American lives. Giving detainees access to federal judicial proceedings threatens to seriously undermine vital U.S. intelligence-gathering activities. Under the new Rasul-imposed system, shortly after al-Qaida and Taliban detainees arrive at Guantanamo Bay, they are informed that they have the right to challenge their detention in Federal court and the right to see a lawyer. Detainees overwhelmingly have exercised both rights. The lawyers inevitably tell detainees not to talk to interrogators. Also, mere notice of the availability of these proceedings gives detainees hope that they can win release through adversary litigation, rather than by cooperating with their captors. Navy Vice-Admiral Lowell Jacoby addressed this matter in a declaration attached to the United States's brief in the Padilla litigation in the Southern District of New York. Vice-Admiral Jacoby at the time was the Director of the Defense Intelligence Agency. He noted in the Declaration that: DIA's approach to interrogation is largely dependent upon creating an atmosphere of dependency and trust between the subject and the interrogator. Developing the kind of relationship of trust and dependency necessary for effective interrogations is a process that can take a significant amount of time. There are numerous examples of situations where interrogators have been unable to obtain valuable intelligence from a subject until months, or, even years, after the interrogation process began. Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence gathering tool. Even seemingly minor interruptions can have profound psychological impacts on the delicate subject-interrogator relationship. Any insertion of counsel into the subject- interrogator relationship, for example--even if only for a limited duration or for a specific purpose--can undo months of work and may permanently shut down the interrogation process. Specifically with regard to Jose Padilla, Vice Admiral Jacoby also noted in his Declaration that: Providing [Padilla] access to counsel now would create expectations by Padilla that his ultimate release may be obtained through an adversarial civil litigation process. This would break--probably irreparably--the sense of dependency and trust that the interrogators are attempting to create. In remarks that I submitted for the Record when the original DTA was enacted, I described some of the valuable intelligence that the United States has gained as a result of the interrogation of al-Qaida detainees. The President made a similar case in a speech that he delivered on September 6, but much better than I had done. I would like to simply quote at length, so that it is available in the Record, what the President described--why it is important that our intelligence agents be able to conduct effective interrogations of al-Qaida members. On the sixth of this month, the President stated: Within months of September the 11th, 2001, we captured a man known as Abu Zubaydah. We believe that Zubaydah was a senior terrorist leader and a trusted associate of Osama bin Laden. Our intelligence community believes he had run a terrorist camp in Afghanistan where some of the 9/11 hijackers trained, and that he helped smuggle al Qaeda leaders out of Afghanistan after coalition forces arrived to liberate that country. Zubaydah was severely wounded during the firefight that brought him into custody--and he survived only because of the medical care arranged by the CIA. After he recovered, Zubaydah was defiant and evasive. He declared his hatred of America. During questioning, he at first disclosed what he thought was nominal information--and then stopped all cooperation. Well, in fact, the ``nominal'' information he gave us turned out to be quite important. For example, Zubaydah disclosed Khalid Sheikh Mohammed--or KSM-- was the mastermind behind the 9/11 attacks, and used the alias ``Muktar.'' This was a vital piece of the puzzle that helped our intelligence community pursue KSM. Abu Zubaydah also provided information that helped stop a terrorist attack being planned for inside the United States--an attack about which we had no previous information. Zubaydah told us that al Qaeda operatives were planning to launch an attack in the U.S., and provided physical descriptions of the operatives and information on their general location. Based on the information he provided, the operatives were detained--one while traveling to the United States. We knew that Zubaydah had more information that could save innocent lives, but he stopped talking. As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA used an alternative set of procedures. These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful. I cannot describe the specific methods used--I think you understand why--if I did, it would help the terrorists learn how to resist questioning, and to keep information from us that we need to prevent new attacks on our country. But I can say the procedures were tough, and they were safe, and lawful, and necessary. Zubaydah was questioned using these procedures, and soon he began to provide information on key al Qaeda operatives, including information that helped us find and capture more of those responsible for the attacks on September the 11th. For example, Zubaydah identified one of KSM's accomplices in the 9/11 attacks--a terrorist named Ramzi bin al Shibh. The information Zubaydah provided helped lead to the capture of bin al Shibh. And together these two terrorists provided information that helped in the planning and execution of the operation that captured Khalid Sheikh Mohammed. Once in our custody, KSM was questioned by the CIA using these procedures, and he soon provided information that helped us stop another planned attack on the United States. During questioning, KSM told us about another al Qaeda operative he knew was in CIA custody--a terrorist named Majid Khan. KSM revealed that Khan had been told to deliver $50,000 to individuals working for a suspected terrorist leader named Hambali, the leader of al Qaeda's Southeast Asian affiliate known as ``J-I''. CIA officers confronted Khan with this information. Khan confirmed that the money had been delivered to an operative named Zubair, and provided both a physical description and contact number for this operative. Based on that information, Zubair was captured in June of 2003, and he soon provided information that helped lead to the capture of Hambali. After Hambali's arrest, KSM was questioned again. He identified Hambali's brother as the leader of a ``J-I'' cell, and Hambali's conduit for communications with al Qaeda. Hambali's brother was soon captured in Pakistan, and, in turn, led us to a cell of 17 Southeast Asian ``J-I'' operatives. When confronted with the news that his terror cell had been broken up, Hambali admitted that the operatives were being groomed at KSM's request for attacks inside the United States--probably [sic] using airplanes. During questioning, KSM also provided many details of other plots to kill innocent Americans. For example, he described the design of planned attacks on buildings inside the United States, and how operatives were directed to carry them out. He told us the operatives had been instructed to ensure that the explosives went off at a point that was high enough to prevent the people trapped above from escaping out the windows. KSM also provided vital information on al Qaeda's efforts to obtain biological weapons. During questioning, KSM admitted that he had met three individuals involved in al Qaeda's efforts to produce anthrax, a deadly biological agent--and he identified one of the individuals as a terrorist named Yazid. KSM apparently believed we already had this information, because Yazid had been captured and taken into foreign custody before KSM's arrest. In fact, we did not know about Yazid's role in al Qaeda's anthrax program. Information from Yazid then helped lead to the capture of his two principal assistants in the anthrax program. Without the information provided by KSM and Yazid, we might not have uncovered this al Qaeda biological weapons program, or stopped this al Qaeda cell from developing anthrax for attacks against the United States. These are some of the plots that have been stopped because of the information of this vital program. Terrorists held in CIA custody have also provided information that helped stop a planned strike on U.S. Marines at Camp Lemonier in Djibouti-- they were going to use an explosive laden water tanker. They helped stop a planned attack on the U.S. consulate in Karachi using car bombs and motorcycle bombs, and they helped stop a plot to hijack passenger planes and fly them into Heathrow or the Canary Wharf in London. We're getting vital information necessary to do our jobs, and that's to protect the American people and our allies. Information from the terrorists in this program has helped us to identify individuals that al Qaeda deemed suitable for Western operations, many of whom we had never heard about before. They include terrorists who were set to case targets inside the United States, including financial buildings in major cities on the East Coast. Information from terrorists in CIA custody has played a role in the capture or questioning of nearly every senior al Qaeda member or associate detained by the U.S. and its allies since this program began. By providing everything from initial leads to photo identifications, to precise locations of where terrorists were hiding, this program has helped us to take potential mass murderers off the streets before they were able to kill. This program has also played a critical role in helping us understand the enemy we face in this war. Terrorists in this program have painted a picture of al Qaeda's structure and financing, and communications and logistics. They identified al Qaeda's travel routes and safe havens, and explained how al Qaeda's senior leadership communicates with its operatives in places like Iraq. They provided information that allows us--that has allowed us to make sense of documents and computer records that we have seized in terrorist raids. They've identified voices in recordings of intercepted calls, and helped us understand the meaning of potentially critical terrorist communications. The information we get from these detainees is corroborated by intelligence, and we've received--that we've received from other sources--and together this intelligence has helped us connect the dots and stop attacks before they occur. Information from the terrorists questioned in this program helped unravel plots and terrorist cells in Europe and in other places. It's helped our allies protect their people from deadly enemies. This program has been, and remains, one of the most vital tools in our war against the terrorists. It is invaluable to America and to our allies. Were it not for this program, our intelligence community believes that al Qaeda and its allies would have succeeded in launching another attack against the American homeland. By giving us information about terrorist plans we could not get anywhere else, this program has saved innocent lives. I don't think that it can be seriously doubted that this intelligence would not have been obtained if these men--Khalid Shaisk Muhammed and Abu Zubaydah--had been given the right to file a habeas petition and access to a lawyer immediately after they were captured. And had we not obtained this information, lives of Americans and other innocent people would have been lost. The DTA and the MCA create a balanced and appropriate mechanism for managing the detention of alien enemy combatants. They are consistent with military tradition and our Nation's security needs. The Specter amendment would upend that system. I urge the Specter amendment's defeat.

Mr. KYL

Mr. KYL. Mr. President, I would like to make some comments regarding the pending business, H.R. 6061, the act that came to us from the House of Representatives which is titled the Secure Fence Act of 2006, the essence of which would provide the authority for the United States to construct a variety of features across large portions of our border with Mexico to prevent illegal immigration. The point of this legislation is, of course, to follow through with a series of appropriations that we have now provided for to enhance our ability to put National Guard troops at the border, construct more fencing, construct more roads, more vehicle barriers, more sensors, more lights, more cameras, and provide more Border Patrol to patrol this large area of our border. The combination of all of these, personnel and infrastructure and technology enhancements, will enable us to gain effective control of our border. I am pleased that as a result of the appropriations we have passed over the last couple of years, we are now beginning to see our efforts pay off. In many areas of the border, the enhanced security is paying off. It is noticeable. I will cite some of the statistics to point that out. I express support for this legislation because it provides a roadmap. It makes it very clear where we are going. It establishes principles by which the Department of Homeland Security can operate with the funding we have been providing and will provide in the future. The essence of the legislation, as I said, is to provide more reinforced fencing, more physical barriers, roads, lighting, cameras, and sensors. The Secretary of Homeland Security obviously will determine the appropriate sequencing of when these things are constructed and the appropriate mix as to where you put the fencing, where you put the vehicle barriers, the sensors, and so forth. The bill itself, for example, recognizes that in mountainous areas, you would be exempt from providing some of the fencing. But the bottom line is to provide a combination of things which, in concert with personnel, will make it much more difficult for illegal entry into the United States. The net result will be that it will be much more difficult for smugglers and illegal aliens to gain entry into the country, it will significantly reduce crime rates in border towns, it will clearly improve the quality of life for Arizona and for the constituents I represent, and it will preserve the fragile desert lands and archeological resources which are being destroyed by the illegal pedestrian and vehicular traffic, again particularly along the area of the border between the State of Arizona and the area of Senora in northern Mexico. Let me talk for just a moment about the environmental impact because that has been a matter of some concern to those who view this legislation as simply involving the creation of some kind of a wall. Now, let me make it clear. This is not a wall. Fencing, per se, is not a wall. In fact, part of what we would be doing here is replacing the so-called landing mat fencing, which does look like a wall, with chain link-type fencing that you can see through. There are two reasons for this. The landing mat fencing is the steel landing mats that are left over from primarily World War II that can be stood on end and welded together, embedded in concrete pilings, and represent a barrier to entry into the country. They are high and it is hard to get over them but not at all impossible. All you need is a ladder on the other side of the fence and a willingness to fall down and maybe break an arm on this side, and a lot of people do that. The fencing is deteriorating. It is very difficult to repair because of its age. And for the Border Patrol, they can't see through it, so it represents a disadvantage to them because they can't see who is amassing on the other side of the border. They can't see where rocks are being thrown from, and now rock-throwing has been a highly dangerous problem for members of the Border Patrol. So they would prefer to have either single or, even better, double fencing which they could see through and which is a more modern design than this landing mat fencing. So far from being a wall, what is contemplated in this legislation is exactly the opposite. It involves a fence which you can see through combined with other kinds of technology such as vehicle barriers, cameras with which we can see illegal entry, sensors with which we can detect it, and lights which help us to see. Now, we are not going to put the fencing along the entire border, obviously. In some parts of the border, particularly near urban communities, we will extend the fencing. In other areas, the legislation contemplates vehicle barriers. This is important because in certain flat areas of the desert, a lot of vehicles are being brought across now. Ordinarily they are stolen in the United States, taken across the border, filled with some kind of contraband, be it illegal drugs or the human cargo the Coyotes pick up, and then they bring that across the border. Frequently, those vehicles are abandoned on our side of the border, representing an environmental hazard. But what the Border Patrol has discovered is that as they have begun to get more operational control or jurisdiction over the border area because of the increased number of Border Patrol agents and vehicles and fencing and so on that we have already provided, the Coyotes and the cartels--the drug smugglers, the gangs--are fighting for this operational control of territory, and they are using weapons. What the Border Patrol tells me is that whenever they see a vehicle, they know it is a problem because it has a more valuable cargo and is likely to be defended with weapons. That is one reason they are so insistent on putting vehicle barriers in some areas of the border. In some areas, fencing will not be appropriate, and cameras will do the job. I have been in the control rooms where we have one person able to monitor many different TV screens that represent the views of many different cameras, some of which are infrared, so you can see at night. This way, you don't have to have fencing all along the border; you have cameras which can show you what is happening. When you see groups of illegal immigrants massing on the other side of the border, preparing to cross, the person in the control area calls the Border Patrol, and they are able to get to the location in time to stop the entry or to pick up the people and return them if they have already entered. Again, you don't need fencing across the entire border. It is not a wall. It is not solid fencing. It is a combination of things which, working together, will enable us to secure the border. I mentioned the environment because I think it is important for us to recognize that more fencing and these other techniques can actually help improve our environment. It does not degrade the environment. The illegal border crossing traffic has created thousands of new trails and roads on Federal lands in Arizona. I am going to submit for the Record the documentation of each of the things I am saying here rather than provide them orally, but for each of these comments I am making, there is documentation through hearings that have been held, through reports that have been issued, through stories that have appeared in newspapers and so on. For example, the Defenders of Wildlife notes that since 2002, 180 miles of illegal roads have been created in the Cabeza Prieta National Wildlife Refuge alone. This is a wildlife refuge we have set aside for the pronghorn antelope and bighorn sheep and other species we want to protect, and the entry of all of these vehicles, illegally creating these new roads, is substantially disrupting the habitat, for example, for the bighorn sheep. The illegal roads divert the normal flow of water, and they rob native plant cover of the moisture it needs to survive. The proliferation of trails and roads damages the flora and fauna--the cactus, for example, and other sensitive vegetation--and disrupts and even prevents the revegetation of the area. You can see tracks in the desert that were created over 50 or 60 years ago, and it takes that long for the fragile desert to recover. That is one of the unfortunate results of all of this illegal immigration, which could be prevented with more vehicle barriers and fencing along the border. The trails obviously create soil compacts and then erosion which, in other areas, results in damage. I have seen with my own eyes the tons of trash that is left behind. If you can imagine millions of people over the course of time trying to cross the border and leaving behind hundreds of thousands of plastic water jugs and items of clothing and elements in backpacks and the like, it is just incredible, what you see, and it creates all kinds of problems. This proliferation of trash and, by the way, concentrations of human waste, I would also note, impacts wildlife and vegetation and water quality. It detracts from the scenic qualities, obviously, and can affect human and animal health from the spread of bacteria and disease. Trash is also ingested by wildlife and livestock, which sometimes results in illness or even death of the livestock and wildlife. In the early 1990s, over 300 wildfires were caused by campfires of illegal immigrants, which additionally poses a threat both to the environment and to human safety in these areas. The damage is not limited to the compaction, and so on, by human traffic. As I noted, vehicles coming across create their own special set of problems. Abandoned vehicles are often left in place, and the burden of removing them falls to the Government, which has to very carefully try to get to the vehicles without creating new roads and trails and get them removed without causing even more environmental damage. If they are not removed quickly, they are often set on fire by vandals. They have fluids that leak into the watershed and into water courses. As I said, further removal causes additional damage as the tow trucks are forced to navigate previously unspoiled areas of the desert. Interestingly, the illegal immigrants frequently take vegetation from the environment to build shelters, and by taking a lot of the ocotillo cactus, for example, they are removing a very important species from the desert to build these camouflages, drug stashes, and temporary shelters. Also, interestingly, when illegal aliens fill water bottles in the wetland locations, it has been determined that they have actually infected these protected Federal wetlands with invasive parasites and diseases which have been carried with them in the water levels which have harmed native fish and wildlife. In fact, in a report to the House of Representatives committee, according to this report, new tapeworms and fungi have already impacted populations of endangered fish and frogs. So when we talk about the potential damage to the environment from the fences, it is easy to see that there is far more of a benefit than a cost to creating impediments to illegal entry which is creating the kind of environmental impacts I am talking about. Just to give one summary impact, Coronado National Forest, which is on the border in the area of Tucson, experienced the following environmental degradation from the period 1996 to 2006: 298 abandoned motor vehicles, 300 miles of significant damage to environmental resources caused by off-road vehicle use, 120 human-caused wildfires. There is an interesting parallel with the fence which was built in the San Diego area. There was concern about the environment there as well. But not only has the construction of that triple fence in the area of San Diego virtually stopped illegal immigration in that area, it has significantly reduced crime on both sides of the border because the criminals who used to congregate in the area are no longer congregating in the area because they can't get across. The result is the San Diego fence has significantly improved the environment in the area, with grasslands coming back and the return of protected species that hadn't been reported in the area for years. I believe all of this is an important element in that debate, demonstrating that the additional fencing and other border technology can help to prevent environmental damage. But what of the primary purpose of the fencing to prevent illegal entry? This is important for a variety of reasons. Due to the close proximity of the border to a number of major highways in the State of Arizona, illegal immigrant and drug trafficking is often intense. When smugglers can manage to reach the roads, they often resort to excessive speed, driving without lights, and driving down the wrong side of the road to escape law enforcement. There have been a lot of injuries and deaths and attacks on Border Patrol that have resulted. We had an actual shoot-out on the freeway between Tucson and Phoenix between two rival gangs who were contesting to see who could own the illegal immigrants in the van at issue. Frequently, these vans are wrecked, overturned, and a lot of illegal immigrants are killed or injured. In the one unfortunate case, in the town of Sierra Vista near the border, an elderly couple in the community had just gotten married--I believe it was the week before--and they were simply driving through an intersection, minding their own business, when, with excessive speed in order to avoid apprehension, a load of illegal immigrants came crashing through, hit their vehicle, and killed them both. You can imagine the sorrow as well as the anger in this small community when these wonderful people, who were known to many of the residents of the community, when their lives were extinguished right after they were married and looking forward to some very happy years because of this illegal activity. This has real impacts on people's lives in the United States, and that is another reason to end it. We had testimony in the subcommittee which I chair--of the Judiciary Committee--Terrorism, Technology and Homeland Security, about the number of illegal immigrants who cross who are criminals or who are wanted for crimes. It isn't just a matter of keeping people from entering the United States to work. The testimony was, by the head of the Border Patrol, that now over 10 percent of the illegal immigrants apprehended coming into this country are criminals. I am not talking about immigration violations; I am talking about serious crimes such as homicide, rape, assault, kidnapping, serious drug crimes. It is not only overloading our law enforcement and court systems, but it is also creating a huge problem at the border. The U.S. attorney for Arizona, Paul Charlton, testified that last year assaults at the border were up 108 percent. Why? Because, as I said before, the Border Patrol and law enforcement is now contesting the territory that before the cartels and the coyotes had some degree of control over, and they are fighting back. They are fighting back with weapons, and they are also fighting back with things like rocks, which you may not think is a threat until you get hit in the head with one and are severely injured and maimed, really, for the rest of your life. There is a lot to protect with more fencing, more vehicle barriers, more cameras, more sensors, and the like at our border. It is interesting that vehicle barriers, which are important because, as I said, whenever the Border Patrol sees a vehicle, they know they have a problem because of an important value in the load. Vehicle barriers have worked in the Buenos Aires National Wildlife area, for example, where there has been a 90-percent reduction. In the Organ Pipe Cactus National Monument there has been a 95 percent reduction in vehicle traffic. It can work. But we have to do it. People say we have tried it and it doesn't work. We have barely started. In fact, there are almost four times as many New York City police officers as there are members of the Border Patrol. So our effort now to build up the Border Patrol, add this fencing, add the vehicle barriers, add the cameras, and all these things to the border is beginning to have an impact. It can work. We simply have to do more. That is what this legislation would provide. I will not cite the statistics, but there is great evidence that the fencing in the San Diego area has substantially reduced the amount of illegal traffic across the border. It used to represent about half of the border crossings. It is now down to 10 percent. In the area of the triple fence, it is practically zero, I am told. The bottom line is that we can make a substantial difference by not only appropriating the money--I saw, just a moment ago, the chairman of the Budget Committee here, and the subcommittee in charge of appropriations for this effort. The Senator from New Hampshire was on the Senate floor a moment ago. I commend him again for his efforts, primarily in the last couple of years, to make funds available to do all these things. As I said, we are moving forward with this at the border, and it is beginning to make a difference. What the legislation passed in the House of Representatives will enable us to do is to have a clear path, a clear guideline of exactly what we are going to do. It provides discretion to the Department of Homeland Security about what exactly to do in what areas. It is not a fence along the entire border, it is a combination of these different things as the Department of Homeland Security deems appropriate. But we believe, in consultation with the Border Patrol, with local officials, that they can determine where best to put each of these assets and how to sequence their construction in such a way as to eventually gain control of the border, and that should be our first goal here: to establish control of the border, to secure the border so we can move on with the other elements of comprehensive immigration reform which, incidentally, I support very strongly. But I think most of us agree a first step must be to secure the border. I commend this bill to my colleagues. I hope we will be able to get cloture on Monday and we can proceed to its adoption. For those constituents in my home State of Arizona, this would be a very big benefit since over half of the illegal immigrants now entering the United States come through my State of Arizona. This is critically important for my State, but it is also important for the United States, and I hope my colleagues will join together to support this important legislation. Mr. President, I ask unanimous consent to have printed in the Record some background materials on this subject.

Mr. KYL

Mr. KYL. Mr. President, I rise today to introduce the Terrorism Prevention Act of 2006. This Act will enhance and improve the statutes governing material support for terrorism, protection of classified information, terrorist hoaxes, and terrorist murders and assaults. Specifically, the TPA expands the reach of statutes punishing material support for terrorism, making it a crime to reward the family of a suicide bomber or other terrorist with the intent to facilitate terrorism, and increases penalties for existing material support offenses; clarifies and improves the Classified Information Procedures Act in light of the lessons learned in the Moussaoui trial; expands the reach of the terrorist hoax statute, and increases penalties for hoaxes about the deaths of U.S. soldiers during wartime; increases penalties for terrorist murders, kidnappings, and assaults committed overseas against U.S. nationals, and increases penalties for terrorist crimes resulting in death; and improves the United States's ability to investigate terrorist crimes by protecting the confidentiality of FISA investigations, authorizing multi-district search warrants in terrorism cases, and increasing penalties for obstruction of justice in terrorism cases. I ask unanimous consent that a section by section analysis of the Terrorism Prevention Act be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, that letter goes to one of the points of the resolution that we are ostensibly debating, a resolution which seems to mock the phrase ``stay the course,'' claiming that the current stay- the-course policy has made America less secure. I guess it all depends on what you mean by stay the course because, if you mean by stay the course don't abandon the effort, then of course the administration and the Senate do not want to abandon the effort and therefore do want to stay the course. At least the people on this side of the aisle do not want to abandon the effort. But if it means don't change the way you are doing anything, obviously that is another matter. The problem is, it is a straw man for those on the other side to argue that the administration is not willing to change anything. The letter from Mr. Bolton to the distinguished minority leader will demonstrate the fact that, just as the enemy is agile and changes its tactics, so, too, has the United States changed the way that it deals with the enemy in Iraq. So, yes, stay the course if by that we mean don't abdicate the mission; no, if it means don't ever change the way you operate. The other part of the resolution I found rather odd was the condemnation of Secretary Rumsfeld, which for days now we heard is coming. I was rather bracing for an indictment of the Secretary of Defense who, of course, needs no one to defend him. He is an honorable and effective and totally self-sacrificing public servant who has served the President and the American people well. But I noted that the big indictment is that President Bush needs to change course in Iraq-- undefined how that change in course might operate--to provide a strategy for success--the strategy was announced over and over by the President, reiterated in his speech yesterday--and one indication of a change of course would be to replace the current Secretary of Defense. I suppose it would be. That is a bit of a tautology. But it doesn't suggest that it would do anything or accomplish anything except, perhaps, embarrass the President, perhaps undermine our credibility abroad, perhaps embolden our opponents and raise questions by our allies. That is not a very constructive proposition by our friends on the other side of the aisle. But, on the other hand, not much that they have offered is very constructive. It is easy to criticize, easy to play Monday morning quarterback. It is a little more difficult when you are in the middle of the battle, charged with the responsibility of success. I shudder to think what these Monday morning quarterbacks would have done in World War II or World War I, a day after the landing on D-day or at Iwo Jima--10,000 casualties. Or the Civil War. It occurs to me we would not be here debating as a unified nation today if one of the greatest generals in the history of America, Robert E. Lee, hadn't made a monumental mistake at Gettysburg. The reality is mistakes are made in war and it is very difficult while the war is going on, and before the historians have the context in which to reflect on it, to debate the mistakes, especially when the enemy is listening and certainly our allies and our troops are listening as well. But just to reflect on a couple of these, one comment by one of the Senators was the problem is we are trying to do a war without enough military. A lot of us on this side of the aisle have steadfastly supported a stronger more robust military. Sometimes we don't get a lot of support on the other side of the aisle for that. But the comment was we do need more troops, from a Senator who wants to withdraw our troops. I happen to agree with my colleague, the senior Senator from Arizona, who has said we need more troops. The best way to do that, at least under current circumstances, is to not withdraw an American soldier for every Iraqi trained but combine the two armies as the Iraqis are trained up in order to go into a place like Baghdad and get control. That is not reducing troops, obviously; that is enhancing the total power there. How do we get more troops if every time we train up an Iraqi an American has to leave? Or we set a timetable for leaving by the end of the year? I am at a loss to understand this notion: Our problem is we need more troops, so let's bring our troops home. I don't get it. Unless, of course, we are not concerned about the outcome--and that is the question. That, unfortunately, is the question that must be in the minds of our allies. It must be in the minds of our enemies when they hear a debate like this and they hear: We need more troops, let's bring our troops home. They must ask: Okay, what does that mean? Does it mean America is in it for winning or does it mean we are going to be leaving, and the vacuum that is created will be an opportunity to move in and do our evil deeds? The President, in his speech yesterday, was very clear about the nature of the enemy, an enemy that sees the Iraq battlefront as a central part of what he called World War III, their attempt to either make us bow down to their will or kill us or, if we succeed, they die trying. It is a win-win for them either way, according to them. The reality is, this is a battle we cannot leave. This is a fight we cannot walk away from. If we are going to win the war against the terrorists, we have to win the battle in Iraq. There is no other way around that proposition. We cannot abdicate Iraq and still hope to win this war against these radical Islamists, at least not without taking horrendous casualties and losses in the meantime until our allies and some in America determine it is worth fighting, that it is a serious enemy, that we have to do whatever it takes to win, and that includes fighting in places such as Iraq. I conclude with this notion, and the Senator from New Hampshire made the point earlier in a very eloquent way. After recounting all of the carping and criticism of what could have been done differently, he asked: Is there no credit for what we have achieved in Afghanistan, a country that was ruled by the Taliban, where women were beaten, where people were taken to the soccer stadium and shot, where little girls could not go to school and on and on, an altogether horrific place? Is there no credit for the fact that the people of Afghanistan are now free? Is there no credit for the fact that a brutal dictator who killed thousands and thousands of his own citizens, gassed many of them to death, killed hundreds of thousands of people in neighboring countries and was prepared to do battle with us, is there no credit for the fact that Saddam Hussein is gone, that his people have now been afforded the opportunity to freely elect their own government, and we are in the process of helping them secure that freedom? Is there no credit for the fact that Qadhafi decided America's will was pretty well demonstrated in Afghanistan, and he was not going to buck that will by continuing his evil way and developing nuclear weapons, so discretion being the better part of valor, he would get on the right side of history and be with us in this war? Is there no credit for any of these achievements? No, no, not when you are discussing the President of the United States, who in some circles has to be vilified in the name of political discourse. This is not the way to conduct this debate. The way to conduct a debate over the strategy and over the course of history is to have a civil discussion that does not focus on an individual in the administration--who, after all, is only one person making the decisions and who has served this country ably--but, rather, on the strategic objectives over the goals. Can anyone doubt what the goals in the war have to be? Can anyone doubt that the goal has to be to retain the ability of the country of Iraq to keep terrorists out and to ensure the safety and security of their own citizens in the future? I don't think there can be any doubt about what the goals ought to be. Yet the President was right yesterday in reiterating those goals because there appear to be some who have lost sight or who have not ever realized the true evil nature of this enemy, who don't quite comprehend what it will take to defeat this enemy, who do not connect the dots to see we cannot walk away from Iraq and still be able to defeat this enemy, the radical Islamist, both the Sunni and the Shia Islamists, the people who would do us evil if we do not stand in that way. If you do not understand the enemy, I suppose it is not hard to conclude that, because the going is getting tough in Iraq, we ought to leave. The people who believe that are very strong, as the President said, maybe quite patriotic but very wrong. It is the terrorist leaders themselves who believe that Iraq is a central battlefield in what we call the Third World War, a war that obviously the United States is leading. With our allies, we need to bring this to a successful conclusion. I quote from the President's speech the words of Osama bin Laden who said: I now address the whole Islamic nation. Listen and understand. The most serious issue today for the whole world is this third world war that is raging in Iraq. He calls it a war of destiny between infidelity and Islam and concludes that the whole world is watching this war, and it will end in victory and glory or misery and humiliation. In the latter, I think he was correct. We have to make sure that it is his misery and humiliation and the terrorists' misery and humiliation that is the result of the conflict in Iraq and not that of the United States. In order to ensure that, it is incumbent upon us to prosecute this war to a successful conclusion and not leave this difficult battlefield prematurely--in the process, by the way, support those who are working very hard on our behalf, not denigrate them. It is fine to show the loyalty and the gratitude to our troops that the resolution does, and which I do, but it is also important to show that same kind of gratitude to other people who are trying very hard to protect the American people. That includes the President of the United States and the Secretary of Defense. Exhibit 1 Response from the Chief of Staff Josh Bolten to a Democratic Letter September 5, 2006. Senate Democratic Leader Harry Reid, U.S. Senate, Washington, DC. Dear Senator Reid: Thank you for your September 4 letter to the President. I am responding on his behalf. A useful discussion of what we need to do in Iraq requires an accurate and fair-minded description of our current policy: As the President has explained, our goal is an Iraq that can govern itself, defend itself, and sustain itself. In order to achieve this goal, we are pursuing a strategy along three main tracks--political, economic, and security. Along each of these tracks, we are constantly adjusting our tactics to meet conditions on the ground. We have witnessed both successes and setbacks along the way, which is the story of every war that has been waged and won. Your letter recites four elements of a proposed ``new direction'' in Iraq. Three of those elements reflect well- established Administration policy; the fourth is dangerously misguided. First, you propose ``transitioning the U.S. mission in Iraq to counter-terrorism, training, logistics and force protection.'' That is what we are now doing, and have been doing for several years. Our efforts to train the Iraqi Security Forces (ISF) have evolved and accelerated over the past three years. Our military has had substantial success in building the Iraqi Army--and increasingly we have seen the Iraqi Army take the lead in fighting the enemies of a free Iraq. The Iraqi Security Forces still must rely on U.S. support, both in direct combat and especially in key combat support functions. But any fair-minded reading of the current situation must recognize that the ISF are unquestionably more capable and shouldering a greater portion of the burden than a year ago--and because of the extraordinary efforts of the United States military, we expect they will become increasingly capable with each passing month. Your recommendation that we focus on counterterrorism training and operations--which is the most demanding task facing our troops--tracks not only with our policy but also our understanding, as well as the understanding of al Qaeda and other terrorist organizations, that Iraq is a central front in the war against terror. Second, your letter proposes ``working with Iraqi leaders to disarm the militias and to develop a broad-based and sustainable political settlement, including amending the Constitution to achieve a fair sharing of power and resources.'' You are once again urging that the Bush Administration adopt an approach that has not only been embraced, but is now being executed. Prime Minister Nouri al- Maliki is pursuing a national reconciliation project. It is an undertaking that (a) was devised by the Iraqis; (b) has the support of the United States, our coalition partners and the United Nations; and (c) is now being implemented. Further, in Iraq's political evolution, the Sunnis, who boycotted the first Iraq election, are now much more involved in the political process. Prime Minister Maliki is head of a free government that represents all communities in Iraq for the first time in that nation's history. It is in the context of this broad-based, unity government, and the lasting national compact that government is pursuing, that the Iraqis will consider what amendments might be required to the constitution that the Iraqi people adopted last year. On the matter of disarming militias: that is precisely what Prime Minister al-Maliki is working to do. Indeed, Coalition leaders are working with him and his ministers to devise and implement a program to disarm, demobilize, and reintegrate members of militias and other illegal armed groups. Third, your letter calls for ``convening an international conference and contact group to support a political settlement in Iraq, to preserve Iraq's sovereignty, and to revitalize the stalled economic reconstruction and rebuilding effort.'' The International Compact for Iraq, launched recently by the sovereign Iraqi government and the United Nations, is the best way to work with regional and international partners to make substantial economic progress in Iraq, help revitalize the economic reconstruction and rebuilding of that nation, and support a fair and just political settlement in Iraq--all while preserving Iraqi sovereignty. This effort is well under way, it has momentum, and I urge you to support it. Three of the key proposals found in your letter, then, are already reflected in current U.S. and Iraqi policy in the region. On the fourth element of your proposed ``new direction,'' however, we do disagree strongly. Our strategy calls for redeploying troops from Iraq as conditions on the ground allow, when the Iraqi Security Forces are capable of defending their nation, and when our military commanders believe the time is right. Your proposal is driven by none of these factors; instead, it would have U.S. forces begin withdrawing from Iraq by the end of the year, without regard to the conditions on the ground. Because your letter lacks specifics, it is difficult to determine exactly what is contemplated by the ``phased redeployment'' you propose. (One such proposal, advanced by Representative Murtha, a signatory to your letter, suggested that U.S. forces should be redeployed as a ``quick reaction force'' to Okinawa, which is nearly 5,000 miles from Baghdad). Regardless of the specifics you envision by ``phased redeployment,'' any premature withdrawal of U.S forces would have disastrous consequences for America's security. Such a policy would embolden our terrorist enemies; betray the hopes of the Iraqi people; lead to a terrorist state in control of huge oil reserves; shatter the confidence our regional allies have in America; undermine the spread of democracy in the Middle East; and mean the sacrifices of American troops would have been in vain. This ``new direction'' would lead to a crippling defeat for America and a staggering victory for Islamic extremists. That is not a direction this President will follow. The President is being guided by a commitment to victory--and that plan, in turn, is being driven by the counsel and recommendations of our military commanders in the region. Finally, your letter calls for replacing Secretary of Defense Rumsfeld. We strongly disagree. Secretary Rumsfeld is an honorable and able public servant. Under his leadership, the United States Armed Forces and our allies have overthrown two brutal tyrannies and liberated more than 50 million people. Al Qaeda has suffered tremendous blows. Secretary Rumsfeld has pursued vigorously the President's vision for a transformed U.S. military. And he has played a lead role in forging and implementing many of the policies you now recommend in Iraq. Secretary Rumsfeld retains the full confidence of the President. We appreciate your stated interest in working with the Administration on policies that honor the sacrifice of our troops and promote our national security, which we believe can be accomplished only through victory in this central front in the War on Terror. Sincerely, Joshua B. Bolten, Chief of Staff.