Jon Kyl

Mr. KYL

Mr. KYL. If I could, Mr. President, just inquire of the manager of the bill, we don't have a set 30 minutes yet, but that is the desire; is that correct?

Mr. KYL. Yes.

Mr. KYL. Mr. President, I thank you. I think what we are going to be able to agree to is that after the proponents and opponents of the Schumer amendment have concluded their debate, we will have an up-or- down vote on the Schumer amendment. In either event, I believe we could at that point get a unanimous consent agreement that the study and report called for in the Kyl second-degree amendment could be voted on by voice vote. But until Senator Bond is available to confirm that, we do not need to propound that particular request. So we should simply go ahead with the debate on the underlying Schumer amendment. Given the fact that Senator Schumer just spoke in favor of that, let me simply take about 2 minutes to second what Senator Schumer did and then turn time over to an opponent of the amendment, perhaps the Senator from North Carolina.

Mr. KYL. Mr. President, my amendment would simply add a reporting requirement. Current law--known as the Schumer amendment to the Energy Policy Act of 1992--is intended to phase out U.S. exports of highly enriched uranium in order to reduce the risk of that material being stolen by terrorists or diverted by proliferating states for nuclear weapons production. The importance of phasing out these exports is glaringly obvious in the post-September 11 world, as we are confronted with terrorist- sponsoring regimes, such as North Korea and Iran, that are intent on developing nuclear weapons and terrorist organizations that would like nothing more than to attack the United States using a nuclear device. Asked several years ago about suspicions that he is trying to obtain chemical and nuclear weapons, Osama bin Laden said: If I seek to acquire such weapons, this is a religious duty. How we use them is up to us. U.S. law bars export of HEU for use as reactor fuel or as targets to produce medical isotopes, except on an interim basis to facilities that are actively pursuing conversion to low-enriched uranium. Because the United States is the world's primary supplier of HEU, the law also provides a strong incentive for such conversion, an objective that is strongly supported by Secretary of Energy Samuel Bodman's recent statement that, ``We should set a goal of working to end the commercial use of highly enriched uranium in research reactors.'' Why is this important? Unlike highly enriched uranium, low-enriched uranium cannot be used as the core of a nuclear bomb. Section 621 of the pending bill would essentially exempt HEU exports to five countries for medical isotope production from the standards set by the 1992 Schumer amendment. If enacted, it would allow foreign companies to receive U.S. HEU for use in medical isotope production ``targets'' without having to commit to converting to low-enriched uranium. Specifically, for export license approval, the new language requires only a determination that the HEU will be irradiated in a reactor in a recipient country that ``is the subject of an agreement with the United States Government to convert to an alternative nuclear reactor fuel when such fuel can be used in that reactor.'' In contrast, current law requires the proposed recipient of a U.S. HEU export to provide ``assurances that, whenever an alternative nuclear reactor fuel or target can be used in that reactor, it will use that alternative in lieu of highly enriched uranium.'' In addition, current law permits such exports only if ``the United States government is actively developing an alternative nuclear reactor fuel or target that can be used in that reactor,'' which requires the proposed recipient to actively cooperate with the United States on conversion. This is a difficult distinction, so let me be clear: current law places restrictions on exports of targets and fuel, and the Energy bill exempts targets from these restrictions. How are fuel and targets used? Fuel is used to generate the chain reaction that powers a reactor; a target is a mass of fissionable material that is irradiated to produce a medical isotope. The target is inserted in an operating reactor and then withdrawn after it has been irradiated. This change would allow countries to avoid ever having to move to an LEU target, even if it is technically feasible to do so. Furthermore, four of the five countries to which the Energy bill's exemption would apply are members of the European Union and, therefore, U.S. exports of HEU to them would be subject to the requirements of the U.S.-EURATOM Agreement on Nuclear Cooperation. Under that agreement, EURATOM countries are not required to inform the United States of retransfers of U.S. supplied materials from one EURATOM country to another or report on alterations to U.S. supplied materials. As such U.S. HEU--once transferred to one of these four countries--can go anywhere else in the EU. Given EU expansion, it is not difficult to imagine the concern this creates. The Energy bill language ostensibly exempts only five countries from current law; in practice, the number is much larger. This is all the more reason not to remove the incentive to convert to LEU. One of the gravest threats we face today is the possibility that a terrorist will obtain nuclear material and use it in an attack against the United States. It simply makes no sense to loosen our own restrictions on the export of nuclear weapon-grade uranium to countries where we do not have direct control over its security. Proponents of the new language contained in the Energy bill argue that weakening current law is needed to ensure the continued supply of medical isotopes--for the diagnosis and treatment of sick patients--and that this reality justifies any increased proliferation risk. They claim that there is a danger we will run out of these isotopes. But we have seen no compelling evidence that the United States is in danger of running out of medical isotopes. Our main supplier--a Canadian company called Nordion--has stockpiled over 50 kg of U.S.- origin HEU, which is enough to make one simple nuclear bomb or two more sophisticated bombs. Indeed, Nordion has enough U.S.-origin bomb-grade uranium to produce medical isotopes for the next three to four years. [Source: Union of Concerned Scientists and the Nuclear Control Institute] Supporters of the language in the Energy bill seem to be concerned that Nordion will cut off from U.S.-HEU exports and that will result in an isotope deficiency. But that claim does not mesh with the facts. Nordion produces about 40 percent of the world's supply of medical isotopes today; worldwide production capacity is 25 percent of current wordwide demand. That means that, even without Nordion's medical isotopes, production could still reach 210 percent of world demand. Finally, it is important to note that no company has ever been denied an export license under the Schumer amendment for HEU to be used in targets for medical isotope production AND current law has, as intended, incentivized countries to begin to convert to LEU. The Netherlands is one good example; conversion of that country's Petten reactor (to LEU fuel) is scheduled to be completed by 2006. Senator Schumer's amendment, which I strongly support, strikes section 621 of H.R. 6. Maintaining current law restrictions will ensure that the United States plays an active role in encouraging other countries to convert to using low-enriched uranium. All that they must do in order to continue to receive U.S. HEU exports is agree to convert to low-enriched uranium--which cannot be used as the core of a nuclear bomb--when it becomes technically and economically possible to do so and actively cooperate with the United States on that conversion. This is not unreasonable. And, as I mentioned, there is no danger of running out of medical isotopes at this time--the largest supplier to the United States currently has a surplus of U.S. HEU and worldwide maximum production capacity is more than twice demand. My second-degree amendment would simply add a requirement for a report from the National Academy of Sciences. That report includes an analysis of: The effectiveness of current law (the Schumer amendment) in compelling conversion to low-enriched uranium; the likely consequences with respect to nonproliferation and antiterrorism initiatives of removing current restrictions; Whether implementation of current law has ever caused an interruption in the production and supply of medical isotopes to the U.S.; and Whether the U.S. supply of isotopes is sufficiently diversified to withstand an interruption of production from any one supplier. It is prudent to conduct such a comprehensive study before we even consider lifting the restrictions in current law, as opposed to after lifting them, as the Energy bill language would do. The report would be due 18 months after enactment of the Energy bill. So, even if Nordion were cut off from U.S. exports tomorrow, the due date would be long before Nordion's surplus HEV runs out.

Mr. KYL

Mr. KYL. This history is in the appendix to ``Hawaii Divided Against Itself Cannot Stand,'' an analysis of the 1993 apology resolution and S. 147, the Native Hawaiian Government Reorganization Act, that was prepared by constitutional scholar Bruce Fein. I previously have introduced earlier parts of that analysis into the Record--this is the third and final instalment. The appendix to Mr. Fein's analysis carefully explains the nature of the Hawaiian monarchy, its evolution toward constitutional democracy, the attempt by the last monarch to undercut those reforms and compromise the judiciary, and the actors involved in stopping that monarch and establishing a democratic republic. This account is a useful antidote to the tendentious blame-America narrative provided in the 1993 apology resolution. The truth is much more nuanced than the resolution's ``Whites vs. Natives'' account. The real story is about a multiracial constitutional monarchy slowly evolving toward democratic norms and equal rights--a process whose final step was the admission of Hawaii as a State in the Union. That step was approved in 1959 by 94 percent of Hawaii's voters--large majorities of non-Natives and Natives alike. The Native Hawaiian Government Act would undo that step--Hawaii's admission to the Union as a unified people and State. Indeed, it would even undo the progress made under the Kamehameha monarchy. That constitutional monarchy was not a monoracial institution. It included Hawaiians of all races. This bill would create, for the first time in Hawaii since the early 19th century, a government of one race only. This is not progress. I urge my colleagues to read Mr. Fein's history, and to ask themselves why we would want to undo the achievements of past generations of Hawaiians by enacting S. 147 and creating a race-based government in Hawaii. Exhibit 1 [From the Grassroot Institute of Hawaii, Jun. 1, 2005] Hawaii Divided Against Itself Cannot Stand (By Bruce Fein)

Mr. KYL. Madam. President, I rise today to ask unanimous consent that the following account of the history of the Hawaiian monarchy be printed in the Record following my present remarks.

Mr. KYL

Mr. KYL. Madam President, first, I have been here for most of the remarks of the senior Senator from West Virginia, who has this evening caused me to reflect on my father on this Father's Day. I am sad to say that my father has now passed on, and that fact has caused me to think about things I probably should have thought a lot more about before he left. But it is good to be reminded of the qualities we look for in fathers and in our fathers, those who have led the way for us, and that as Father's Day approaches, I join my colleague from West Virginia in suggesting that we would all do well not only to think back on our fathers and set a good example but to think about what makes a good father in everything we do, and in whatever our roles are, to try to follow those precepts. I appreciate the important words spoken by the Senator from West Virginia.

Mr. KYL

Mr. KYL. Madam President, one of the things I remember that my father taught me--and it has stood me in good stead, though I have not always followed the advice--is to have strong convictions but always to deal in moderation and be reasonable in your approach, to listen to other people and try to be responsible in what you say. In all things, moderation would have applied to the advice he gave me frequently. Again, not to say one should not have strong views, but you can be more effective in communicating those views if you treat people decently, if you listen to what they have to say, and if you express your own views with a degree of humility and moderation. That is something that, sad to say, even in my relatively short time in the Congress, I have seen adhered to, sadly, less and less. Certainly, the Senator from West Virginia sets a standard for all of us in the way that he treats this body, the revere he has for the institution and, therefore, the care he takes to deal in this body in an appropriate and responsible way, in the great tradition of the body. I mention that because the coarsening of our language, I suppose, can be expected to be manifested first in the political environment. It certainly has occurred with increasing intensity over the years, though, not just in political campaigns but even on the floor of the Senate and engaged in by colleagues in the Congress as well as pundits and others. Strong subjects sometimes evoke strong emotions, and perhaps that explains why some of the rhetoric surrounding the discussion of our detention of enemy combatants at Guantanamo Bay has reached such a high-pitched level, to such a high degree of hyperbole and exaggeration--I daresay, in some cases, irresponsible characterizations. If this were simply a matter of political rhetoric and partisan politics, I suppose that in some senses it could be excused, though it is not helpful. But here the consequences of such language, this over- the-top kind of rhetoric, can actually be detrimental to the effort of the United States that all of us support--certainly to the people we put in harm's way, our men and women in the military, and the other services that are helping us to fight the war on terror. This is why it distresses me to hear the characterizations of American activities and Americans as being equated with some of the worst actors in the history of mankind--phrases thrown around, apparently, somewhat thoughtlessly, without due regard for the consequences, when enemies of the United States seize on the flimsiest of things to take to the streets and riot and kill each other. The unfortunate reporting of Newsweek Magazine--which turned out not to be true--regarding desecration of the Holy Koran caused Muslims in the world--thousands and thousands--to riot and cause harm to each other. I believe there were at least three deaths that resulted, if I am not mistaken. Words have consequences, and when Americans speak in irresponsible terms about the actions of Americans who are simply trying to do their best in trying circumstances, in ways that denigrate their motives, denigrate their actions, and that call into question the entire character of America, because of these actions, it is irresponsible. And it should not be engaged in, especially it should not be countenanced by Members of this body or the Congress, certainly not engaged in by leaders in this body. Yet, sad to say, we all have heard in the last few days this kind of language. I will get back to that in a moment. Let me go back and try to provide some perspective about this entire debate about Guantanamo Bay. Guantanamo Bay is a place where the United States Government has had a lease from the Cuban Government for a long time and spent about $150 million to build a prison facility to house many of the people who had been detained in the war on terrorism, primarily people who were on the battlefield in Afghanistan, there being no facilities adequate in Afghanistan. It is a place that was designed to be able to accommodate people of different cultures. It is significantly managed by Americans who have a significant degree of medical background and training in the culture of Islam in order to ensure that the people there are treated as humanely as possible under the circumstances and with due regard for not only their human rights but their faith as well. This country need apologize to no one in the way that over the years we have tried to adhere to human rights standards and treat people of faith appropriately. Certainly the stories--and I say ``stories'' because in most cases, they are mere allegations that are untrue--of treatment of people at Guantanamo Bay have raised the interest of Americans because we are a people who instinctively pull back from such kind of conduct. We do not want to be even against terrorists engaged in inhumane activity. That is why these stories have such resonance. Yet this facility, which takes care of these people in some respects even better than the troops there--in terms of the sleeping quarters, meals, and so on--this facility is as good, I think, as any prisoner of war facility in recent memory and certainly with the attention of the media, the International Red Cross, visits by American officials--there have been thousands of visits. It is a very wide open facility in that sense. With all of this attention, I think the very small number of specific complaints that have been investigated and found to have any merit at all--something like five in number--is a testament to the commitment of the United States to adhere to standards of decency and humanity when dealing with people. Who are these people? These are the worst of the worst. We do not have the time or the ability to round up people and hold them for the sake of it. It is too costly. Over 10,000 people have been captured in this war against the terrorists. Something like 520 are at Guantanamo Bay. These are the people who are the bombmakers, the bodyguards of Osama bin Laden, the financiers, the plotters, the people who have been sent out to be assassins, to be suicide bombers. These are the worst of the worst, the killers who, if let go, will return to their killing. Since the detentions at Guantanamo Bay, the United States Supreme Court has said there is one right that these detainees have, and that is a right to have their status determined, even through a habeas corpus petition, which in the United States means a right to have questioned the appropriateness of your being detained. The Supreme Court did not hold they have a right to a trial, that they have a right to be charged with anything, that they have a right to a particular kind of legal proceeding. Simply, they have a right to have their status reviewed by an appropriate tribunal. And since then, their status has been reviewed, every one of them. There is a process by which it is reviewed annually to determine whether they not only are still appropriately held, but whether they need to be held, whether they pose a threat. In this period of time, a dozen of these detainees--many were released, something like 200, as I recall--a dozen have already been recaptured on the battlefield. They went right back to killing Americans. This is why prisoners of war are detained when captured, and it has thus been throughout modern history. In World War II, for example, we have all seen the movies and read about the internment camps of Germans and Japanese and, of course, the way Americans were held as POWs as well. With the rare exception of the people at the very top of the Nazi Government and a few of the Nazi generals, the German POWs were not charged with crimes or tried for those crimes. They were simply held in these camps until the end of the war. A couple of these camps were in Arizona. I know an Arizona physician who went through one of these camps, I believe in Nebraska. When he got out, he decided he liked America a whole lot and became a renowned physician in Phoenix. These were places that people were held until the end of the war so they could not go back to fighting against Americans. That is precisely the primary purpose of Guantanamo Bay. For the worst of the worst, the people we do not want to go back fighting against us or committing terror against anyone else, we have to have a place to detain them. I must say, in a debate with the senior Senator from Vermont last night on television--and he and I disagreed generally about this issue--he acknowledged this is not about Guantanamo Bay. As he said, we have to have a place to hold these people, and I agree with that proposition. Some have even suggested we close this brand-new facility. If you close it, where are you going to put them? Would you like to take one of the military bases that is being closed in your State and make it available for these detainees? Maybe that is the place to detain them. I do not think so. The issue is not closing Guantanamo Bay. I think it is, frankly, criticism of the American Government and leaders of the American Government. Some people do it for partisan political purposes. Others do it, to bring down certain people. Others, frankly, have a disregard for this country and are quick to criticize almost anything we do. But look at some of the specific charges. One of them is these people are being held in limbo. They are not being held in limbo any more than any other prisoner of war or enemy combatant has been held in the past. They are being held until the conflict is over so they do not go back to fighting us again. Then they demand to know of the general and admiral who were before the Senate Judiciary Committee yesterday when we held a hearing on this: Well, how long are they going to be detained? We demand to know. We do not know how long the war is going to last, Senator. I demand to know. Will it be forever? What if the war lasts for forever, will they be detained forever? These are pretty silly questions, if you ask me. We do not want to detain these people. We would like not to have to do it. We would like to bring the war to a close, but until it is safe to release them, they are not going to be released, not unless we are going to jeopardize the service people and others who are subject to terrorism. So let's get back to reason and solid logic here. Another question is, Why are we treating these people possibly a little bit differently than other prisoners of wars have been treated? The answer is they are not prisoners of war. That does not mean we do not treat them humanely and in accordance with the Geneva Conventions. That is another charge, that we violated the Geneva Conventions. No, we have not. No, we have not. The United States adheres to the Geneva Conventions, and we have not violated them, and we do not intend to. Enemy combatants are not entitled to the protection of the Geneva accords to which prisoners of war are entitled. The reason for the Geneva accords for the POWs is we want to reward people who adhere to the laws of war. What does that mean? They fight for a country, they wear the uniform of that country, they adhere themselves to the rules of war. In the case of terrorists, that does not apply. They do not fight for a country, they fight for a cause. They do not wear a uniform. They do not fight by the rules of war. They kill innocent people indiscriminately. That is their modus operandi. That is their preferred action. That is why they are enemy combatants, not prisoners of war. So we would not have to accord them any standards of treatment except that we are the United States of America and we say, and the President has said and Secretary Rumsfeld and everyone else in the Government has said, for the United States of America it is inappropriate to do anything less than treat people humanely, and we will not violate the Geneva accords. So even though they are not entitled to all of the rights of prisoners of war, there are standards of treatment that have been established and have been adhered to. In the few situations in which there is an allegation that maybe those standards might have been violated in some small way, the people have been held responsible who have violated the standards. I think there have been five cases of dealing inappropriately with the Koran at Guantanamo Bay, not having both hands on it at once or not having a white glove when dealing with a prisoner. It is that kind of violation. This kind of thing has been compared by some to Pol Pot and Nazi Germany and the Soviet gulag and the human rights abuses that the United Nations complains about each year. These comparisons are not apt. They are not responsible. They are not appropriate. They do not even begin to appropriately describe the kind of conduct that our people have engaged in and the crimes against humanity that were referred to. To even think of them in the same sense is unthinkable. What about the question about charging them? There is a suggestion they should either be charged or released. Well, this is not a fishing contest. This is not catch and release. This is serious. This is war. When somebody is trying to kill you and you can detain them, you do it. The alternative is, obviously, you kill them. But hopefully you do not have to kill them; you can detain them, and you can put them in a place that, until the end of the war, is safe for them and safe for you. For those who have committed war crimes, we have the option of charging them with such crimes, and there is a special tribunal set up to try them for those crimes, and they can be tried. Now, there are cases in the courts of appeal right now that are helping to define the parameters of those trials and until that is very clear those will not proceed, but that is the way we will deal with those cases. So for those that can be tried, obviously we will do that, but that is a very small percentage. There is no point in charging prisoners of war or enemy combatants with anything because the whole point of their being held is to prevent them from going back to war against you. The final purpose for this detention is intelligence gathering. We have found that human intelligence is the best intelligence and that the highest percentage of human intelligence is the interrogation that has occurred here and elsewhere that has led us to learn a lot about the techniques of the terrorists, their plans, the names of others, and other important information that has helped us save lives. So the point of this detention is to save lives, to keep people from killing us, and to get information that will help us to prevent future killing. That is an appropriate purpose of Guantanamo. So when people use irresponsible language, when they seem to leap to conclude that the United States must have done wrong simply because a lawyer or some group or a prisoner has alleged abuse--and by the way, remember that the al-Qaida training includes a manual instruction on how to allege that they are being abused as a prisoner, as a detainee. They are supposed to allege abuse, and they do. So let us not jump to the conclusion that any al-Qaida terrorist who alleges abuse at Guantanamo Bay must be right and all of the Americans, from the President on down, must be wrong. I like to put my chances on Americans trying to do the right thing. We will make mistakes, but we will try to correct those mistakes and punish those responsible. In the meantime, I think the benefit of the doubt goes to those people whom we have given a very hard job to do. To get back to my original point, the use of irresponsible language, irresponsible charges, has consequences. It can hurt those people that we put in harm's way by turning international public opinion against the United States. When responsible American officials make irresponsible charges, all the world listens. When they listen, sometimes they react very badly. It does our cause no good when--as some of my colleagues have said, this is all about winning the hearts and minds of the Muslim world. There is a great deal of truth in that. It does no good in that battle to denigrate our own actions in a way that is calculated to or one must know will inflame the passions of terrorists and others around the world that support the terrorists. It does no good to this ultimate goal of winning hearts and minds to unduly criticize America, Americans and American leaders for actions that are nothing more than what any Nation has the right to do when it captures people who have been engaged in combat or terrorism against it. I urge my colleagues to keep this issue in perspective, to understand the reason we detain people, to understand the impact of irresponsible language, to tone down the rhetoric, understand that the President and all acting on his behalf are trying their very best to do what we want them to do, and at the end of the day, this is all about winning the war on terror, saving American lives and moving on to a more peaceful world.

Mr. KYL

Mr. KYL. Mr. President, I congratulate Miriam Strauss of Apache Middle School in Sierra Vista, AZ for her National History Day Project entitled, ``Franklin D. Roosevelt's Fireside Chats.'' Miriam's project, along with seven others from around the Nation, was chosen from among more than 2,000 finalists for presentation and display at the White House Visitor's Center on June 15, 2005. Her project was part of this year's National History Day theme, ``Communication: The Key to Understanding.'' The National History Day program includes half a million students in grades six through twelve in all 50 States and the District of Columbia, so the selection of Miriam's project for presentation is a tremendous honor. I wish this budding historian the best of luck in the future.

Mr. KYL

Mr. KYL. Mr. President, I rise today to ask unanimous consent that the following analysis of S. 147, the Native Hawaiian Government Reorganization Act, prepared by constitutional scholar Bruce Fein, be entered into the Record following my present remarks. Mr. Fein's analysis of the act builds on his analysis of the 1993 apology resolution, which was printed in the Record yesterday. Mr. Fein's present analysis ably demonstrates why the Native Hawaiian Government Act is at war with the U.S. Constitution's guarantees of rights and its limits on governmental power. The bill is particularly offensive to the fundamental principle of equal protection of the laws. I commend Mr. Fein's analysis of the act to my colleagues.

Mr. KYL

Mr. KYL. Mr. President, I rise today to ask unanimous consent that the following analysis of the 1993 Hawaii apology resolution, prepared by constitutional scholar Bruce Fein, be entered into the Record following my present remarks. To be sure, I do not think that the nature of the events that led to the end of the Kamehameha monarchy is relevant to the question whether we should establish a race-based government in Hawaii today. I believe that America is a good and great Nation, and that all Americans should be proud to be a part of it. The United States does not deserve to have its government carved up along racial lines. Nevertheless, proponents of racially separate government in Hawaii have advanced their arguments for S. 147, the Native Hawaiian Government Reorganization Act, in terms of history. It is thus instructive to take a close look at that history. [The Grassroot Institute of Hawaii, Jun. 1, 2005] Hawaii Divided Against Itself Cannot Stand--An Analysis of the Apology Resolution (By Bruce Fein)

Mr. KYL

Mr. KYL. Mr. President, a column published recently by Lino A. Graglia in the Wall Street Journal, and another by Charles Krauthammer in the Washington Post, frame particularly well the debate we are having in the Senate on judicial nominations. I ask unanimous consent that these columns be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, it is every citizen's duty to know American history. One fact we must reckon with is that our experiment in self- government began in a compromise with the existence of slavery. As the American experiment went forward, protections granted to slavery in the Constitution--a document that never explicitly mentioned slavery--were dismantled. The cost was great: Brother fought against brother in the Civil War, largely over whether ``the peculiar institution'' would be allowed to thrive in the United States. When, at the end of that terrible conflict, the 13th amendment was put in the Constitution, slavery was abolished. Yet while a pernicious institution was now, thankfully, illegal, its aftereffects were still felt in the former slave States. Postwar reconstruction was supposed to restore the natural and the civil rights of the former slaves and their descendents; but State and local authorities did not enforce those rights. The lynching of African Americans, and other forms of persecution, would persist into the 20th century, to the shame of every decent citizen. Candidly facing this history is important. We must not forget the wrongs of the past--nor that we have had leaders willing to come forward and stand against those wrongs. From the Continental Congress passing the Northwest Ordinance of 1787, which banned slavery in the region northwest of the Ohio River, to the words and deeds of Frederick Douglass and Abraham Lincoln, to the civil rights movement of the 1960s, brave men and women reaffirmed for all of us the principles of human equality and consent of the governed on which our Nation was founded. Lincoln declared: ``Those who deny freedom to others deserve it not for themselves, and under a just God, cannot long retain it.'' I support Senate Resolution 39 in the name of honesty and national unity. As Senators representing Americans of all colors and creeds, we ought to give due recognition to past injustices. Even more importantly, we ought to live today by Lincoln's dictum. We must make sure our laws and our practices always reflect our belief in individual worth and equality under the law. This belief held in common is what has helped Americans--whatever their race, religion, or background--to succeed.

Mr. KYL

Mr. KYL. Mr. President, the George C. Marshall Institute will honor Dr. James Schlesinger on June 16 with its Founders Award, which is given annually in recognition of distinguished contributions to science and public policy. This year's award acknowledges Dr. Schlesinger's stellar career in public service. James Schlesinger served three presidents as Director of the Central Intelligence Agency, Secretary of Defense, and Secretary of Energy. His career has been a model of dedication to public service, and has been marked by his intelligence, integrity, and commitment to our Nation's well being. We continue to benefit from his wisdom, strength of character, and willingness to contribute when called. Dr. Schlesinger's insight and expertise--both during and after his time in government--have been instrumental in winning key policy battles. For example, his active role in the national debate over the Comprehensive Test Ban Treaty aided those Senators, myself included, who argued strongly that ratifying the treaty would lead to the decline of our nuclear weapons infrastructure and would damage U.S. national security interests. There is no doubt that Dr. Schlesinger's stature and contribution were instrumental in bringing about the treaty's defeat. Since that time, I have continued to regularly consult with him on the future of our nuclear capability and other issues. Indeed, Dr. Schlesinger's advice on a broad range of key national security issues has been invaluable; I am grateful for his counsel. The Marshall Institute should be commended for recognizing a true national treasure, Dr. James Schlesinger.

Mr. KYL

Mr. KYL. Mr. President, I understand that the senior Senator from Oregon, Mr. Wyden, spoke yesterday regarding the reauthorization of the USA PATRIOT Act. I look forward to the Senate acting later this year on PATRIOT Act reauthorization, but today I just want to address one aspect of the Senator's speech, his opposition to administrative subpoena power. In his speech, the Senator argued that any reauthorization should not extend those subpoena powers to FBI terrorism investigators. He correctly noted that Intelligence Committee Chairman Roberts has held hearings about extending this authority, which is common within the Government, to FBI agents investigating terrorism. I was happy to see Chairman Roberts do this because last year I cosponsored S. 2555, the Judicially Enforceable Terrorism Subpoenas Act. On June 22, 2004, I chaired a hearing in the Judiciary Subcommittee on Terrorism, Technology, and Homeland Security that examined this subpoena power and heard testimony regarding how the subpoenas work and how the government protects civil liberties when using them. One of the things that struck me as I learned about administrative subpoena power was how widespread it is in our Government and how unremarkable a law enforcement tool it really is. It was for that reason that I asked the Senate Republican Policy Committee, which I chair, to examine this issue in greater detail, to study the constitutional and civil liberties questions that critics have raised, and to identify the other contexts where the Federal Government has this power. The resulting report was consistent with my previous research and the testimony that I had heard during my subcommittee hearings. We give this subpoena power to postal investigators and Small Business Administration bank loan auditors and IRS agents, and we do not have a problem with Government abuse or deprivation of civil liberties. Shouldn't we also give it to those who are charged with rooting out terrorism before it strikes our neighborhoods? I look forward to the upcoming debate on PATRIOT Act reauthorization, and I certainly intend to support it. At the same time, I commend Chairman Roberts for his efforts and hope that we will have the opportunity to ensure that our FBI terrorism investigators are not hamstrung as they continue to work to protect our Nation. I ask unanimous consent that this policy paper, dated September 9, 2004, be printed in the Record.

Mr. KYL

Mr. KYL. I would like to speak for 10 minutes.

Mr. KYL

Mr. KYL. Mr. President, I rise in very strong support of John Bolton to be our next ambassador to the United Nations. I have known Mr. Bolton for a long time. He is a great individual, a great representative of the United States, and, most importantly, the person the President wants to represent the United States at the United Nations. It is the responsibility of the Senate to act on his nomination because the President has requested us to do so. Mr. Bolton has successfully championed a number of multilateral initiatives during the time he has been working for the Bush administration. He is committed to the success of the United Nations and sees it as an important component of our diplomacy and is a strong voice for U.N. reform. I am concerned that a lot of debate has shifted to matters that have nothing to do with his qualifications and some of which attempt to assassinate his character. There is no question he is qualified for the job. In fact, Mr. Bolton has been confirmed by this body on four separate occasions previously. Most of the Members objecting to him now have voted for him in the past. They did so based upon his substantive views, not any allegations about his conduct. A lot of it has to do with the fact that there is opposition to President Bush's policy in different regards, and Mr. Bolton's nomination is a surrogate, in effect, for a debate about that policy. We can have a debate about the President's foreign policy, but we should not hold up the nomination of a man with the qualifications of John Bolton for a position we need to fill in the process of having that debate. Moreover, I am concerned about some of the charges that have been made about him. One of the allegations--the Senator from Connecticut was speaking about this--has to do with some requests Mr. Bolton made which have been examined by the Intelligence Committee. Mr. Bolton's job at the State Department is to deal with this kind of information, and what the Intelligence Committee did in response to the request of the chairman of the Foreign Relations Committee was to look into the matter. Here is the response, on May 25, just quoting two paragraphs from the letter of the chairman of the Senate Intelligence Committee. He said: After completing an examination of these issues I found no evidence that there was anything improper about any aspect of Mr. Bolton's requests for minimized identities of U.S. persons. I further found no violation of procedures, directives, regulations or law by Mr. Bolton. Moreover, I am not aware that anyone involved in handling these requests had any concerns regarding these requests at any point in the process. The chairman of the Intelligence Committee also said: Committee staff interviewed INR analysts and NSA officials responsible for processing requests for the identities of U.S. persons contained in signals intelligence products. None of the individuals interviewed indicated there was anything improper or inappropriate about Mr. Bolton's requests. We also were briefed by General Michael Hayden, former Director of the NSA and the current Principal Deputy Director of National Intelligence. He also stated that Under Secretary Bolton's requests were not only appropriate, but routine. In fact, INR records indicate that since May 2001, INR submitted 489 other requests for minimized identities. Ten, by the way, had been requested by Mr. Bolton. So what Mr. Bolton did was routine and proper. There was nothing improper about it. As the chairman of the committee noted, they found absolutely nothing that would suggest anything improper in Mr. Bolton's activities. This is all a smokescreen. There is nothing there. The last point on this matter had to do with the fact that the Senate, it is alleged, should have access to all of these names. This has nothing to do with Mr. Bolton's qualifications to be the U.S. Representative at the United Nations. But there is some feeling that until Senators have access to these names, we should not act on the Bolton nomination. Talk about a non sequitur, the Senate routinely does not have access to these names. They are highly classified. They get into the sources and methods of our intelligence. It is appropriate for certain people in the administration to gain access to the names, which is why, as is noted, there were 489 requests for those names by people within the administration--10 of which came from Mr. Bolton. There was nothing wrong with that. As to whether Senators want access to these names, if that is something we need to take up with the intelligence community, the Intelligence Committee is entirely capable of doing that, but it has nothing to do with Mr. Bolton's qualifications to serve and our need to act on his nomination. I suggest we cut through all of this smokescreen and get to the question of whether John Bolton is qualified to serve in the position the President would like to have him serve. That is the real question. Let me note a couple of other things I am aware of that he has done in his position of Under Secretary of State for Arms Control and International Security. Probably the most significant and, frankly, one of the most significant achievements of the State Department itself in the last 4 years was John Bolton's initiative to develop the President's Proliferation Initiative. Over 60 countries are now participating in that initiative, and it is, frankly, one of the key reasons we disarmed Libya with its nuclear program. John Bolton has played a key role in the implementation--creation and implementation--of the G-8 Global Partnership Against the Proliferation of WMD and WMD Materials. Under that program, we have doubled the size of the nonproliferation effort in the former Soviet Union by committing our G-8 partners to match our dollars with programs under the so-called Nunn-Lugar CTR effort. He was instrumental in concluding U.N. Security Council Resolution 1540, which for the first time identifies proliferation of weapons of mass destruction as a threat to international peace and security--a resolution, by the way, that was adopted unanimously. He has been a big advocate of U.N. reform. For example, while serving as Assistant Secretary of State for International Organizations, he detailed his concept of a ``Unitary U.N.'' that sought to ensure management and budget reforms across the U.N. system, and that is something that is sorely needed. Almost everybody acknowledges that the U.N. needs this kind of reform today. John Bolton is the guy who has worked tirelessly on this effort, including, by the way, the payment of arrearages in U.N. assessments that were created during the 1980s. In that same capacity, he led the effort to repeal perhaps the most heinous resolution in U.N. history, the resolution equating Zionism with racism. He also served as a member of the Commission on Religious Freedom. He has been there. He has fought on behalf of the United States. He has been an effective diplomat. Yes, he is a tough guy. People have noted that. Do we want a weak Representative at the United Nations? Especially today? I don't think so. President Bush is the person who has talked to all of these diplomats and Presidents and representatives of countries around the world. He has a good feel of what it takes at the United Nations now. None of us has the President's experience in knowing all these world leaders. The President has thought about this and said, knowing all these people, the way they act, how we use diplomacy at United Nations: I think the best guy to represent the United States at this point in time is my man John Bolton. He is the man I want to send there. We ought to acknowledge that the President knows a little bit about foreign policy and foreign affairs, having worked with all these people, and probably has a pretty good idea of what it takes to get our country's interests represented well at the United Nations. John Bolton is the man he wants us to confirm in that position. There are a variety of other things Mr. Bolton has worked on with respect to U.N. reform and efforts to reform the International Atomic Energy Agency and a variety of other items. I will conclude by noting that we all appreciate the fact that the United Nations needs reform, and John Bolton is a person who can accomplish that reform. He has accomplished a great deal in the matter that is primarily of importance to us these days--the proliferation of weapons of mass destruction and the war on terror. I believe all the charges made against him have been answered, of course--they have been answered in spades--but we ought to move beyond all that smokescreen and get back to the central point, which is John Bolton is the man the President wants at the United Nations, he has been confirmed by this body four times before, there is no question about his qualifications and his desire, and the Senate needs to uphold the great tradition of this body by acting on--debating, certainly, but acting on the President's nominees and confirming John Bolton by 7 o'clock tonight.

Mr. KYL

Mr. KYL. Mr. President, today I am pleased to join with Senator McCain to introduce the Southeast Arizona Land Exchange and Conservation Act of 2005. This bill, which facilitates an important land exchange in Arizona, is the product of months of discussion between the United States Forest Service, Bureau of Land Management, State and local officials, community groups, recreational and conservation groups, and other stakeholders. It will allow for the protection of some of the most environmentally sensitive lands in Arizona while providing a much needed economic engine for the people of Superior, AZ and the surrounding communities. An identical companion bill is being introduced today in the House of Representatives by Representative Renzi. The exchange conveys approximately 3,025 acres of land controlled by the Forest Service to Resolution Copper Company. The acreage to be traded to Resolution Copper will facilitate future exploration, and possible development, of what may be one of the largest deposits of copper ore ever discovered in North America. The 3,025 acres are intermingled with, or lie next to, private lands already owned by Resolution Copper, and are located south and east of Resolution's existing underground Magma copper mine. Approximately 75 percent of the 3,025 acre Federal parcel is already blanketed by federally authorized mining claims owned by Resolution Copper that give Resolution the right to explore and develop mineral deposits on it. Given the intermingled ownership, the public safety issues that may be associated with mining activities, and the significant financial investment Resolution Copper must make to even determine whether development of a mine is feasible, it makes sense, for Resolution Copper to own the entire mining area. However, we also recognize that there is public resource value associated with the Federal land that would come into private ownership and, to the extent we can, we should protect and or replace these resources. The Apache Leap Escarpment, a spectacular cliff area comprising approximately 562 acres on the western side of the federal parcel, is an area deserving of protection. To protect the surface of this area from mining and development, the bill requires that a permanent conservation easement be placed on this area. In addition, the bill sets up a process to determine whether additional or enhanced public access should be provided to Apache Leap and, if so, provides that Resolution Copper will pay up to $250,000 to provide such access. The bill also requires replacement sites for the Oak Flat Campground and the climbing area that are located on the Federal parcel that will be traded to Resolution Copper. The process to locate replacement sites is already under way, and I am told it is going well. Access to these public areas will not immediately terminate on enactment of this legislation: The bill allows continued public use of the Oak Flat Campground for two years after the enactment and it allows for continued rock climbing use for two years after, and use of the land for the annual ``Boulder Blast'' rock climbing competition for five years after enactment. Replacement sites will be designed and developed largely with funding provided by Resolution Copper. I am also working with Resolution Copper and community groups to determine whether there may be additional climbing areas within the Federal parcel that could continue to be accessible to the public without compromising public safety or the mining operation. I have included a placeholder in the bill for such additional climbing provisions if agreed to. In return for conveying the Federal land parcel to Resolution Copper, the Forest Service and Bureau of Land Management will receive six parcels of private land, totaling 4,814 acres. These parcels have been identified, and are strongly endorsed for public acquisition, by the Forest Service, BLM, Arizona Audubon Society, Nature Conservancy, Sonoran Institute, Arizona Game and Fish Department, and numerous others. The largest of the six parcels is the Seven B Ranch located near Mammoth. It runs for 6.8 miles along both sides of the lower San Pedro River--one of the few remaining undammed rivers in the southwestern United States. The parcel also has: one of the largest, and possibly oldest, mesquite bosques in Arizona; a high volume spring that flows year round; and potential recovery habitat for several endangered species, including the southwestern willow flycatcher. It lies on an internationally recognized migratory bird flyway, with roughly half the number of known breeding bird species in North America passing through the corridor. Public acquisition of this parcel will greatly enhance efforts by Federal and State agencies to preserve for future generations the San Pedro River and its wildlife and bird habitat. A second major parcel is the Appleton Ranch, consisting of 10 private inholdings intermingled with the Appleton-Whittell Research Ranch, adjacent to the Las Cienegas National Conservation Area southeast of Tucson. This acquisition will facilitate and protect the study of southwestern grassland ecology and unique aquatic wildlife and habitat. Finally, the Forest Service will acquire four inholdings in the Tonto National Forest that possess valuable riparian and wetland habitat, water resources, historic and cultural resources, and habitat for numerous plant, wildlife and bird species, including the endangered Arizona hedgehog cactus. Although the focus of this bill is the land exchange between Resolution Copper and the United States, it also includes provisions allowing for the conveyance of Federal lands to the Town of Superior, if it so requests. These lands include the town cemetery, lands around the town airport, and a Federal reversionary interest that exists at its airport site. These lands are included in the proposed exchange to assist the town in providing for its municipal needs and expanding its economic development. Though I have described the many benefits of this exchange, you may be asking why we are legislating this land exchange. Why not use the existing administrative land exchange process? The answer is that this exchange can only be accomplished legislatively because the Forest Service does not have the authority to convey away federal lands in order to acquire other lands outside the boundaries of the National Forest System, no matter how ecologically valuable. Of primary importance to me is that the exchange have procedural safeguards and conditions that ensure it is an equal value exchange that is in the public interest. I will highlight some of the safeguards in this legislation: First, it requires that all appraisals of the lands must follow standard Federal practice and be performed in accordance with appraisal standards promulgated by the U.S. Department of Justice. All appraisals must also be formally reviewed, and approved, by the Secretary of Agriculture. Second, to ensure the Federal Government gets full value for the Federal parcel it is giving up, the Federal parcel will be appraised to include the minerals and appraised as if unencumbered by the private mining claims that detract from the fair market value of the land. These are important provisions not required by Federal law. They are especially significant given that over 75 percent of the Federal parcel is covered by mining claims owned by Resolution Copper and the bulk of the value of the Federal parcel is expected to be the minerals. Third, it requires that the Apache Leap conservation easement not be considered in determining the fair market value of the Federal land parcel. I believe by following standard appraisal practices and including these additional safeguards in the valuation process, the United States, and ultimately the taxpayer, will receive full fair market value for both the land and the minerals it contains. In summary, with this land exchange we can preserve lands that advance the important public objectives of protecting wildlife habitat, cultural resources, the watershed, and aesthetic values, while generating economic and employment opportunities for State and local residents. I hope we approve the legislation at the earliest possible date. It is a winning scenario for our environment, our economy, and our posterity.

Mr. KYL

Mr. KYL. Mr. President, today I am pleased to join with Senator McCain to introduce the Southeast Arizona Land Exchange and Conservation Act of 2005. This bill, which facilitates an important land exchange in Arizona, is the product of months of discussion between the United States Forest Service, Bureau of Land Management, State and local officials, community groups, recreational and conservation groups, and other stakeholders. It will allow for the protection of some of the most environmentally sensitive lands in Arizona while providing a much needed economic engine for the people of Superior, AZ and the surrounding communities. An identical companion bill is being introduced today in the House of Representatives by Representative Renzi. The exchange conveys approximately 3,025 acres of land controlled by the Forest Service to Resolution Copper Company. The acreage to be traded to Resolution Copper will facilitate future exploration, and possible development, of what may be one of the largest deposits of copper ore ever discovered in North America. The 3,025 acres are intermingled with, or lie next to, private lands already owned by Resolution Copper, and are located south and east of Resolution's existing underground Magma copper mine. Approximately 75 percent of the 3,025 acre Federal parcel is already blanketed by federally authorized mining claims owned by Resolution Copper that give Resolution the right to explore and develop mineral deposits on it. Given the intermingled ownership, the public safety issues that may be associated with mining activities, and the significant financial investment Resolution Copper must make to even determine whether development of a mine is feasible, it makes sense, for Resolution Copper to own the entire mining area. However, we also recognize that there is public resource value associated with the Federal land that would come into private ownership and, to the extent we can, we should protect and or replace these resources. The Apache Leap Escarpment, a spectacular cliff area comprising approximately 562 acres on the western side of the federal parcel, is an area deserving of protection. To protect the surface of this area from mining and development, the bill requires that a permanent conservation easement be placed on this area. In addition, the bill sets up a process to determine whether additional or enhanced public access should be provided to Apache Leap and, if so, provides that Resolution Copper will pay up to $250,000 to provide such access. The bill also requires replacement sites for the Oak Flat Campground and the climbing area that are located on the Federal parcel that will be traded to Resolution Copper. The process to locate replacement sites is already under way, and I am told it is going well. Access to these public areas will not immediately terminate on enactment of this legislation: The bill allows continued public use of the Oak Flat Campground for two years after the enactment and it allows for continued rock climbing use for two years after, and use of the land for the annual ``Boulder Blast'' rock climbing competition for five years after enactment. Replacement sites will be designed and developed largely with funding provided by Resolution Copper. I am also working with Resolution Copper and community groups to determine whether there may be additional climbing areas within the Federal parcel that could continue to be accessible to the public without compromising public safety or the mining operation. I have included a placeholder in the bill for such additional climbing provisions if agreed to. In return for conveying the Federal land parcel to Resolution Copper, the Forest Service and Bureau of Land Management will receive six parcels of private land, totaling 4,814 acres. These parcels have been identified, and are strongly endorsed for public acquisition, by the Forest Service, BLM, Arizona Audubon Society, Nature Conservancy, Sonoran Institute, Arizona Game and Fish Department, and numerous others. The largest of the six parcels is the Seven B Ranch located near Mammoth. It runs for 6.8 miles along both sides of the lower San Pedro River--one of the few remaining undammed rivers in the southwestern United States. The parcel also has: one of the largest, and possibly oldest, mesquite bosques in Arizona; a high volume spring that flows year round; and potential recovery habitat for several endangered species, including the southwestern willow flycatcher. It lies on an internationally recognized migratory bird flyway, with roughly half the number of known breeding bird species in North America passing through the corridor. Public acquisition of this parcel will greatly enhance efforts by Federal and State agencies to preserve for future generations the San Pedro River and its wildlife and bird habitat. A second major parcel is the Appleton Ranch, consisting of 10 private inholdings intermingled with the Appleton-Whittell Research Ranch, adjacent to the Las Cienegas National Conservation Area southeast of Tucson. This acquisition will facilitate and protect the study of southwestern grassland ecology and unique aquatic wildlife and habitat. Finally, the Forest Service will acquire four inholdings in the Tonto National Forest that possess valuable riparian and wetland habitat, water resources, historic and cultural resources, and habitat for numerous plant, wildlife and bird species, including the endangered Arizona hedgehog cactus. Although the focus of this bill is the land exchange between Resolution Copper and the United States, it also includes provisions allowing for the conveyance of Federal lands to the Town of Superior, if it so requests. These lands include the town cemetery, lands around the town airport, and a Federal reversionary interest that exists at its airport site. These lands are included in the proposed exchange to assist the town in providing for its municipal needs and expanding its economic development. Though I have described the many benefits of this exchange, you may be asking why we are legislating this land exchange. Why not use the existing administrative land exchange process? The answer is that this exchange can only be accomplished legislatively because the Forest Service does not have the authority to convey away federal lands in order to acquire other lands outside the boundaries of the National Forest System, no matter how ecologically valuable. Of primary importance to me is that the exchange have procedural safeguards and conditions that ensure it is an equal value exchange that is in the public interest. I will highlight some of the safeguards in this legislation: First, it requires that all appraisals of the lands must follow standard Federal practice and be performed in accordance with appraisal standards promulgated by the U.S. Department of Justice. All appraisals must also be formally reviewed, and approved, by the Secretary of Agriculture. Second, to ensure the Federal Government gets full value for the Federal parcel it is giving up, the Federal parcel will be appraised to include the minerals and appraised as if unencumbered by the private mining claims that detract from the fair market value of the land. These are important provisions not required by Federal law. They are especially significant given that over 75 percent of the Federal parcel is covered by mining claims owned by Resolution Copper and the bulk of the value of the Federal parcel is expected to be the minerals. Third, it requires that the Apache Leap conservation easement not be considered in determining the fair market value of the Federal land parcel. I believe by following standard appraisal practices and including these additional safeguards in the valuation process, the United States, and ultimately the taxpayer, will receive full fair market value for both the land and the minerals it contains. In summary, with this land exchange we can preserve lands that advance the important public objectives of protecting wildlife habitat, cultural resources, the watershed, and aesthetic values, while generating economic and employment opportunities for State and local residents. I hope we approve the legislation at the earliest possible date. It is a winning scenario for our environment, our economy, and our posterity.

Mr. KYL

Mr. KYL. Mr. President, I want to respond to a statement that the Senior Senator from West Virginia made yesterday. In his remarks, the Senator conceded the legitimacy of the constitutional option, what he called the ``nuclear option,'' as a way for the Senate to determine its practices and procedures. The option is, of course, the leader's right to obtain a ruling from the presiding officer that certain actions of Senators are dilatory and cannot preclude the Senate from voting on a judicial nomination. Here is what he said: ``The so-called nuclear option has been around for a long time. It doesn't take a genius to figure that out.'' He went on to explain that this constitutional option had been available since at least 1917, and he repeatedly emphasized that this tool has been around ``for a long time.'' I appreciate this acknowledgment from the Senator from West Virginia, because I know he has studied the history of the Senate, and I know he has intimate familiarity with the workings of the Constitutional Option. There is nothing new about the constitutional option, as I discussed in my May 19 floor speech outlining the legal and constitutional rationale for its exercise. The constitutional option is simply the Senate's exercise of its power to define its own procedures--a power that comes directly from the Constitution and has been affirmed by the Supreme Court. (U.S. v. Ballin, 144 U.S. 1 (1892)) I appreciate that the Senator has acknowledged its legitimacy. The Senator from West Virginia also argued, however, that past majority leaders have never used the constitutional option to ``tamper'' with extended debate. As my May 19 statement established, as did yesterday's statements by Senators McConnell, Hatch, and Bennett, that is not actually the case. The fact is that the Senator himself used the constitutional option four times when serving as majority leader--in one case to outright eliminate the filibuster for motions to proceed to Executive Calendar nominations. Moreover, in February 1979, he forced the minority to agree to a formal rules change after credibly threatening that he would exercise the constitutional option. At that time, the Senator said on this floor, ``if I have to be forced into a corner to try for a majority vote, I will do it because I am going to do my duty as I see my duty, whether I win or lose.'' The Senate was nearly forced into a similar ``corner'' this week. Had Democrats not supported cloture on Priscilla Owen today, then all Senators would have had to make a conclusive decision as to whether it should take 60 or 51 votes to confirm a judge. Instead, we are putting off that decision until another day. That may still come. And if it does come, I hope that we hear no more talk of the ``illegitimacy'' of the constitutional option. There is plenty to discuss as to whether exercising the option is prudential in a particular case. Some of the debate these past few days has addressed that prudential question, including some of the discussion from the Senator from West Virginia. But there has also been talk about the constitutional option being a case of ``lawlessness'' or ``breaking the rules to change the rules.'' The constitutional option is a part of Senate history. In Senator Byrd's words, it ``has been around for a long time.'' And it will always be with us. The constitutional option is not, as the minority leader has repeatedly insisted, ``off the table.'' It is simply unnecessary at present. If it becomes necessary again, we may be called on to live up to our responsibilities to the Constitution and to the Senate to ensure that we restore our traditions and guarantee up- or-down votes to all judicial nominees who reach the Senate floor.

Mr. KYL

Mr. KYL. Mr. President, reserving the right to object, since I was to speak at 9:30, I want to intervene. I will withhold depending upon what my colleagues say in the spirit of the latest agreement to see whether it is necessary to comment, and if not then I won't, but otherwise I will not object to the request that has been made.

Mr. KYL

Mr. KYL. Mr. President, I rise today to introduce the Streamlined Procedures Act. This legislation will reduce delays in federal courts' review of habeas corpus petitions filed by State prisoners. Currently, many Federal habeas corpus cases require 10, 15, or even 20 years to complete. These delays burden the courts and deny justice to defendants with meritorious claims. They also are deeply unfair to victims of serious, violent crimes. A parent whose child has been murdered, or someone who has been the victim of a violent assault, cannot be expected to ``move on'' without knowing how the case against the attacker has been resolved. Endless litigation, and the uncertainty that it brings, is unnecessarily cruel to these victims and their families. As President Clinton noted of the 1996 habeas-corpus reforms, ``it should not take eight or nine years and three trips to the Supreme Court to finalize whether a person in fact was properly convicted or not.'' For the sake of all parties, we should minimize these delays. The 1996 habeas corpus reforms were supposed to prevent delays in Federal collateral review. Unfortunately, as the Justice Department noted in testimony before the House Crime Subcommittee in March 2003, there still are ``significant gaps [in the habeas corpus statutes] . . . which can result in highly protracted litigation, and some of the reforms that Congress did adopt in 1996 have been substantially undermined in judicial application.'' The Streamlined Procedures Act is designed to fill some of these gaps. First, the SPA imposes reasonable but firm time limits on court of appeals' review of Federal habeas petitions. It requires a court of appeals to decide a habeas appeal within 300 days of the completion of briefing, to rule on a petition for rehearing within 90 days, and to decide a case on rehearing within 120 days before the same panel, or 180 days before an en banc court. As generous as these time limits are, they would make a real difference in some cases. In Morales v. Woodford, 336 F.3d 1136, 9th Cir. 2003, for example, the Ninth Circuit took 3 years to decide the case after briefing was completed. And after issuing its decision, the court took another 16 months to reject a petition for rehearing. Similarly, in Williams v. Woodford, 306 F.3d 665, 9th Cir. 2002, the court waited 25 months to decide the case--and then waited another 27 months to reject a petition for rehearing, for a total delay of almost 4\1/2\ years after appellate briefing had been completed. This is too long for either defendants or victims to have to wait. The SPA also bars courts of appeals from rehearing successive- petition applications on their own motion--current law bars petitions for rehearing or certiorari for such applications, but some courts have interpreted this restriction to not preclude rehearing by the court of appeals sua sponte. The SPA also bars Federal courts from tolling the current 1-year deadline on filing habeas claims for reasons other than those authorized by the statute, and clarifies when a State appeal is pending for purposes of tolling the deadline. In addition, the SPA creates uniform, clear procedures for review of procedurally improper claims. Current judicial caselaw creates a series of different standards for addressing claims in a Federal petition that were not exhausted in state court, that were presented in a late amendment, or that were procedurally defaulted. The SPA sets a uniform standard, allowing procedurally improper claims to go forward only if they present meaningful evidence that the defendant did not commit the crime, with all other improper claims barred. The SPA also expands and improves the special expedited habeas procedures authorized in chapter 154 of the United States Code. These procedures are available to States that establish a system for providing high-quality legal representation to capital defendants. Chapter 154 sets strict time limits on Federal court action and places limits on claims. Currently, however, the court that decides whether a State is eligible for chapter 154 is the same court that would be subject to its time limits. Unsurprisingly, these courts have proven resistant to chapter 154. The SPA would place the eligibility decision in the hands of a neutral party--the U.S. Attorney General, with review of his decision in the DC Circuit, which does not hear habeas appeals. The SPA also makes chapter 154's deadlines more practical by limiting the claims that can be raised under its provisions to those presenting meaningful evidence that the defendant did not commit the crime, and by extending the time for a district court to review and rule on a chapter 154 petition from 6 months to 15 months. The SPA also eliminates duplicative Federal review of minor sentencing errors that already have been judged by State courts to be harmless or not prejudicial. It limits Federal courts to asking only whether the type of sentencing error at issue is one that could not have been harmless. The SPA also applies the deferential review standard enacted in the 1996 reforms to all pending cases. Remarkably, some current habeas petitions still are not governed by the 1996 reforms. The SPA corrects this oversight, ending the need to apply the pre-1996 legal regime to any cases that still are being litigated today. And finally, the SPA limits judicial review of State clemency and pardon decisions, guaranteeing that a State won't be sued for formalizing and regularizing its pardon procedures; it limits defendants' ability to ask Federal courts for investigatory funds without allowing prosecutors to be present and rebut defense allegations; and it guarantees a crime victim's right to be notified of, to be present at, and to speak at a criminal defendant's Federal habeas hearing. To many people, the issues addressed by the SPA--petitions for rehearing, State remedies exhaustion, procedural default, chapter 154, AEDPA deference--may seem abstract and remote. For surviving crime victims, however, these matters can be very concrete. A case recently in the news illustrates the importance of these concerns: that of the man who murdered three member of the Ryen family and Christopher Hughes in Chino Hills, California in June 1983. The killer in that case was an escaped convict from a nearby prison. He has since admitted that he spent 2 days hiding in a vacant house next to the home of the Ryen family. After several unsuccessful telephone calls to friends asking them to give him a ride, the killer took a hatchet and buck knife from the vacant house and set out to find a vehicle. The California Supreme Court describes the rest of what occurred, 53 Cal.3d 771, 794-95: On Saturday, June 4, 1983, the Ryens and Chris Hughes attended a barbecue in Los Serranos, a few miles from the Ryen home in Chino. Chris had received permission to spend the night with the Ryens. Between 9 and 9:30 p.m., they left to drive to the Ryen home. Except for Josh [the Ryen's 8- year-old son], they were never seen alive again. The next morning, June 5, Chris's mother, Mary Hughes, became concerned when he did not come home. A number of telephone calls to the Ryen residence received only busy signals. [Mary's husband] William went to the Ryen home to investigate. William observed the Ryen truck at the home, but not the family station wagon. Although the Ryens normally did not lock the house when they were home, it was locked on this occasion. William walked around the house trying to look inside. When he reached the sliding glass doors leading to the master bedroom, he could see inside. William saw the bodies of his son and Doug and Peggy Ryen on the bedroom floor. Josh was lying between Peggy and Chris. Only Josh appeared alive. William frantically tried to open the sliding door; in his emotional state, he pushed against the fixed portion of the doors, not the sliding door. He rushed to the kitchen door, kicked it in, and entered. As he approached the master bedroom, he found Jessica on the floor, also apparently dead. In the bedroom, William touched the body of his son. It was cold and stiff. William asked Josh who had done it. Josh appeared stunned; he tried to talk but could only make unintelligible sounds. William tried to use a telephone in the house but it did not work. He drove to a neighbor's house seeking help. The police arrived shortly. Doug, Peggy, Chris, and Jessica were dead, the first three in the master bedroom, Jessica in the hallway leading to that bedroom. Josh was alive but in shock, suffering from an obvious neck wound. He was flown by helicopter to Loma Linda University Hospital. The victims died from numerous chopping and stabbing injuries. Doug Ryen had at least 37 separate wounds, Peggy 32, Jessica 46, and Chris 25. The chopping wounds were inflicted by a sharp, heavy object such as a hatchet or axe, the stabbing wounds by a weapon such as a knife. The escaped prisoner who committed this crime was caught 2 months later. Again, he admitted that he stayed in the house next door, but denied any involvement in the murders. According to the California Supreme Court, however, the evidence of defendant's guilt was ``overwhelming.'' Not only had the defendant stayed at the vacant house right next door at the time of the murders; the hatchet used in the murders was taken from the vacant house; shoe prints in the Ryen house matched those in the vacant house and were from a type of shoe issued to prisoners; bloody items, including a prison-issue button, were found in the vacant house; prison-issue tobacco was found in the Ryen station wagon, which was recovered in Long Beach; and defendant's blood type and hair matched that found in the Ryen house. Defendant was convicted of the murders and sentenced to death in 1985, and the California Supreme Court upheld the defendant's conviction and sentence in 1991. The defendant's Federal habeas proceedings began shortly thereafter, and they continue to this day--22 years after the murders. In 2000, the defendant asked the courts for DNA testing of a blood spot in the Ryen house, a t-shirt near the crime scene, and the tobacco found in the car. Despite the overwhelming evidence of his guilt, the courts allowed more testing. All three tests found that the blood and saliva matched defendant, to a degree of certainty of one in 320 billion. Blood on the t-shirt matched both the defendant and one of the victims. One might have thought that this would end the case. Not so. In February 2004, the en banc Ninth Circuit sua sponte authorized defendant to file a second habeas petition to pursue theories that police had planted this DNA evidence. Since the evidence had been in court custody since 1983, the Ninth Circuit's theory not only required police to plan and execute a vast conspiracy to plant the evidence--it also required them to foresee the future invention of the DNA technology that would make that evidence useful in future habeas proceedings. The Streamlined Procedures Act would have made a difference in this case. For example, it would have eliminated the need to return to state court to exhaust new claims, reducing the delay in the Federal proceedings by nearly 3 years. It would have applied the 1996 reforms to this case, allowing deferential review of state factual findings and legal analysis. It would have placed time limits on Federal appeals court decisionmaking and grants of rehearing. And it would have prevented the court of appeals from ordering rehearing of the defendant's successive-petition application on its own motion, thereby barring the current round of O.J. Simpson-style conspiracy-theory litigation. The SPA could have brought this case to closure a long time ago. And this case deserves to be brought to closure. One cannot underestimate the grievous impact that crimes like these have on the families of the victims. Mary Hughes, the mother of 11-year-old Christopher Hughes, who was sleeping over at the Ryen house on the night of the murders, has spoken movingly of the loss of her son: Christopher Hughes loved his bicycle, swimming and showing off for his mom and dad. The 11-year-old's bedroom was filled with swimming trophies and Star Wars collectibles. He was a handsome kid who was chased by a lot of fifth-grade girls on the playground during recess at Our Lady of the Assumption in Claremont. He wasn't short on friends, either. Christopher really liked Joshua Ryen, an 8-year-old boy who lived up the street from him. They would trick-or-treat together on Halloween, play together, and their parents were good friends. On the night of June 4 1983, Christopher asked his parents if he could spend the night at the Ryen house. It was a decision that would change the Hughes family forever. [Mary Hughes'] son Christopher would have been 32 today. She sometimes wonders who he would have been, what he would've looked like, and even during her most solemn moments, she wonders what life would've been like if Cooper had never gone to the Ryens' house. ``It never really ever gets better,'' she said. ``Kevin Cooper robbed him of the chance to be a child, to attend his first dance, to have a girlfriend, and to one day get married and have kids of his own. He robbed me of my child.'' Mary Ann Hughes does have one special memory of her son she holds close to her heart. A week before his death, she took him to see the movie ``Return of the Jedi.'' ``He was so happy. It was such a great day,'' she said. ``It seems like such a small thing, but it's the best memory I have of both of us.'' (Sara Carter, ``He Was at the Beginning of His Life When He Died,'' Inland Valley Daily Bulletin, February 9, 2004.) In light of how much the surviving family already has suffered, one might expect that all participants in the criminal proceedings would take great concern and care for the feelings of the family. Unfortunately, that has not been the case. The Ninth Circuit has proved willing to turn the appeals into a three-ring circus, allowing continual pursuit of the most frivolous conspiracy theories. The impact of these now 22 years of trial and appeals on the victims' families has been predictable: they feel that they and the victims have become irrelevant to the entire process. Shortly after the Ninth Circuit authorized an additional round of appeals in this case, a local newspaper described what the families have experienced: For nearly 20 years, since convicted murderer Kevin Cooper was sentenced to death for the 1983 slayings of a Chino Hills family and their young houseguest, families of the victims have waited silently for the day the hand of justice would grant them peace. For those families, the last two decades have seemed like an eternity. ``I lived through a nightmare,'' said Herbert Ryen, whose brother Douglas Ryen was among those killed, along with Douglas' wife Peggy, their 11-year-old daughter Jessica, and her 10-year-old friend Christopher Hughes. [O]n the morning of Feb. 9, [2004,] the day of Cooper's scheduled death by lethal injection, word came down that the 9th U.S. Circuit Court of Appeals had decided to block the execution. [T]o the Ryen and Hughes families, the stay just hours before Cooper's scheduled execution at San Quentin State Prison was nearly incomprehensible. The indefinite delay has left them in a sort of emotional limbo, questioning whether the legal system had abandoned them. ``The bottom line is that this whole issue is not about Kevin Cooper . . . it is about the death penalty,'' said Mary Ann Hughes, the mother of Christoper Hughes. ``We're so mad-- mad because we feel as though the courts turned their back on my son.'' ``They (Court of Appeals) are holding us hostage,'' Hughes said. For Herbert Ryen and his wife Sue, waiting for justice has taken an equally destructive toll on their lives. The torment their family experienced following the murders, and the subsequent years lost to depression, could never be replaced, he said from his home in Arizona. Mary Ann Hughes said the pain her family suffers is only amplified by the seemingly continuous bombardment of celebrities campaigning against Cooper's execution. She wonders who will cry out in anger for the victims. One former television star and anti-death penalty activist, Mike Farrell of the popular series MASH, spoke of the case on a recent news program. ``He claimed that we must feel relieved since the stay of execution was granted,'' Hughes said. ``How can (Farrell) have the audacity to say he knows what we are feeling?'' Farrell could not be reached for comment. Since Christopher's death, the Hughes family has chosen to remain out of the media spotlight. And until recently, their efforts were successful, due largely to the support of their surviving children, family members and a strong network of close friends, Hughes said. The court's decision Feb. 9 has re-opened the case, forcing the families to re-live the nightmare they have fought so hard to leave behind, they say. Mary Ann Hughes is left wondering about other families who have had loved ones taken from them, about the legal battles they have had to endure in their own quests for justice. She thinks of the parents of Samantha Runion, the 5-year- old Orange County girl who was murdered in 2003, and of what her family could face in the next 20 years. For Bill Hughes, the anguish is intensified--he will forever know the pain of walking into the Ryens' home the morning after the murders, and finding his son, dead and covered in blood near the Ryens' bedroom door. He was also the first to discover Joshua Ryen, also drenched in blood, clinging to life. ``It is a memory he will always have to live with,'' Mary Ann Hughes said. Indeed, time has been no friend to the victims' families, as California's recent appellate court ruling has further denied them closure, she added. ``What this decision has done to our legal system in California is unthinkable,'' she said. ``Somewhere along the line, the courts have got to uphold the law, and we will wait it out until they do.'' (Sara Carter, ``Families of Murder Victims Wait for Justice in Cooper Case,'' Inland Valley Daily Bulletin, February 24, 2004.) Mary Hughes' story demonstrates why the use of Federal judicial power must be measured and fair it illustrates the heavy cost imposed by judicial excess. No statement, however, better explains the gross cruelty caused by allowing endless litigation and appeals in a case like this than that given by one of the surviving victims of the 1983 attack. Josh Ryen was 8 years old when he was stabbed in his parents' bedroom and his parents and sister were murdered. He is now 30 years old. On April 22, 2005, he gave a statement pursuant to the recently enacted Crime Victims' Rights Act in the federal habeas corpus hearing for his parents and sister's killer. I will close my remarks by asking unanimous consent that Josh Ryen's statement be printed in the Record.

Mr. KYL

Mr. KYL. These precedents--in 1977, 1979, 1980, and in 1987--bear directly on the situation the Senate faces today. In those instances, Senate business was being obstructed by dilatory tactics that had not traditionally been employed but which were permitted under the rules. The Senate faced the same conundrum as it does today: Must the Senate permit rule by the minority, or can it exercise its constitutional power to restore traditional practices? In each case, the Senate did the latter. It created precedents that altered the practices and procedures and, in some cases, operation of the standing rules themselves in order to ensure that tradition was upheld. What did not happen as a result of these earlier exercises of the constitutional option? Well, first, the Senate did not collapse or become ``like the House of Representatives,'' which is the fear of many Senators today. Second, Senators' speech rights are just as strong as ever. Nor were Americans' free speech rights injured, as some Senators say will happen. Third, minority rights were not destroyed. The Senate minority is as vibrant as ever and has been remarkably successful in obstructing the business of the Senate, whether we are talking about the Energy bill, medical liability lawsuit reform, asbestos reform, tax relief, or other issues. Before I close, I would like to address concerns that some of my conservative friends have recently expressed. Some are fretting that Republicans are taking a dangerous step by restoring the traditional up-or-down vote standard for judicial nominees. My friends argue that Republicans may want to filibuster a future Democratic President's nominees. To that I say, I do not think so. And even if true, I am willing to give up that tool. It was never a power we thought we had in the past, and it is not one likely to be used in the future, unless that longstanding tradition is abdicated. I know some insist we will someday want to block judges by filibuster, but I know my colleagues. I have heard them speak passionately, publicly and privately, about the injustice done to filibustered nominees. I think it highly unlikely that they will shift their views simply because the political worm has turned, again, if we sustain the tradition of the Senate. So I say to my friends what you say that we Republicans are losing is in fact no loss at all. My friends also argue that the legislative filibuster will be next. I have even seen some media outlets insist that this exercise of the constitutional option for judicial filibusters will automatically apply to the legislative filibuster. This is completely false. Moreover, no Republican Senator wants to eliminate the legislative filibuster and few, if any, Democrats do. Some once did, but they recently recanted. In fact, the junior Senator from California said she was ``wrong . . . totally wrong'' ever to have thought otherwise. Everyone here knows that political fortunes change. It is one thing to give this supposed ``right'' that had never been used, such as this filibuster of judicial nominees. It is quite another to be so shortsighted as to eliminate such a powerful legislative tool. In fact, the first vote I ever cast as a Senator was to preserve the legislative filibuster, and I was in the majority. But I think it is important to acknowledge, in the interest of intellectual honesty, that if the majority wanted to eliminate the filibuster for all matters, including legislation, it would have certainly had that power. It would be wildly imprudent, contrary to tradition, generally destructive of the institution, but that is what the Constitution provides--the power of the Senate to govern itself. In closing, I say to my colleagues what we are contemplating doing is in the best traditions of the Senate. We are restoring our consensus practices for managing the judicial confirmation process using a tool that has been repeatedly used and has always been available. I look forward to completing this debate so that we can start voting on individual judicial nominees and turn to the pressing legislative matters of the Senate. Exhibit 1 [From the Washington Times, May 19, 2005.] A Unique Case of Obstruction (By Senator Bob Dole) In the current debate over judicial nominations, some commentators claim Republicans such as myself are misrepresenting history by suggesting the current filibuster tactics of the Democrats are unprecedented. These commentators cite the 1968 nomination of Abe Fortas to be chief justice of the United States as an example of how Republicans once attempted to block a judicial nomination on the Senate floor. I welcome the opportunity to respond to this claim, because the more Americans learn about the history of judicial nominations, the more they will realize how terribly off-track our confirmation process has become. In 1968, President Lyndon Johnson sought to elevate his longtime personal lawyer, then-Associate Supreme Court Justice Abe Fortas, to be chief justice. I would not be elected a senator for a few more months, but followed the news surrounding this nomination closely. There were problems with the Fortas nomination from the beginning. Not only did he represent the most aggressive judicial activism of the Warren court, but it soon became apparent Justice Fortas had demonstrated lax ethical standards while serving as an associate justice. For example, it emerged Fortas had taken more than $15,000 in outside income from sources with interests before the federal courts. This was more than 40 percent of his salary at the time, or about $80,000 in today's dollars. More fundamentally, Fortas never took off his political hat when he became a judge. While serving as a Supreme Court justice, Fortas continued serving as an informal political adviser to the president and even involved himself in Vietnam War policy. It later emerged Fortas had discussed pending cases with the president, an obvious violation of professional ethics. In fact, less than a year after his nomination as chief justice was withdrawn by President Johnson, Justice Fortas was forced to resign from the Supreme Court due to ethical breaches. The claim Fortas was not confirmed due to a ``filibuster'' is off-base. A filibuster, commonly understood, occurs when a minority of senators prevents a majority from voting up-or- down on a matter by use or threat of permanent debate. That simply did not happen with Fortas, where the Senate debated the nomination's merits quite vigorously. Senators exposed the ethical issues involved and the widespread belief the vacancy had been manufactured for political purposes. They sought to use debate to persuade other senators the nomination should be defeated. After less than a week, the Senate leadership tried to shut down debate. At that time, two-thirds of the senators voting were needed to do so, yet only 45 senators supported the motion. Of the 43 senators who still wished to debate the nomination, 24 were Republicans and 19 were Democrats. President Johnson saw the writing on the wall--that Fortas did not have 51 senators in support of his nomination--so he withdrew the nomination before debate could be completed. The events of 37 years ago contrast markedly with those the Senate faces today: (1) Fortas lacked majority support when President Johnson withdrew his nomination. Today, Senate Democrats block up-or- down votes on judicial nominees who are supported by a majority of senators. (2) Justice Fortas was politically associated with President Johnson and eventually resigned from the Supreme Court under an ethical cloud. No such charges have been made against President Bush's nominees. (3) The Senate debated the Fortas nomination only for several days before Johnson withdrew the nomination, versus the four years some of President Bush's nominees have been pending. It's clear the Democrats today have no desire to persuade, and have even complained further debate is a ``waste of time.'' (4) Fortas' support and opposition were bipartisan, with Republicans and Democrats on both sides of the question. Today, the controversy is purely partisan--with only Democratic senators, led by their leader Harry Reid, opposing an up-or-down vote. I recall two judicial nominations of President Clinton's particularly troubling to me and my fellow Republican members when I was the Republican Leader in the Senate. Despite our objections, both received an up-or-down vote on the Senate floor. In fact, I voted to end debate on one of these nominees while voting against his confirmation. Republicans chose not to filibuster because it was considered inappropriate for nominations to the federal bench. By creating a new 60-vote threshold for confirming judicial nominees, today's Senate Democrats have abandoned more than 200 years of Senate tradition. For the first time, judicial nominees with clear majority support are denied an up-or-down vote on the Senate floor through an unprecedented use of the filibuster. This is not a misrepresentation of history; it's a fact.

Mr. KYL. Secondly, I would like to very briefly remind my colleagues of the fact that when we talk about the numbers of judges President Bush has nominated who have been confirmed, it is important for us to remember that there has never been any controversy with respect to district court judges. Almost all Presidents' district court judges are confirmed. Those are recommended for nomination usually by Members of the Senate, and it is rare, indeed, that we would object to each other's recommendations. Instead, for all Presidents there is a very high number of district court judges confirmed. And indeed, that was the case with President Clinton and has been the case so far with President Bush. So when talking about the numbers of judges confirmed, and wondering what the fuss is all about, our constituents might want to focus on the fact that what the other side usually does not talk about is the fact that the judges that are not being confirmed are circuit court judges. These are the judges directly below the U.S. Supreme Court. There are not very many of them. They are very important. And these are the judges who are being filibustered by the minority. How many? Well, in the case of President Bush, in his first term--and none have been confirmed now at the beginning of his second term, so this is the full story--35 of the President's 52 nominees have been confirmed. That is only a confirmation rate of two-thirds or 67 percent. And that puts that at the lowest percentage of any President in our modern history. This chart says ``ever.'' And that is what we are talking about here, the 10 filibusters and 6 other threatened filibusters last year of the President's circuit court judges who have been filibustered and, as a result, have never received an up-or-down vote. That is what is troubling us. So I want folks to understand that instead of talking about almost 200 judges confirmed, and only a very few rejected, what we are talking about is the circuit court judges. And of those, only 35 of 52 have been confirmed. That is what this is all about. And these are the judges directly below the position of the U.S. Supreme Court. What I want to talk about today is a very simple and yet a very momentous question. Does the Senate have the power to govern itself? Does the Senate have the power to govern itself? Specifically, can a majority of the Senate establish how we are governed? I have heard a lot of careless talk over the last few months and days. Some have charged the Senate will soon break the rules to change the rules and destroy the Senate as we know it. Some Senators claim the Senate is about to abdicate all constitutional responsibility, is becoming a rubberstamp. Others raise the specter of lawlessness and banana republics. Worst of all, Senators speak figuratively of detonating nuclear bombs and shutting down the Senate's business. This kind of hysteria does a tremendous disservice not only to the Senate but to our Nation as a whole. Not only are the claims blatantly false, but they add to the already unacceptable level of incivility in our political affairs. It is often said we should disagree without being disagreeable. That is a sentiment with which I wholeheartedly concur. A good first step would be for my colleagues to stop making outrageous claims that Republicans want to destroy this institution. The reality is the Senate is now engaged in a historic debate and, I believe, a historic effort to protect constitutional prerogatives and the proper checks and balances between the branches of our Government. Republicans seek to right a wrong that has undermined 214 years of tradition--wise, carefully thought out tradition. The fact that the Senate rules theoretically allowed the filibuster of judicial nominations, but were never used to that end, is an important indicator of what is right and why the precedent of allowing up-or-down votes is so well established. It is that precedent that has been attacked and which we seek to restore. Fortunately, the Senate is not powerless to prevent a minority from running roughshod over its traditions. It has the power--indeed, I would say the obligation--to govern itself. As I will demonstrate today, that power to govern itself easily extends to the device that has come to be known as the constitutional option. The Constitution is clear about the scope of the Senate's power to govern itself. Article I, section 5, clause 2 of the Constitution states that each House may determine the rules of its proceedings. The Supreme Court of the United States has rarely interpreted this clause, but one case is important for our purposes, the case of the United States v. Ballin, a case decided in 1892. That case dealt with the power of the majority of the House of Representatives to make rules, and it contains two holdings that bear on our situation today. First, the Supreme Court held that the powers delegated to the House or the Senate through article I, section 5, clause 2 are powers held by a simple majority of the quorum. The Constitution states that a majority of Members constitutes a quorum, and the Supreme Court, therefore, held that ``when a majority are present the house is in a position to do business.'' The Supreme Court continued: All that the Constitution requires is the presence of a majority. Thus, a majority is all the Constitution requires for us to make rules, to set precedents, and to operate on a day-to-day basis. The Supreme Court made this clear. Second, the Supreme Court held that the power to make rules is not one which, once exercised, is exhausted. It is a continuous power, always subject to being exercised by the House. By ``House,'' the court means the House of Representatives or the Senate. The import of this statement is crucial for present purposes. The power of the majority of Senators to define Senate procedures is one that exists at all times, whether at the beginning, the middle, or the end of Congress. The constitutional background is simple and uncomplicated. We can govern ourselves. We can do it by majority vote, and we can do it at any time. Let me repeat: The Supreme Court has held that we have the right to govern ourselves, that we can do it by majority vote, and we can do it any time. Let's look at how the Senate employs its constitutional power to govern itself. There are four basic ways that the Senate does so: In standing rules, precedents, standing orders, and in rulemaking statutes. I will discuss each briefly in turn. First, the Senate has adopted standing rules to govern some but not all Senate practices and procedures. I have seen much confusion in the press and even, sadly, in this body about those standing rules. Some argue that the standing rules are the be-all and end-all of Senate practice and procedure. The confusion might be understandable outside the Senate, but Senators know that these rules are but one aspect of the overall set of tools, the broader rules that the Senate uses to govern itself. That brings us to the second way the Senate exercises its constitutional power: the creation of precedents. Precedents are created whenever the Presiding Officer rules on a point of order, when the Senate sustains and/or rejects an appeal of the Presiding Officer's ruling on a point of order, or when the Senate itself rules on a question that has been submitted to it by the Presiding Officer. As former Parliamentarian and Senate procedural expert Floyd Riddick has said: The precedents of the Senate are just as significant as the rules of the Senate. Let me repeat what Mr. Riddick said: The precedents of the Senate are just as significant as the rules of the Senate. Indeed, as we will see, precedents have sometimes been created that directly contradict the Standing Rules of the Senate. I will return to that point later, but I want everyone to remember what Mr. Riddick said. A third way that the Senate exercises its constitutional power is through standing orders which can be adopted by legislation, Senate resolutions, or run-of-the-mill unanimous consent agreements. It is worth pausing to note that the Senate regularly overrides the standing rules and precedents of the Senate through unanimous consent agreements. You saw that a few minutes ago. Our leaders get together and decide, for example, to change the time to hold a cloture vote, even though rule XXII mandates that the vote shall occur 1 hour after the Senate comes into session on the second day after the cloture petition is filed. Yet the leaders move the votes in direct contradiction of the rules. Of course, a unanimous consent agreement is formalistically unanimous. But that temporary rule change, if you want to call it that, is done completely outside the standing rules. How can we do this? How can the Senate ignore the Standing Rules of the Senate? The answer is simple. It goes to the essence of the situation before us today. As the Supreme Court held, the Constitution gives the Senate the power to make rules and govern itself on a continuous basis. We are not held hostage to the standing rules, nor are we required to go through the cumbersome process of amending the standing rules when it is necessary to get something done. This has always been true. A fourth way that the Senate exercises its constitutional power is through rulemaking statutes. For example, for 30 years the Budget Act has been placing severe restrictions on the rights of Senators to debate. Indeed, the Congressional Research Service has identified 26 rulemaking statutes that somehow limit the ability of individual Senators to debate and/or amend legislation. Think about that for a moment. We hear much pontificating on this floor about the supposedly sacred and untouchable right of Senators to debate on an unlimited basis. Yet, arguably, our most important function, that of ensuring that government services are budgeted and receive funding, is subject to carefully crafted restrictions of that right of debate. We have 50 hours of debate, followed by a majority vote, period. For generations, Senators have judged some limits on debate are necessary just as a matter of common sense. This is one of them. Parenthetically, no matter how many times a few Senators say otherwise, this controversy before us now has nothing whatsoever to do with free speech, as the minority leader himself has acknowledged. This dispute has never been about the length of debate. It is about blocking judicial nominees. We will have plenty of debate on all of the nominees, as much as anyone wants. I would like to move to another important aspect of this discussion: The role of tradition and norms of conduct in the day-to-day functioning of the Senate. This is crucial. Although it is frequently said that the unique features of the Senate are individual Senator's rights to demand and amend, there is another even more central aspect to Senate procedure. As I see it, the overriding feature of the Senate is the mutual self-restraint and respect for the settled norms of this body. I would like to consider a few examples. Senators limit their speech on an informal basis every day. We cut short remarks so that others can speak. We did that a few moments ago. We acquiesce in unanimous consent agreements that will have the effect of denying ourselves any chance to speak on a subject. We decline to object to procedural unanimous consent requests even though we might have good reason to want to slow down Senate business. We acquiesce in our leader's floor schedule. We work with bill managers to limit amendments so that the Senate can function, so that each individual Senator's rights do not become an impediment to the task of governing. Senators have rights, but we also have obligations to each other and to the Nation. So we limit our rights on the basis of mutual respect and a belief in good government but, candidly, also out of fear of retaliation. If I assert my rights too forcefully, I not only disrespect my colleagues, but I threaten my own public policy goals. The result is a complicated mutual truce of sorts that allows us to do the people's business in an orderly way. In a word, we gain institutional stability. In short, the Senate is institutionally stable, not just because of rules, precedents, or the standing order, or the rulemaking statutes I discussed. The body is stable because we respect each other's prerogatives. We understand that any breach of the truce will produce a reaction. And it is that basic understanding of physics, action, and reaction, coupled with a genuine goodwill that allows us to function even with the many individual rights that we possess. The rights only work because we so often choose not to exercise them. So it is not just rights that define the Senate but also restraint. Which brings us back to the filibuster of judicial nominations. It is certainly the case that the Standing Rules of the Senate do countenance the filibuster of judicial nominations, but it is equally the case that the longstanding norms of the Senate do not. Until 2003, no judicial nominee with demonstrable support of a majority of Senators had ever been denied an up-or-down vote on the Senate floor through a filibuster. Even on the rare occasions where there were attempts, they failed on a bipartisan basis. And why? Because the filibuster of judicial nominations used as a minority veto was not part of our tradition and never had been. Again, out of respect for fellow Members, for the President, and for the judiciary, and out of a recognition of the long-term impact of such tactics, the Senate had always declined to march down this path. When I entered the Senate in 1995, I had grave concerns about some of more activist nominees that President Clinton sent to us. But I listened to Chairman Orrin Hatch, Majority Leader Trent Lott, and many others. They taught that we had a longstanding Senate tradition against blocking Senate nominations by filibuster. So I joined Democrats and Republicans alike in making sure there were no filibusters. Ironically, some point to those successful cloture votes for confirmed judges and claim those nominees were filibustered. Well, all that establishes is that both parties ensured a supermajority to end debate, precisely to adhere to historical norms. We took the steps to ensure those judicial nominees who reach the Senate floor received the fair up-or-down votes to which they were entitled. Again, the standing rules might have permitted such obstruction, but the Senate norms and traditions did not. To the extent the rules technically permitted such obstruction, the traditions had rendered the power obsolete and inert. In common law, there is a doctrine called desuetude, which means that obsolete or unenforced laws shall not have effect in the future even if not formally repealed. In other words, a law that is de facto unenforced may be treated as ineffective de jure as well. We faced a similar situation in the Senate. In fact, our tradition was our rule. To minimize the traditions of this body is to display a naive and legalistic misunderstanding of the institution. To say we are a body of traditions is meaningless if we do not acknowledge that our traditions have content and meaning. There can be no question that the filibusters of the last Congress broke that Senate tradition and, therefore, the set way this body had governed itself. By breaking traditions of the Senate, members of the minority should have known they would force the Senate to react. Tradition should never change without consensus, and a consensus requires, at a minimum, a majority. The question is, what are we to do when norms and traditions are changed by the minority? What do we do when there is no consensus, just a minority with a determination to exploit dormant rules to further partisan end? The Senate can do one of two things: Let our traditions be transformed and permit rule by minority or we can insist that the Senate maintain traditional norms and take action to protect them. That brings us to the constitutional option itself. The constitutional option is nothing more than the Senate governing itself, as the Constitution provides, by acts of majorities of Senators. The Senate has been in this situation before 4 times over a 10-year period, when the Senate majority reacted to a minority using rules that had not traditionally been used to obstruct Senate business. My colleague Senator McConnell will discuss each instance in depth. I address one in particular by way of illustration. In 1977, two Senators attempted to block a natural gas deregulation bill after cloture had already been invoked. They were succeeding through a strategy of ``filibuster by amendment.'' Post-cloture debate time had lapsed, but the obstructing Senators could still call up amendments, force quorum calls, and force rollcall votes on the amendments. Rule XXII prohibited dilatory or nongermane amendments, but Senate procedure did not rule these amendments out of order. True, a Senator could raise a point of order against one of these dilatory amendments, but any favorable ruling could be appealed. A rollcall vote could then be demanded on that appeal. And once that rollcall vote began, the obstructing Senators could accomplish their slowdown in a different way--filibuster by rollcall vote. To make matters worse, in 1977, before any point of order could even be made against an amendment, the amendment in question had to be read by the clerk. By objecting to the routine courtesy of waiving the reading of the amendment, the obstructing Senators delayed the business of the Senate even further. That all may seem complicated, but there is one undeniable truth about what these obstructing Senators were doing. It was all completely permitted under the standing rules and the precedents of the Senate. At the same time, however, these tactics were in violation of settled Senate norms and practices. So what was the Senate to do? The answer came when the then-Democratic majority leader made the decision these new tactics were dilatory, in violation of the traditional norms, and could no longer prevail. He asked then-Vice President Walter Mondale to sit in the chair in his capacity as President of the Senate. The Democratic majority leader made a point of order that ``when the Senate is operating under cloture, the chair is required to take the initiative under Rule XXII to rule out of order all amendments that are dilatory or which on their face are out of order.'' Mondale sustained the point of order, even though it had no foundation in the rules or precedents of the Senate. Another Senator appealed the Mondale ruling, and the Democratic majority leader moved to table. The Senate then voted to table the appeal. In doing so, the Senate created a new precedent. But that precedent ran directly contrary to the Senate's longstanding procedures which had required Senators to raise points of order to enforce Senate rules. Under the new precedent established by the Senate, no such point of order would be necessary. Again, this may seem complicated, but these small changes had dramatic effects. The Democratic majority leader began to call up each of the dilatory amendments so the Chair could rule them out of order. One by one, the Chair obliged. Under normal circumstances, an appeal would have been in order, but the majority leader exercised his right of preferential recognition to block any appeal. He quickly called up every remaining amendment, Vice President Mondale ruled them out of order, and all of the amendments were disposed of. Nearly 20 years later, the Senator who orchestrated those events in 1977 explained to the Senate what he had done. He explained: I asked Mr. Mondale, the Vice President, to go please sit in the chair; I wanted to make some points of order and create new precedents that would break these filibusters. And the filibuster was broken--back, neck, legs, and arms. So there should be no confusion about what happened on that day. That was the constitutional option in action. The Senate faced a situation where a minority of Senators was frustrating Senate business in an untraditional way. The majority wished to proceed. The majority did not propose any formal rules change, refer the proposal to the Rules Committee, wait for its action, and then bring it to the floor under rule XXII's cloture provisions for such rule change proposals. That procedure was not followed. Instead, the majority leader recognized that the Senate had the constitutional power to bypass that route, which is exactly what the Senate did. As I mentioned earlier, that same Democratic leader would create several other precedents while serving as majority leader, in each case because he concluded the existing standing rules and precedents of the Senate were inadequate, and that a majority of Senators had the power to alter the way the Senate governs itself. In 1979, for example, a new precedent was created to prevent legislation on appropriations bills, in direct contravention of the text of the standing rules at that time. In 1980, the Senate used the constitutional option to eliminate the ability to debate and filibuster the motion to proceed to a particular item on the Executive Calendar. That situation is remarkably similar to the one we face today. In 1987, in a complicated set of maneuvers, the Senate created new precedents to limit minority rights and declare that certain dilatory tactics during the morning hour were out of order. I will not examine each of these historical events in detail today. Instead, I ask unanimous consent to have printed in the Record a copy of the policy paper prepared by the Republican Policy Committee, which I chair, which examined each of these events in great detail.

Mr. KYL. Mr. President, very briefly, before I address the primary subject of my presentation, I would like to do two things. First, I ask unanimous consent to have printed in the Record, after my remarks, the Washington Times op-ed piece by a former majority leader of the Senate, Bob Dole, dated Thursday, May 19, 2005.