Jon Kyl

Mr. KYL

Mr. KYL. You totally defeat the point, if you have to replace the revenue by taking it out of the economy somewhere else, if you have to replace it in the Federal Treasury. So it makes no sense to put more money back in up here and then be required to take it out down here. But the exact opposite is the case with respect to Government spending because it takes money out of the private economy, if you are going to finance that spending. Taking resources out of the private economy hurts economic growth because these resources could be used more efficiently by private actors than the Government. So if Congress raises marginal tax rates to finance the spending, it will hurt the economy even more by reducing beneficial incentives to work and save and invest. But with respect to spending, pay-go makes every bit of sense in the world. If Congress increases Government spending in one area and then pays for it by reducing Government spending in another area, Congress has not taken resources, net resources from the private economy, alleviating at least some of the negative economic effects of excess Government spending. And by not further adding to the deficit, Congress is acting more responsibly with taxpayer dollars that it does collect. So the bottom line is that pay-go makes absolutely no sense with respect to tax cuts, the whole point of which is to leave more revenue in the private sector. It makes every bit of sense with respect to spending increases because there your whole point is to try to keep spending level. So if you increase it in one area, obviously you need to cut it by a like amount in another area, thus the so-called pay-go. I hope these remarks help to make the point that we have a great and robust economy, and that we can sustain that growth by the sensible policies that are embodied in the budget that has been presented by the Budget Committee. I certainly encourage my colleagues, as this debate unfolds, to appreciate the arguments that we have made today and to support the budget that has been submitted.

Mr. KYL. I ask for 2 additional minutes.

Mr. KYL. Mr. President, I thank the Senator from New Hampshire. Let me begin by congratulating the Senator from New Hampshire, chairman of the Budget Committee, for the hard work he has put in, along with members of his committee, in crafting and getting a budget to the floor of the Senate and explaining in very clear and convincing terms not only the state of the economy right now but the basis for the budget that has been submitted. I compliment him for his hard work in that regard. I am going to talk for a moment about the economic growth we have enjoyed in this country in the last couple of years and why I think that economic growth has occurred and, to some extent, discuss some of the ideas that have been propounded about increasing the tax rates that we had earlier reduced in the 2001 and 2003 tax cuts of President Bush, which sunset, and they will be increased unless we extend those tax cuts. In the budget that the chairman of the Budget Committee has presented, there is assumed an amount of money for tax reduction that is reconciled, and among that would be a couple of years' worth of extension of the tax cuts that we passed with respect to capital gains rates and the rate for taxing dividends. In both cases, we reduced the amount of the tax to 15 percent. Both of those expire in the year 2008. In addition, there are some other tax cuts that expire before then, and part of this budget assumes that those tax cuts will be extended through the life of this budget, which is 5 years or, in other words, through the end of the year 2010. The effect of that is to conform those tax rate cuts with the other tax rate cuts on marginal income taxes, for example, as well as the others that we extended last year so that they would all expire at the same time. We already have at that same time the estate tax being eliminated in the year 2010. So at least we would be sending a couple strong signals as a result of adopting this part of the budget that, No. 1, we believe in these tax cuts, and, No. 2, that we have no intention of letting them expire. The reason for that is we all want to have in place Government policies that promote economic growth. We all know that the economy is neither created nor sustained by the Government. Sometimes the best we can do is get the Government out of the way and let the entrepreneurial spirit of the American people provide the kind of growth we have come to enjoy. We know a growing economy increases not only opportunities for Americans, provides better jobs, and improves our standard of living, but it also does something else. From a Government standpoint, it helps to bring in more revenue to the Treasury because the more robust the economy, the higher the taxes paid into the U.S. Government Treasury. So there are a lot of different reasons to have a robust economy, not the least of which is to bring in more revenue to the Treasury. We have created almost 3 million jobs since May of 2003, not even quite 2 years ago, at the time these tax cuts of 2003 were enacted. The GDP growth for 2004 was 4.4 percent, and real aftertax income was up by over 11 percent since the end of 2000. Household wealth is at an all-time high. I just saw the statistics for my own State of Arizona. Unemployment is 4.1 percent, and for my hometown of Phoenix, it has to be a whole lot less than that. The bottom line is that all over this country, we are enjoying great economic growth which has created opportunities for everyone. As I said, this comes from private economic activity, not the Government. It is the people of our country who undertake this activity. They either perform a service or they make something, and sometimes they lend and invest money as well, which helps the economy, because they hope to make money with their individual efforts. We know if tax rates get too high, then people lose some of the incentive to work because the aftertax reward is worthless. In other words, when the tax rate says if you work any more than this, the Government is going to take an increasingly large percent of your money, you do not work more than that. And when people work less, productivity falls. That hurts economic growth and, ironically, it decreases tax revenues to the Federal Treasury. If governments raise taxes in an attempt to make up this shortfall, the downward spiral is perpetuated because as you take more money out of the private sector, it has less money to generate the capital, the job creation, and the growth that we have come to expect, and, therefore, the economy does not do as well. If it does not do as well, you end up with less tax revenue coming to the Treasury. So raising taxes may sound like a good idea in the short run, but in the long run it not only hurts revenues to the Treasury, it hurts the economy as a whole. The best thing the Government can do is to support private economic activity by minimizing Government constraints on productivity. According to economists, keeping tax rates low on work, savings, and investment is what generates sustained economic growth. I have had the opportunity to meet a very interesting Arizonian. He is the 2004 winner of the Nobel Prize in economics, Dr. Edward Prescott. He is from Arizona State University. He has studied the effect of high tax rates on a person's willingness to work and found, not surprisingly I think, that people do work less as tax rates on labor increase. It is a classic study of how high marginal tax rates; that is the tax rate imposed on a person's next dollar earned, cause people to actually work less. When people work less, they are less productive. Less productivity translates into less tax revenues for the Government. If we stop and think about this for a moment, if one wanted to increase taxes and bring in a lot of revenue, why they would set a tax rate of 100 percent. And what would happen if we had a tax rate of 100 percent on our income? Well, why work? All of it is going to be taken by the Government. The same thing is true if it is at 95 or 90 or 85 or 80. Some of the European countries, in particular the Scandinavian countries, found this to be true. If taxes are raised too high, people simply will not work because they are giving all of their money to the government. It simply is not the case that more money is brought in by raising tax rates. This Nobel Prize winner found the exact opposite is true. Similarly, savings and investment generate economic growth by giving businesses access to capital that they need to grow and invest in innovation and to create more good-paying jobs. The reduced tax rate on dividends and capital gains that I mentioned before encourages private individuals to let business use their money to help expand the economic pie. There is an interesting argument that it is consumer spending that drives economic growth, but the truth is that consumer spending alone, or even primarily, does not generate sustained economic growth because consumers buy what has already been made, while economic growth requires a provision of increasing amounts of goods and services. Moreover, our society hardly has a problem with too little consumer spending. In fact, during the last recession consumer spending stayed very strong at the same time that investment had fallen off very sharply. When investment was encouraged by reducing the tax rates on dividends and capital gains, investment rebounded and so did the economy and job creation. The economic downturn from which our economy has strongly rebounded now is responsible for about half of our Federal budget deficit. Most of the remainder is a result of the spending proclivities of the Congress. When taxpayers--and that includes both businesses and individuals-- earn less money as a result of a recession, they owe less money in taxes. So we can see the effect of the recession on Federal revenues. They went down. The economy lost more than 900,000 jobs from December 2000 to September 2001 and then lost almost another 900,000 jobs as a result of the September 11 terrorist attacks. So these attacks, combined with the collapse of investment following the tech bubble of the late 1990s, as well as the high profile corporate corruption scandals that ensued, triggered a recession and resulted in a precipitous drop in tax revenues which are now beginning to return to normal levels. At the current level of taxation, the average level of revenue to the Treasury will be achieved by the year 2010, which is the year through which this current budget goes. There is no reason then to modify the tax rates by causing them to go up in order to bring in more revenue. By extending the 2001 and 2003 tax rate cuts through the year 2010, we will be producing the average amount of revenue that has existed ever since the end of World War II. So the suggestion that Congress repeal the 2001 and 2003 tax cuts in order to alleviate the deficit would be the economic equivalent of cutting off one's nose to spite one's face. The economic activity encouraged by the tax cuts has pulled our economy out of the recession, and we should not get rid of these successful tax cuts to address an issue, namely the deficit, that is already being addressed very effectively by the budget submitted by the Budget Committee, which will reduce the deficit to 1.3 percent of GDP by 2010. The final point I address is why we should not use what is called pay-go for policies that would end up hurting our economic growth by applying this so-called pay-go rule to the tax reductions called for in the budget. To understand why it makes no sense to pay for tax reductions in the same way that it makes sense to pay for spending increases, one has to look at how each affects the economy differently. Pay-go, or the requirement that one offset a theoretical loss of revenue on one hand with an increase in revenue on another to net out so that there is the same amount of money, pay-go for taxes is based on two false presumptions: first, that the money belongs to the Government and, second, that it must always be replaced and never reduced. When we stop and think about it, that is a fairly ridiculous notion, that there is only one level of income to the Government that is appropriate forever and ever. The correct presumptions are that the money belongs to the people who earn it in the first place in the private sector; and secondly, that taxes must be justified by their cost to the economy, which must be growing in order to produce revenues. So it is not the cost to the Government revenues in the first instance that is important. It is the cost to the economy which is what produces those revenues that is important. When Congress cuts taxes, it leaves the money in the private economy where it can be used most efficiently. It does not cost the Government anything to leave the money in the economy. In fact, as I discussed earlier, when Congress cuts tax rates, it restores some of the incentives for increased work and savings and investment in the economy. So tax cuts such as these not only expand the economic pie for everyone, but they can also bring additional revenue into the Treasury. There are two recent examples that demonstrate this effect. Historical analysis of revenues to the Treasury from capital gains demonstrates that revenues to the Treasury increased when the tax rates are cut. There are three reasons that a reduction in the capital gains tax rate tends to increase tax revenues. First, the unlocking effect, which expands the tax base, because realizations increase in response to the lower tax rate. An investor might have been reluctant to sell stock or land or whatever it might be that had appreciated significantly in value because of the tax that would have to be paid at that time. When the tax rate is cut, the investors are then able to decide, hey, the tax rate is cut. I will not have to pay as much in taxes. I will go ahead and sell this stock or this piece of land and realize my gain and have to pay less on it. So it is the unlocking effect. Secondly, more efficient decisions by investors. When tax rates are low and constant, fewer investors will avoid selling stocks purely for tax reasons, making their investment decisions much more efficient and sensible. This is related to the unlocking effect but also has to do with investors paying less attention to tax considerations in the first place, which is how we would like to have the Tax Code operate. Finally, an increase in the value of existing assets. When capital gains taxes are lowered, the value of existing assets necessarily increases. Tax revenue rises as owners of stock pay taxes on the higher value of their assets when realized. So for all three reasons, one can actually see there is an increase in revenue to the Treasury as a result of reducing the rate at which capital gains are taxed. The recent progrowth tax cuts have actually increased revenues to the Treasury. This is because, as the economy grows, people in businesses have more income on which to pay more taxes, even if they are paying lower rates. How do we know this is true? In the second half of 2004, individual income tax revenue was up 10.5 percent compared to the same period in 2003. So the evidence is there. Now, why should pay-go not apply to tax cuts but apply to Government spending? As I said, if Congress raises taxes to offset tax cuts, it basically cancels out the benefit of economic effects by not leaving on net any additional money in the private economy where it can be used to expand the economic pie. So if the whole point is to allow more money to stay in the private sector, the point is totally defeated.

Mr. KYL

Mr. KYL. Mr. President, today I am pleased to join with Senator McCain in introducing the Arizona Trail Feasibility Study Act. This bill would authorize the Secretaries of Agriculture and the Interior to conduct a joint study to determine the feasibility and desirability of designating the Arizona Trail as a National Scenic or Historic Trail. A companion bill is being introduced today in the House of Representatives by Representative Kolbe on behalf of the entire Arizona delegation. In 1968, Congress established the National Trails System to promote the preservation of historical resources and outdoor areas. National scenic and national historic trails may be designated only by an act of Congress. The first step toward national trail designation is the feasibility study process, which this legislation authorizes. When a study recommends a trail for designation, subsequent legislation will be introduced to bring it into the National Trails System. The Arizona Trail is highly deserving of consideration for national designation. The trail is a roller coaster ride through the wide range of ecological diversity in the State. The Trail corridor begins at the Coronado National Memorial on the U.S. Mexico Border, and winds some 800 miles, ending on the Bureau of Land Management's Arizona Strip District on the Utah Border. As it connects these two points, it invites recreationists to explore the State's most renowned mountains, canyons, deserts and forests, including the Grand Canyon and the Sonora Desert. This trail is unique in that it was developed to maximize the incorporation of already existing public trails into one continuous trail, to showcase some of the most spectacular scenery in the West. The trail is a partnership of over 16 Federal, State and local agencies, as well as numerous community and business organizations and countless volunteers, to develop and sustain it as a recreational resource for future generations. Authorizing this study and ultimately designating the Arizona Trail as a national trail will help streamline its management, boost tourism and recreation, and preserve a magnificent natural, cultural, and historical experience of the American West.

Mr. KYL

Mr. KYL. Mr. President, today I am pleased to join with Senator McCain in introducing the Arizona Trail Feasibility Study Act. This bill would authorize the Secretaries of Agriculture and the Interior to conduct a joint study to determine the feasibility and desirability of designating the Arizona Trail as a National Scenic or Historic Trail. A companion bill is being introduced today in the House of Representatives by Representative Kolbe on behalf of the entire Arizona delegation. In 1968, Congress established the National Trails System to promote the preservation of historical resources and outdoor areas. National scenic and national historic trails may be designated only by an act of Congress. The first step toward national trail designation is the feasibility study process, which this legislation authorizes. When a study recommends a trail for designation, subsequent legislation will be introduced to bring it into the National Trails System. The Arizona Trail is highly deserving of consideration for national designation. The trail is a roller coaster ride through the wide range of ecological diversity in the State. The Trail corridor begins at the Coronado National Memorial on the U.S. Mexico Border, and winds some 800 miles, ending on the Bureau of Land Management's Arizona Strip District on the Utah Border. As it connects these two points, it invites recreationists to explore the State's most renowned mountains, canyons, deserts and forests, including the Grand Canyon and the Sonora Desert. This trail is unique in that it was developed to maximize the incorporation of already existing public trails into one continuous trail, to showcase some of the most spectacular scenery in the West. The trail is a partnership of over 16 Federal, State and local agencies, as well as numerous community and business organizations and countless volunteers, to develop and sustain it as a recreational resource for future generations. Authorizing this study and ultimately designating the Arizona Trail as a national trail will help streamline its management, boost tourism and recreation, and preserve a magnificent natural, cultural, and historical experience of the American West.

Mr. KYL

Mr. KYL. Mr. President, I join Senators Alexander and Pryor in introducing the Federal Consent Decree Fairness Act. This important legislation, by placing reasonable limits on the duration of judicial consent decrees, will help restore democratic control over State and local institutions. Lawsuits against public schools, welfare agencies, and other State and local government agencies and programs often end in judicial consent decrees. Consent decrees are binding, legal agreements between plaintiffs and institutions specifying how a particular problem will be remedied. Two years ago, two professors at the New York Law School, Ross Sandler and David Schoenbrod, published an important book about the effect of consent decrees on our society: Democracy by Decree: What Happens When Courts Run Government.'' The professors' book describes how unelected and unaccountable judges and attorneys control many State and local institutions by imposing rigid plans through consent decrees and how these decrees prevent newly elected officials from altering policies in response to the changing wishes of voters. These decrees allow plaintiffs' lawyers and judges to assume the power to make policy and dictate in detail what shall constitute compliance with the decree. They reflect a multitude of motives and often are based on considerations of the moment, yet they can bind public institutions for decades. While plaintiffs must allege violations of rights when filing their cases, the consent decrees that are produced by the litigation often have little connection with the enforcement of those rights. Instead, the decrees in some cases simply reflect the policy preferences of the controlling group behind the litigation, including the plaintiffs' attorneys and special interest groups. One example from ``Democracy by Decree'' illustrates the nature of this phenomenon. When Congress enacted the Education for All Handicapped Children Act, it created a Federal right to special education. This new right required that all handicapped children receive ``free appropriate public education.'' After the law's enactment, local school boards had difficulty complying with the new Federal standards. As a result, parents and children's advocates brought many lawsuits in Federal courts, including a New York case that was titled Jose P. v. Ambach. The Jose P. case ended with a consent decree that dramatically shifted control over public education in New York. It transferred power over special education from the board of education and elected officials to the Federal court. Judge Nickerson, the U.S. District Court Judge assigned to Jose P., selected a ``special master'' and extended to him the enormous power to decide what was ``appropriate to provide the requisite public education to handicapped children in New York City.'' In an affidavit to Judge Nickerson, New York City School Chancellor Macchiarola described how the litigation forced attention to a vast succession of special education and administrative issues, and diverted teachers' attention from the education of children. The special master's orders elevated speed of child placement above all other educational priorities. The mass processing of children with disabilities forced by the order, in turn, directly conflicted with efforts to educate these children. Chancellor Macchiarola wrote: I believe that however closely the judgment may have approximated the best professional judgment at a particular time, it is a mistake to elevate any set of practices and procedures to the level of an inflexible mandate. Such an approach robs the school system of the flexibility it needs to adapt to changing circumstances, increasing practical experience with alternative approaches to implementation, and a constantly growing understanding of the nature and dimensions of the educational issues we face. In April 1984, New York City Mayor Ed Koch created the Beattie Commission to review the city's special education programs. Five years after Judge Nickerson issued the Jose P. consent decree, the city's programs had grown to serve 116,000 children at a cost of $850 million, yet it still did not meet the mandates of Jose P. The Beattie Commission found that special education had been transformed into a program for handling any child who for one reason or another performed at less than expected levels or who caused trouble in the classroom. Eighty-nine percent of all referrals for evaluations were either for poor academic performance, bad behavior, or both. The program had begun to function as a quickly expanding and increasingly expensive general education program. The New York City Board of Education officials who worked under the decree conceded that Jose P. caused a restructuring of special education, but they emphasized that the scope of the judgment and the detailed procedures that it required shifted attention from what was truly best for the children to a focus on numerical compliance with rigid timelines. In ``Democracy by Decree,'' Sandler and Schoenbrod explain: The most notable fact after more than twenty years of court supervision is the size of the special education program. For the 1999-2000 school year, out of a school system of 1.1 million children, 168,000 received special education--three times the number when Jose P. was filed. Public school costs for these services reached $2.7 billion, 25% of the entire school budget. The board spends in excess of $26,000 per student in special education, nearly three times more than the resources devoted to students in regular education. Jose P. failed to produce sound special education because it was premised on a basic misunderstanding of institutional change. The court set about to reform a single program in a vast educational structure--a fool's errand because special education could not be reformed without reforming the entire system. What was needed was to overhaul the system, only part of which was special education. The New York City board of education could not stop the gaming of special education unless it also stopped gaming in other areas such as seniority, union perks, principal rights, custodial authority, and inadequate programs of all kinds, from athletics to grammar. What the court order did was cause the board to focus effort on one area of institutional performance without altering the culture of which it was a part. That, and the very rigidity of the Jose P. decree and the process it required, made it more difficult for new mayors, new chancellors, or new boards of education to improve the entire system. In their handling of cases such as Jose P., the courts have moved away from enforcing rights and toward a managerial process of overseeing the pursuit of general goals. The Jose P. order and its process could conceivably continue without end. The court never described what the board must do to terminate supervision. Sandler and Schoenbrod plead that our conclusion should not be to fix blame on the individuals in charge of the case. They are superbly trained, well intentioned, and widely recognized as outstandingly successful judges and lawyers. Nor should that attention be fixed on questioning the worthy objective of special education. Rather, the failure of such competent people in pursuit of such a needed objective should compel attention on whether we should continue to rely so readily on courts to manage the complex institutions of state and local governments. Senator Alexander's bill is an important step in addressing the structural failures behind cases like Jose P. I look forward to the bill's consideration in the Senate.

Mr. KYL

Mr. KYL. Mr. President, I am pleased to join today with Senator McCain to introduce the Yuma Crossing National Heritage Area Boundary Adjustment Act. This legislation would amend the Yuma Crossing National Heritage Act of 2000, Public Law 106-319, to reduce the size of the heritage area to conform to the area set forth in the Heritage Area Management Plan approved by the Secretary of the Interior in 2002. The Yuma Crossing Heritage Area was designated in October 2000. It sprung from a preliminary concept plan completed in 1999 by the Heritage Area Task Force. The boundaries proposed in that plan included approximately 22 square miles, extending from the Colorado River on the north and west to the Avenue 7E alignment on the east and the 12th street alignment on the south. These boundaries represented the task force's ``best guess'' as to the cultural landscape warranting inclusion in the heritage area. This ``best guess'' was incorporated into the legislation designating the Yuma Crossing National Heritage Area. During the development of the final Heritage Area Management Plan, which was subject to comprehensive community involvement, it became apparent that the area's boundaries were too large and should be more concentrated along the Colorado River and in historic downtown. Rather than simply leave the boundaries as they were set in the 2000 legislation, we have heard from the community in Yuma that it is important that we conform the boundaries to those in the agreed-upon Management Plan. Doing so will provide certainty to the heritage area and those private landowners who live within its current boundaries. It will allow the heritage area to meet its management goals and responsibilities without the worry that private property rights may be affected in the future. This is a non-controversial, straightforward correction. I hope my colleagues will work with me to pass it quickly this year.

Mr. KYL

Mr. KYL. Mr. President, I am pleased to join today with Senator McCain to introduce the Yuma Crossing National Heritage Area Boundary Adjustment Act. This legislation would amend the Yuma Crossing National Heritage Act of 2000, Public Law 106-319, to reduce the size of the heritage area to conform to the area set forth in the Heritage Area Management Plan approved by the Secretary of the Interior in 2002. The Yuma Crossing Heritage Area was designated in October 2000. It sprung from a preliminary concept plan completed in 1999 by the Heritage Area Task Force. The boundaries proposed in that plan included approximately 22 square miles, extending from the Colorado River on the north and west to the Avenue 7E alignment on the east and the 12th street alignment on the south. These boundaries represented the task force's ``best guess'' as to the cultural landscape warranting inclusion in the heritage area. This ``best guess'' was incorporated into the legislation designating the Yuma Crossing National Heritage Area. During the development of the final Heritage Area Management Plan, which was subject to comprehensive community involvement, it became apparent that the area's boundaries were too large and should be more concentrated along the Colorado River and in historic downtown. Rather than simply leave the boundaries as they were set in the 2000 legislation, we have heard from the community in Yuma that it is important that we conform the boundaries to those in the agreed-upon Management Plan. Doing so will provide certainty to the heritage area and those private landowners who live within its current boundaries. It will allow the heritage area to meet its management goals and responsibilities without the worry that private property rights may be affected in the future. This is a non-controversial, straightforward correction. I hope my colleagues will work with me to pass it quickly this year.

Mr. KYL

Mr. KYL. Mr. President, I thank the Senator from California for deferring because I do have only a moment. I join her in speaking in favor of this amendment and laying it before our colleagues. The point of the bankruptcy reforms is to try to help people get into a position to pay their obligations freely contracted and to try to make sure that creditors get as much of what they are owed as possible. Part of that is to try to help people not get into situations where they are not going to be able to pay their debts, and that is the basic philosophy of this amendment. One can go too far and put conditions on companies such as credit card companies, for example, that are so onerous that they cannot possibly comply. People want to have ease of dealing with credit cards, but one can also get into a lot of trouble with credit card debt, as everybody acknowledges. It can get away from a person if they are not careful. What this amendment does is to borrow from a California statute that was declared invalid in California by a Federal court only because it was preempted by the Federal law, the Truth In Lending Law, which we are hereby amending, so that that same provision would apply again in California and to the other States as well. It requires the companies that offer these cards, when they find someone is paying the minimum amount on a monthly basis, to let them know what will happen or what can happen if they continue to do that, which is essentially that a person is going to end up paying a lot of interest and they are going to end up with a huge debt at a certain point in time that they are not aware of. They need to be aware of it. So we are going to tell the person either hypothetically, if it is not possible to do it on an individual basis, or individually, what the consequences of their paying this minimum amount are, a way to try to help people understand what they are doing and thereby better arrange their affairs so they can pay their debts, and therefore the creditors get paid. That is a win/win for everybody. We have tried to strike the right balance. I think the legislation that was offered by Senator Akaka was simply seen as unworkable and that is why I opposed it. The concept is not bad; it is that the execution of it would not be possible. We think this strikes a better balance. If our colleagues can demonstrate that somehow or other this is impossible to do, we invite them to demonstrate that. We think it strikes the right balance and yet achieves both of the objectives of helping people keep their affairs straight and making sure all of the creditors get paid. We will have more to say, but I do only have a moment. I thank Senator Feinstein for her leadership on this issue, for bringing it to my attention and for helping to pursue it today.

Mr. KYL

Mr. KYL. Mr. President, today I am pleased to introduce the Death Tax Repeal Permanency Act of 2005 along with Senator Bill Nelson. This bipartisan legislation will make the death tax a thing of the past. As we all know, Congress, working with President Bush, enacted bipartisan legislation in 2001 to phase out and eventually repeal the death tax in 2010. Unfortunately, because we did not have the 60 votes we needed to avoid a filibuster by opponents of the cuts, we could not make the repeal permanent. Rather, under Senate rules, the cuts could only be extended for the term of the budget: 10 years. As a consequence, the death tax springs back to life in 2011, at its old rate of up to 60 percent and at its old exemption level of only $1 million. Senator Nelson and I understand that this tax structure is simply unworkable for families and family businesses. We agree that the best solution is to simply get rid of the death tax once and for all. That's why we are introducing legislation today to make death tax repeal permanent. Senator Nelson and I are joined in this effort by Senators Allard, Allen, Burns, Inhofe, Talent, and Thune, and we have the full support of President Bush, who once again included permanent repeal of the death tax in his Fiscal Year 2006 budget proposal. The death tax is an unfair, inefficient, economically unsound and, frankly, an immoral tax that should be removed from the tax code. A recent survey found that 58 percent of Americans believe the death tax is ``completely unfair.'' In contrast, only 10 percent of those surveyed said the same about sales taxes. Moreover, this view is shared by Americans across income levels and political parties: 61 percent of Americans making less than $30,000 a year believe the death tax is ``completely unfair''; 89 percent of respondents who supported President Bush in the last election and 71 percent of respondents who supported his opponent in the last election label the death tax somewhat or very ``unfair.'' And the death tax is unfair, first of all, to the decedent and to his or her heirs. We are talking about people who work hard throughout their lives, perhaps start businesses, or perhaps buy homes in fast- growing metropolitan areas where real estate values are skyrocketing. Or it could be such a person owns a farm or just works hard in a company owned by others, but that person saves and invests and eventually accumulates a small but respectable nest egg. As you can see, the tax reaches far more than the ``ultra-rich,'' its intended targets when it was first imposed. The American dream is to be able to leave these assets to one's children so that they might enjoy a better life than their parents. It is simply unfair and immoral for the government to take more than half of these assets at death. Americans understand that the death tax is unfair because it falls on families when they have the least ability to make significant economic decisions: at the time they lose a loved one. Further, it is unfair because expensive tax planning can significantly ease the effect of the death tax. If you have the money to hire the right lawyer, buy the large insurance policies that are needed, and do the proper planning, your family can be spared much of the financial pain caused by the death tax. If, on the other hand, you die without warning or if you have an unexpectedly large estate due to increased property values and prudent investments, you are caught paying a larger tax. Taxes required as a result of intentional, planned economic decisions are one thing; taxes on an untimely death are quite another. Not only is the death tax unfair; it hurts economic growth. The death tax creates a disincentive to build a family farm, ranch, or other business with the goal of passing it on to one's children. In some cases, it makes more sense for a family business to be sold when the owner retires, since the taxes, primarily capital gains taxes, are going to be much lower if the assets are sold while the owner is still alive. Further, planning for the death tax makes it harder to expand a family business because needed resources are spent on attorneys and life insurance instead of growing the business. As much is spent each year on such ``avoidance planning'' as is collected in death taxes by the government. The death tax also hurts economic growth by discouraging savings and investment. Whether it falls on a family business built through hard work or on a family with a home and a lifetime of investments in 401(k) and IRAs thanks to prudent living, it claims nearly half of an estate over the unified credit amount ($1.5 million in 2005) for the federal government. Such confiscatory tax rates give people little incentive to save and invest. What's more, the American people understand that the death tax represents multiple levels of taxation. Fully 80 percent of those in a recent survey said that the tax represents an ``extreme'' form of ``triple taxation.'' The death tax has a broader economic reach than to just those immediately hit with the tax. Suppose a small business employs 25, maybe 30 people, all of whom rely on the business for their livelihood, health insurance, and retirement savings. The entrepreneur's heirs may not have enough cash to pay the applicable death tax, so they may be forced to liquidate the business. Depending on who buys the assets and what is done with them, the employees may now have to find other jobs. Moreover, all of the companies that sold items to or bought items from this business might need to find other suppliers or customers, leaving a hole in the economy. According to the IRS ``Statistics of Income,'' estate and gift taxes only brought in about $22.8 billion in fiscal year 2003 barely more than one percent of all gross tax collections by the Treasury Department. For such a small amount of revenue, the death tax inflicts a disproportionately large amount of damage on the economy. One of the most interesting statements about the death tax was made by Edward J. McCaffrey, a law professor from the University of Southern California and self-described liberal, in testimony before Congress several years back. He said, ``Polls and practices show that we like sin taxes, such as on alcohol and cigarettes. . . . The estate tax is an anti-sin, or a virtue, tax. It is a tax on work and savings without consumption, on thrift, on long term savings.'' I urge Congress to act this year to end this tax on virtue, work, savings, job creation and the American dream, and to end it permanently.

Mr. KYL

Mr. KYL. Mr. President, today I am introducing legislation to make the 15-year depreciation recovery period for improvements to restaurants permanent, and to extend this treatment to cover new restaurant construction as well. Last year, in the American Jobs Creation Act of 2004 (Public Law 108-357), Congress set the depreciation recovery period for renovations and improvements made to existing restaurant buildings at 15 years, but this treatment only applies to property placed in service before the end of 2005. The legislation I am introducing today will permanently set the depreciation recovery period for new restaurant construction and for improvements to existing restaurants at 15 years. It simply makes no sense that the current law providing a 15-year life for improvements to restaurant properties expires at the end of 2005. Restaurants are businesses, and they need the certainty to plan investments several years in advance. Further, Congress should expand the treatment to apply to new construction, as well as to improvements. Restaurants are high-volume businesses. Every day, more than half of all Americans eat out. Restaurants get more customer traffic and maintain longer hours than the average commercial business--many staying open 7 days a week. This tremendous amount of activity causes rapid deterioration in a restaurant building's systems, from its entrances and lobbies to its flooring, restrooms, and interior walls. Restaurants improve and renovate constantly to accommodate the wear and tear of heavy customer traffic and to keep pace with changing consumer preferences. Clearly, a 39-year depreciation recovery period-- which is what the recovery period will revert to after 2005--does not match the economic life for new restaurant buildings or for improvements to existing structures. Moreover, permanently setting the depreciation recovery period at 15 years will encourage significant economic activity. According to the National Restaurant Association, a 15-year depreciation recovery period for new restaurant construction and improvements to existing properties would generate an additional $3.7 billion in cash flow for the restaurant industry over the next 10 years. If restaurants use just 25 percent of this influx of cash to expand and undertake additional renovations, the Restaurant Association study predicts that the 10-year economic impact would be $853 million. I hope all of my colleagues will join me in this effort to bring certainty and a rational depreciation recovery period to the restaurant industry so that restaurant owners can continue to expand their businesses and provide good jobs to American workers.

Mr. KYL

Mr. KYL. Mr. President, today I am pleased to introduce the Death Tax Repeal Permanency Act of 2005 along with Senator Bill Nelson. This bipartisan legislation will make the death tax a thing of the past. As we all know, Congress, working with President Bush, enacted bipartisan legislation in 2001 to phase out and eventually repeal the death tax in 2010. Unfortunately, because we did not have the 60 votes we needed to avoid a filibuster by opponents of the cuts, we could not make the repeal permanent. Rather, under Senate rules, the cuts could only be extended for the term of the budget: 10 years. As a consequence, the death tax springs back to life in 2011, at its old rate of up to 60 percent and at its old exemption level of only $1 million. Senator Nelson and I understand that this tax structure is simply unworkable for families and family businesses. We agree that the best solution is to simply get rid of the death tax once and for all. That's why we are introducing legislation today to make death tax repeal permanent. Senator Nelson and I are joined in this effort by Senators Allard, Allen, Burns, Inhofe, Talent, and Thune, and we have the full support of President Bush, who once again included permanent repeal of the death tax in his Fiscal Year 2006 budget proposal. The death tax is an unfair, inefficient, economically unsound and, frankly, an immoral tax that should be removed from the tax code. A recent survey found that 58 percent of Americans believe the death tax is ``completely unfair.'' In contrast, only 10 percent of those surveyed said the same about sales taxes. Moreover, this view is shared by Americans across income levels and political parties: 61 percent of Americans making less than $30,000 a year believe the death tax is ``completely unfair''; 89 percent of respondents who supported President Bush in the last election and 71 percent of respondents who supported his opponent in the last election label the death tax somewhat or very ``unfair.'' And the death tax is unfair, first of all, to the decedent and to his or her heirs. We are talking about people who work hard throughout their lives, perhaps start businesses, or perhaps buy homes in fast- growing metropolitan areas where real estate values are skyrocketing. Or it could be such a person owns a farm or just works hard in a company owned by others, but that person saves and invests and eventually accumulates a small but respectable nest egg. As you can see, the tax reaches far more than the ``ultra-rich,'' its intended targets when it was first imposed. The American dream is to be able to leave these assets to one's children so that they might enjoy a better life than their parents. It is simply unfair and immoral for the government to take more than half of these assets at death. Americans understand that the death tax is unfair because it falls on families when they have the least ability to make significant economic decisions: at the time they lose a loved one. Further, it is unfair because expensive tax planning can significantly ease the effect of the death tax. If you have the money to hire the right lawyer, buy the large insurance policies that are needed, and do the proper planning, your family can be spared much of the financial pain caused by the death tax. If, on the other hand, you die without warning or if you have an unexpectedly large estate due to increased property values and prudent investments, you are caught paying a larger tax. Taxes required as a result of intentional, planned economic decisions are one thing; taxes on an untimely death are quite another. Not only is the death tax unfair; it hurts economic growth. The death tax creates a disincentive to build a family farm, ranch, or other business with the goal of passing it on to one's children. In some cases, it makes more sense for a family business to be sold when the owner retires, since the taxes, primarily capital gains taxes, are going to be much lower if the assets are sold while the owner is still alive. Further, planning for the death tax makes it harder to expand a family business because needed resources are spent on attorneys and life insurance instead of growing the business. As much is spent each year on such ``avoidance planning'' as is collected in death taxes by the government. The death tax also hurts economic growth by discouraging savings and investment. Whether it falls on a family business built through hard work or on a family with a home and a lifetime of investments in 401(k) and IRAs thanks to prudent living, it claims nearly half of an estate over the unified credit amount ($1.5 million in 2005) for the federal government. Such confiscatory tax rates give people little incentive to save and invest. What's more, the American people understand that the death tax represents multiple levels of taxation. Fully 80 percent of those in a recent survey said that the tax represents an ``extreme'' form of ``triple taxation.'' The death tax has a broader economic reach than to just those immediately hit with the tax. Suppose a small business employs 25, maybe 30 people, all of whom rely on the business for their livelihood, health insurance, and retirement savings. The entrepreneur's heirs may not have enough cash to pay the applicable death tax, so they may be forced to liquidate the business. Depending on who buys the assets and what is done with them, the employees may now have to find other jobs. Moreover, all of the companies that sold items to or bought items from this business might need to find other suppliers or customers, leaving a hole in the economy. According to the IRS ``Statistics of Income,'' estate and gift taxes only brought in about $22.8 billion in fiscal year 2003 barely more than one percent of all gross tax collections by the Treasury Department. For such a small amount of revenue, the death tax inflicts a disproportionately large amount of damage on the economy. One of the most interesting statements about the death tax was made by Edward J. McCaffrey, a law professor from the University of Southern California and self-described liberal, in testimony before Congress several years back. He said, ``Polls and practices show that we like sin taxes, such as on alcohol and cigarettes. . . . The estate tax is an anti-sin, or a virtue, tax. It is a tax on work and savings without consumption, on thrift, on long term savings.'' I urge Congress to act this year to end this tax on virtue, work, savings, job creation and the American dream, and to end it permanently.

Mr. KYL. Mr. President, today I am introducing legislation to make the 15-year depreciation recovery period for improvements to restaurants permanent, and to extend this treatment to cover new restaurant construction as well. Last year, in the American Jobs Creation Act of 2004 (Public Law 108-357), Congress set the depreciation recovery period for renovations and improvements made to existing restaurant buildings at 15 years, but this treatment only applies to property placed in service before the end of 2005. The legislation I am introducing today will permanently set the depreciation recovery period for new restaurant construction and for improvements to existing restaurants at 15 years. It simply makes no sense that the current law providing a 15-year life for improvements to restaurant properties expires at the end of 2005. Restaurants are businesses, and they need the certainty to plan investments several years in advance. Further, Congress should expand the treatment to apply to new construction, as well as to improvements. Restaurants are high-volume businesses. Every day, more than half of all Americans eat out. Restaurants get more customer traffic and maintain longer hours than the average commercial business--many staying open 7 days a week. This tremendous amount of activity causes rapid deterioration in a restaurant building's systems, from its entrances and lobbies to its flooring, restrooms, and interior walls. Restaurants improve and renovate constantly to accommodate the wear and tear of heavy customer traffic and to keep pace with changing consumer preferences. Clearly, a 39-year depreciation recovery period-- which is what the recovery period will revert to after 2005--does not match the economic life for new restaurant buildings or for improvements to existing structures. Moreover, permanently setting the depreciation recovery period at 15 years will encourage significant economic activity. According to the National Restaurant Association, a 15-year depreciation recovery period for new restaurant construction and improvements to existing properties would generate an additional $3.7 billion in cash flow for the restaurant industry over the next 10 years. If restaurants use just 25 percent of this influx of cash to expand and undertake additional renovations, the Restaurant Association study predicts that the 10-year economic impact would be $853 million. I hope all of my colleagues will join me in this effort to bring certainty and a rational depreciation recovery period to the restaurant industry so that restaurant owners can continue to expand their businesses and provide good jobs to American workers.

Mr. KYL

Mr. KYL. Mr. President, I rise today to express my condolences to the family of Mr. Zurab Zhvanai, the Prime Minister of Georgia, who died early today in what appeared to have been a tragic accident. My prayers go out to his wife and his three children that he leaves behind. Prime Minister Zhvania was one of the leading figures that peacefully brought about democratic change in Georgia following the country's fraudulent November 2003 elections. The prime minister, along with Mikail Saakashvili, the current president of Georgia, spearheaded the ``Rose Revolution'' that toppled the government of Eduard Shevardnadze and ushered in a new era in Georgian history, one that has set Georgia on a pro-Western reform path. Prime Minister Zhvania was a dynamic young man who became an inspiration to millions of Georgians, became a close personal friend of many in the Bush Administration, in Congress, and in Washington, DC, and was viewed throughout the world as a positive force for democratic reform in Georgia. His energy, courage, and humility will be missed, and his contributions to democracy and liberty will not be forgotten. The death of Prime Minister Zhvania, while tragic, does not spell the end of democratic reforms in Georgia. In fact, his contributions to Georgian democracy will be long lasting. In the short time Prime Minister Zhvania was in power, he and his team began a process of significant institutional reconstruction and orientation that will one day, in the not-so-distant future, firmly entrench Georgia into the western institutions of the European Union and NATO. Tomorrow, in Tbilisi, a large international conference will convene to discuss Georgia and the Caucasus region integration with the West. And, in less than two weeks, the Community of Democracies will hold a workshop with representatives from more than 17 countries to discuss and develop action plans for further democratic and institutional reform in Georgia. Neither would have occurred had it not been for the courage and dedication to democracy and freedom exhibited by President Saakashvili and his trusted advisor and ally, Zurab Zhvania, which led the Rose Revolution to victory and brought hope to the Georgian people. I believe that one of the finest tributes to the Prime Minister's memory will be for all of us, in Georgia and in the West, to redouble our efforts to ensure that Zurab Zhvania's aspirations for democracy in Georgia are fully realized in the critical months ahead. Let me say that America will continue to work with the people of Georgia, President Saakashvili, and other Georgian leaders to ensure that their aspiration to become fully integrated into the world's community of nations is met, as expeditiously and irreversibly as possible. The United States mourns the loss of such an intelligent and vibrant democratic leader as was found in Prime Minister Zhvania. As President Saakashvili was quoted as saying earlier today, ``I have lost my closest friend, my most loyal adviser, my biggest ally.'' Let me say to President Saakashyili and the Georgian people, America shares your loss and honors the accomplishments and memory of Prime Minister Zurab Zhvania.

Mr. KYL

Mr. KYL. Mr. President, while the Senator from Florida is still in the Senate Chamber, I congratulate him for his first speech in the Senate. I have come to know him as an exceptional public servant. It is fitting he should speak to this issue, the nomination of Judge Alberto Gonzales to be Attorney General of the United States in his first speech. Frankly, I am honored to follow his remarks. They will be not nearly as eloquent, but I hope, nevertheless, persuasive in support of Judge Gonzales's nomination. This is a historic opportunity for America, and especially for me and the constituents in my State, so many of whom are Spanish, are Hispanic, and can understand how significant it is for a young man to rise literally from Humble, TX, where Alberto Gonzales grew up, to reach the pinnacles of power in American Government. They know it does not come easy. Many of them have suffered the same kind of background that could limit a person like Alberto Gonzales but in his case did not because of the support and love of his family and the strength and fortitude that he characterizes and the hard work that enabled him to progress from these humble beginnings, literally in Humble, TX, all the way through our finest educational institutions into one of the finest law firms of this country, and eventually into government when then- Governor George Bush discovered this fine young lawyer and asked him to fill a number of appointed positions in the State of Texas. I was struck by one of the stories that has probably been repeated. It bears repeating. Senator Salazar, in introducing Alberto Gonzales to the Judiciary Committee, on which I sit, for his hearing, related the story of how Judge Gonzales had recalled in his upbringing the fact that during his high school years he never asked his friends to come over to his house because, he said: Even though my father poured his heart into that house, I was embarrassed that 10 of us lived in a cramped space with no hot running water or telephone. That is the situation in which this young man grew up. Yet, as I said, he was the first person in his family to go to college. He ended up graduating from Rice. As a young man he sold pop in the grandstands, dreaming one day of attending that university and graduated from Harvard Law School. After joining a prestigious law firm in Texas, he caught the eye of George Bush, who appointed him general counsel and then secretary of state, and eventually to the Supreme Court of the State of Texas and, of course, as counsellor to the President of the United States when he was elected President. President Bush has had the opportunity to take the measure of this man and to work with him over many years and to appreciate the talents he can bring to the Department of Justice of the United States. Frankly, it is for that reason I think even though some on the other side of the aisle have reservations about Judge Gonzales, they certainly ought to give this man the benefit of the doubt. If anyone deserves the benefit of the doubt it is a person like Alberto Gonzales. Is he perfect? No; none of us are. It seems to me the President, having known this man for so long and having relied upon him personally, would be given some deference in the selection of his nominee, especially given the fact that against great odds Alberto Gonzales has achieved so much in his life. One word about some of the opposition. I don't think people who are watching should be overly concerned about the attacks relating to the subject of terror with respect to Judge Gonzales. They have nothing to do with Judge Gonzales. Their way of articulating frustration and opposition to the President's policies with respect to the war in Iraq--and it is unfortunate that sometimes these political statements and opposition are reflected in the context of a nominee for office-- this is an opportunity for members of the opposition to make their case against the President when they have an opportunity to speak to the Secretary of State's nomination or the Attorney General's nomination or other public officials. But it is too bad for those public officials because, as I said in the case of Alberto Gonzales, most of what has been said has nothing to do with him. He is accused in one case of offering advice to the President with respect to a treaty, and that advice was absolutely correct. In the other case, he is accused regarding the content of a memo he did not author, and therefore it is not his responsibility. Do not be deceived by some of these discussions that might cause you to wonder what does this subject of terror have to do with Judge Gonzales. In this case, the answer is essentially nothing. Back to the point that was the central theme of the Senator from Florida, there are a lot of people in this country who are qualified to be Attorney General of the United States--a relatively small number but nevertheless a lot of people the President could have chosen. It is significant he chose Alberto Gonzales. He is clearly qualified. When someone is qualified and has the confidence of the President, as Alberto Gonzales does, it seems to me those in this body--unless there is some highly disqualifying factor brought to our attention--should accede to the President's request for his nomination and confirm the individual. There is an extra special reason this is meaningful to me. That is because of the number of Hispanics in my State of Arizona and their aspirations and their pride at the achievements they have accomplished. As the Senator from Florida pointed out, it is important for this country to recognize the kind of talent Alberto Gonzales represents and to hold that up as an inspiration to young people to let them know, regardless of their race or ethnicity, if they work hard, even when they come from humble beginnings, this country offers opportunities that are not available in any other country, and regardless of their background they have the opportunity to become the Attorney General of the United States of America. That is a tremendous testament to this country. It is a testament to the Senate which has allowed people like Alberto Gonzales to have an opportunity, to the President for his perspicacity in nominating such an individual for Attorney General. It would be a very strong message not only around this country but around the world for the Senate to confirm the nomination of Alberto Gonzales as Attorney General of the United States.

Mr. KYL

Mr. KYL. Mr. President, this morning, on a party-line vote, the Judiciary Committee agreed to send the nomination for the U.S. Attorney General of Judge Alberto Gonzales to the Senate floor. It is the leader's intention, as I understand it, to bring that nomination to the floor next week. So it appears to me relatively obvious that the United States of America will have a new Attorney General within the next couple of weeks. I did not want the opportunity to pass to talk a little bit about the current Attorney General, a person for whom I have absolute respect and express appreciation for his service, not only for the State of Missouri when he represented that State as Governor and later as a Senator but for all of America during his service in the last 4 years as Attorney General of the United States. I think sometimes people have overlooked the record of this Attorney General. I wanted to take a moment this evening to talk about some of the accomplishments of the Bush administration, and specifically the Justice Department under the leadership of Attorney General John Ashcroft. But first I want to say a couple of personal words about John Ashcroft. When his confirmation hearing was held 4 years ago, there was opposition to him because he was deemed to be a conservative. His views were deemed to be too firmly held. Some people called him rigid in his ideology. Some people thought he was too faithful to his religion. No one questioned his intelligence or his integrity or his experience. He is a graduate of one of the finest law schools in the country, the University of Chicago. He clearly had the public service, as a Governor of the State and as a U.S. Senator. Very few attorneys general had the same kind of experience he had. But throughout his tenure, I think he has been criticized less for what he has accomplished than for the kind of person he is. It ought to be the other way around. People should look at the kind of leadership John Ashcroft has provided the Justice Department and be thankful that we had such a firm, intelligent, upright, faithful, and strong Attorney General. These years have called for strength which we could not have anticipated when John Ashcroft was confirmed just 4 years ago. But because just a few months later this country was brutally attacked in September of 2001, all of our public servants had to begin to operate their departments in a way they had never operated them before. The Justice Department was no different. In fact, the Justice Department was on the front line of our defense of the homeland. There was no Homeland Security Department at that time. Immediately, the Justice Department had to begin changing the way it did business. The FBI, under the jurisdiction of the Justice Department, had major changes. Thankfully, under the leadership of John Ashcroft and now Bob Mueller, the Director of the FBI, things have begun to change, but it has not been easy. Without the strong and firm and steady leadership of John Ashcroft, it would likely not have happened. The first obligation, therefore, of the Attorney General was and is the protection of Americans, preventing another terrorist attack, and ensuring that we maintain the proper balance between the protection of our own civil rights and our security from terrorist attack. During the period of time John Ashcroft has served, we have shut down numerous terrorist operations and cells across America. In fact, I am informed the Justice Department has brought criminal charges against 364 individuals and obtained convictions against 193 of them. Over $2 million in funds has been frozen. I know, because I have talked to Attorney General Ashcroft and foreign leaders, he has been able to forge a relationship with his counterparts in other countries. For example, not to be exclusive, but our European allies helped us go after terrorist cells in countries around the world. Largely because of his success in that, we have been able to integrate our law enforcement activities with other countries. Even though people may be concerned about the support that some of our allies have failed to give us in operations such as those in Iraq, I can tell you the cooperation in law enforcement and going after terrorists and terrorist cells has been very good. That is one of the good news stories in the war on terror, and John Ashcroft had a lot to do with that. With regard to the first obligation that the Attorney General has to the American people, I can't think of a better person to have in place after 9/11 than John Ashcroft. His Department has done a terrific job. One of the areas that is of most concern to me is violent crime. For years, Senator Feinstein and I labored to secure passage of a constitutional amendment to protect the victims of violent crime. No one was more supportive of that effort than Attorney General John Ashcroft. In fact, President Bush came to the Justice Department and, with Attorney General Ashcroft and John Gillis, who heads the Department of Justice office in charge of supporting victims of crime, they made very strong and passionate statements in support of our amendment to protect crime victims. Eventually we were able, this year, to get passed not a constitutional amendment but a Federal law that has been signed into law to protect the rights of people in the Federal court system who were victims of crime, with significant incentives for the same protections to exist in the State courts. John Ashcroft was very supportive of those efforts. I express my great appreciation to him for that. But he has not only worked to help the victims of crime, he has helped to reduce crime itself. There are some interesting statistics here from the Bureau of Justice Statistics. The rate of violent crime is at a historic 30-year low. In the past 3 years, the overall rate of violent crime has declined 27 percent from the previous 3-year period. Over the past 3 years, there has been a double-digit reduction in the rate of rape and sexual assault, a 31-percent reduction; robbery, 31 percent; assault, 26-percent reduction. Obviously, these are not just statistics, these are real people whom we have ensured are not victimized who otherwise might have been victimized. Mr. President, 1.7 million fewer citizens in America have experienced the pain of violent crime in this period between 2001 and 2003. That is not all attributable to the work of the Department of Justice or Attorney General Ashcroft, but a lot of it is. It has been overlooked, and I think he deserves credit for that. Gun crime is something else he pledged to work on as Attorney General, and he kept his pledge. The Justice Department has increased Federal gun crime prosecutions by 68 percent over the past 3 years. In the fiscal year 2003, more than 13,000 offenders were charged, which is the highest figure for any single year. More than 9,500 individuals were convicted, which is the largest number ever convicted in the Federal system in a single year. This has been a priority. As a result, there have been fewer gun crimes committed. On illegal drugs, something we all are concerned about, working with John Walters, the so-called drug czar, the Drug Enforcement Agency, the Department of Justice, and Attorney General Ashcroft have been very committed to going after all of the various aspects of the illegal use of drugs in the United States as well as their importation into the country. There have been a variety of operations, but just to cite an overall statistic, in the past 2 years, 15 major drug-trafficking organizations have been dismantled or disrupted. The statistics on all of the major drugs, from marijuana to the hallucinogens to Ecstasy, LSD, show the use of drugs is falling. Part of that will be the result of the significant efforts of the Department of Justice. We were shocked to see corporate fraud raise its ugly head in this country a couple of years ago, and the Department of Justice went after that with a vengeance. The corporate scandals that had festered for some time were finally brought to light after 2001. As a result of the work of the Corporate Fraud Task Force that the President created, with tough investigation by our prosecutors, the Department of Justice brought more than 900 violators being charged in more than 400 cases. Over 500 individuals have been convicted or pled guilty since that time, including top executives at companies like WorldCom, Enron, Mclone, and others. Why is this important? America has to lead the world in terms of respect for the rule of law and transparency and integrity. This is part of what we believe to be the fundamentals of free government. It is important for the administration and especially the Department of Justice to show that it is committed to ensure that this transparency and integrity remains as a hallmark of our economic system. Therefore, the Corporate Fraud Task Force in its work was critical to achieving that goal. In the other areas for which the Department of Justice has responsibility, from civil rights to civil fraud to environmental enforcement, in each of these areas there have been significant achievements. One statistic: In the area of civil rights, in the past 3 years, 439 people have been charged with criminal civil rights violations, which is more than during the preceding 3 years. Civil fraud recoveries doubled for the past 3 years. By the way, the number is pretty astonishing--$5 billion. In environmental enforcement, there have been a variety of actions. The Department of Justice obtained the largest civil penalty in history against a single company for violation of an environmental statute. There is so much more one could say about the Department of Justice under John Ashcroft's leadership. The point I want to simply make this evening as we are preparing to begin a new administration--a second Bush administration with new leadership in the Department of Justice-- is I think we should reflect a little bit on the achievements of this past 4 years and on the individual who helped to achieve these results. As a former colleague of all of us in the Senate, I know we wished John Ashcroft well when he took his oath of office. Although not all of us have agreed with every action of the Department of Justice since then, I think we have to agree that John Ashcroft's integrity and commitment were hallmarks of his leadership of the Department of Justice. I for one appreciate the personal commitment that he made. Throughout his term, I spent time with John and his family. I know how hard he worked in his job. America has had no more faithful servant. The President has had no more faithful servant in the execution of the policies of the administration than Attorney General John Ashcroft. He put his heart and soul into the job. He committed 4 years of his life to continuing to serve the people of this country. I think for that, and for the great success that his Department achieved, we owe him a debt of gratitude. As we begin this next administration, as we confirm people to serve in the next administration, I hope we will also pause to thank those who have served in the first Bush administration--all of the American people-- and say our hat is off to them, and to say Godspeed, we wish you the very best in the future. Take a little time off so you can reflect a little bit not only on what you did but on what you will need to do now to spend time with family and friends and enjoy the thanks that we are now sharing. I know my colleagues join me in wishing Attorney General Ashcroft well. And perhaps some will have more to say about his service in the past, but I didn't want this opportunity to pass, because he has been truly one of the great public servants to serve this country. I will personally miss him in that position, and I personally wish him well. I suggest the absence of a quorum.

Mr. KYL

Mr. KYL. Mr. President, today, I am pleased to join with Senator McCain to introduce the Northern Arizona Land Exchange and Verde River Basin Partnership Act of 2005. This bill facilitates a large and complex land exchange of over 50,000 acres of Federal and private land in Arizona to consolidate the largest remaining checkerboard ownership in the State. It also encourages the formation of a partnership between Federal, State, and local stakeholders to facilitate sound water resource planning and management in the Verde River Basin. This bill is the product of two years of discussions and compromise between the Arizona delegation, United States Forest Service, community groups, local officials, and other stakeholders. The bill passed the Senate last session, but unfortunately was not enacted before adjournment. I am introducing this legislation with the hope that the Senate will act quickly to pass it early in this Congress. The bill is divided into two titles. Title I provides the framework for the land exchange between Yavapai Ranch Limited Partnership and the United States Forest Service. Title II outlines the key aspects of the Verde River Basin Partnership. The land exchange outlined in Title I is a fair and equitable exchange that will yield many environmental benefits to the citizens of Arizona. It will place approximately 35,000 acres of private land in federal ownership for public use. This acreage is important ecologically because it contains such key features as old growth ponderosa pine, and high quality grassland that serves as excellent habitat for pronghorn antelope and is critical to the preservation of the watershed. In addition, it consolidates under Forest Service ownership a 110-square mile area in the Prescott National Forest near the existing Juniper Mesa Wilderness, to preserve the area in its natural state. Without this land exchange, these private tracts would be open to future development. I am pleased that this bill will preserve them for future generations. The land exchange also significantly improves the management of the Prescott National Forest. The existing checkboard ownership pattern makes management and access difficult. By consolidating this land, the exchange will enable the Forest Service will be able to effectively apply forest restoration treatments to reduce the fire risk and improve the overall health of the forest. I cannot emphasize enough how crucial this is, given the history of devastating forest fires in the state. In addition to protecting Arizona's natural resources, Title I of the bill allows several Northern Arizona communities to accommodate future growth and economic development, and to meet other municipal needs. This exchange will allow the cities of Flagstaff and Williams to expand their airports, meet their water-treatment needs, and develop town parks and recreation areas. The town of Camp Verde will have an opportunity to acquire land to build an emergency center and protect its viewshed. Several youth organizations will be able to acquire land for their camps. This bill addresses one of the most crucial challenges facing Arizona: sound management of water resources. I have heard from many state and local officials, and the constituents affected by the land exchange, that we needed to do more in this bill to address water issues. I note in response that this bill has two key features: First, it establishes a conservation easement on the Camp Verde General Crook parcel, which limits water use after private acquisition to just 300 acre feet a year. This limitation was strengthened from the previous versions of the bill which included a use restriction of 700 acre feet a year. This provision sets an important precedent for responsible water use in the Verde Valley and across the state. Second, and most recently, Senator McCain and I added Title II to the bill. This title facilitates and encourages the creation of the Verde River Basin Partnership to examine water issues in the long term. Such a collaborative, multi-stakeholder group would be authorized to receive federal assistance to develop the scientific and technical data needed to make sound water-management decisions. Finally, this bill saves significant taxpayer dollars. It obviates the administrative route for a land exchange; doing an exchange of this size administratively would require considerable financial and personnel resources from the Forest Service. The agency estimates that using legislation instead will cost half as much as the administrative alternative--resulting in potential savings to the taxpayers in excess of $500,000. This land exchange is a unique opportunity to protect Arizona's natural resources, accommodate the state's tremendous growth, and plan for the future. I intend to work with my colleagues to ensure that we pass this important legislation this year.

Mr. KYL

Mr. KYL. Mr. President, today, I am pleased to join with Senator McCain to introduce the Northern Arizona Land Exchange and Verde River Basin Partnership Act of 2005. This bill facilitates a large and complex land exchange of over 50,000 acres of Federal and private land in Arizona to consolidate the largest remaining checkerboard ownership in the State. It also encourages the formation of a partnership between Federal, State, and local stakeholders to facilitate sound water resource planning and management in the Verde River Basin. This bill is the product of two years of discussions and compromise between the Arizona delegation, United States Forest Service, community groups, local officials, and other stakeholders. The bill passed the Senate last session, but unfortunately was not enacted before adjournment. I am introducing this legislation with the hope that the Senate will act quickly to pass it early in this Congress. The bill is divided into two titles. Title I provides the framework for the land exchange between Yavapai Ranch Limited Partnership and the United States Forest Service. Title II outlines the key aspects of the Verde River Basin Partnership. The land exchange outlined in Title I is a fair and equitable exchange that will yield many environmental benefits to the citizens of Arizona. It will place approximately 35,000 acres of private land in federal ownership for public use. This acreage is important ecologically because it contains such key features as old growth ponderosa pine, and high quality grassland that serves as excellent habitat for pronghorn antelope and is critical to the preservation of the watershed. In addition, it consolidates under Forest Service ownership a 110-square mile area in the Prescott National Forest near the existing Juniper Mesa Wilderness, to preserve the area in its natural state. Without this land exchange, these private tracts would be open to future development. I am pleased that this bill will preserve them for future generations. The land exchange also significantly improves the management of the Prescott National Forest. The existing checkboard ownership pattern makes management and access difficult. By consolidating this land, the exchange will enable the Forest Service will be able to effectively apply forest restoration treatments to reduce the fire risk and improve the overall health of the forest. I cannot emphasize enough how crucial this is, given the history of devastating forest fires in the state. In addition to protecting Arizona's natural resources, Title I of the bill allows several Northern Arizona communities to accommodate future growth and economic development, and to meet other municipal needs. This exchange will allow the cities of Flagstaff and Williams to expand their airports, meet their water-treatment needs, and develop town parks and recreation areas. The town of Camp Verde will have an opportunity to acquire land to build an emergency center and protect its viewshed. Several youth organizations will be able to acquire land for their camps. This bill addresses one of the most crucial challenges facing Arizona: sound management of water resources. I have heard from many state and local officials, and the constituents affected by the land exchange, that we needed to do more in this bill to address water issues. I note in response that this bill has two key features: First, it establishes a conservation easement on the Camp Verde General Crook parcel, which limits water use after private acquisition to just 300 acre feet a year. This limitation was strengthened from the previous versions of the bill which included a use restriction of 700 acre feet a year. This provision sets an important precedent for responsible water use in the Verde Valley and across the state. Second, and most recently, Senator McCain and I added Title II to the bill. This title facilitates and encourages the creation of the Verde River Basin Partnership to examine water issues in the long term. Such a collaborative, multi-stakeholder group would be authorized to receive federal assistance to develop the scientific and technical data needed to make sound water-management decisions. Finally, this bill saves significant taxpayer dollars. It obviates the administrative route for a land exchange; doing an exchange of this size administratively would require considerable financial and personnel resources from the Forest Service. The agency estimates that using legislation instead will cost half as much as the administrative alternative--resulting in potential savings to the taxpayers in excess of $500,000. This land exchange is a unique opportunity to protect Arizona's natural resources, accommodate the state's tremendous growth, and plan for the future. I intend to work with my colleagues to ensure that we pass this important legislation this year.

Mr. KYL

Mr. KYL. I rise today in strong support of the nomination of Dr. Condoleezza Rice to be the Secretary of State. Dr. Rice has a distinguished, 25-year foreign policy career and has served three Presidents. Over the past 4 years, she has worked closely with the President, as his National Security Advisor, to develop and implement a broad range of foreign policy initiatives--among them, the Broader Middle East Initiative, the liberation of Afghanistan from the brutal Taliban regime, the liberation of the Iraqi people from decades of tyranny under Saddam Hussein, the signing of the Moscow Treaty with Russia, the six-party talks with North Korea, and the Millennium Challenge Account, just to name a few. I must say that I was highly disappointed that this body did not vote on Dr. Rice's nomination last week because of the objections of a few Members. Policy disagreements are one thing; personal attacks are quite another. Our country is at war. We need a Secretary of State who will be able to speak on behalf of the President and who will be able to tend to America's fragile alliances. There is no better person for that job. Unfortunately, Dr. Rice was unable to attend the swearing-in of Ukraine's new democratically elected President, Victor Yushchenko. This event, which took place over the weekend, is one of the shining examples of the unmistakable power of freedom and the importance of U.S. leadership in promoting it. Dr. Rice, like the President, understands this vital U.S. role. As she stated in her testimony to the Senate Foreign Relations Committee on January 18: We must use American diplomacy to help create a balance of power in the world that favors freedom. . . . One of history's clearest lessons is that America is safer, and the world is more secure, whenever and wherever freedom prevails. Dr. Rice continued in her statement to discuss the ``three great tasks'' of American diplomacy, one of which is to spread freedom and democracy throughout the world. She noted that, ``No less than were the last decades of the 20th century, the first decades of this new century can be an era of liberty. And we in America must do everything we can to make it so.'' The administration's actions in its first term--including the removal of Saddam's regime in Iraq--adhered closely to the principles articulated by Dr. Rice in her testimony, stated by the President in his inaugural address, and those on which our great Nation was founded. Life, liberty, and the pursuit of happiness are the inalienable rights of every person, not a select few. And when we are able to transform what Natan Sharansky calls ``fear societies'' into free ones, we will not only do a service to those who are the direct beneficiaries of our actions, we will also cultivate an environment in which a lasting peace is attainable. President Bush wants Dr. Rice to serve in his Cabinet as the Secretary of State. Dr. Rice has served this country ably and honorably for many years. This body should act quickly to confirm her to this new position.

Mr. KYL

Mr. KYL. Mr. President, I rise today to talk about the republic of Georgia, America's ally in the war on terror and partner in Iraq. I am not sure if you are aware of this, but the republic of Georgia has dispatched 150 of its troops to participate in the coalition that liberated Iraq and is now assisting in the rebuilding of that country. Last month, the Georgian government announced that it would nearly quintuple its number of forces in Iraq. In recent weeks, much has been heard and seen of the political crisis in Ukraine. A little more than 1 year ago, a similar crisis befell Georgia following its November presidential election. As with Ukraine, the election results appeared rigged in favor of the ruling party candidate. As we all know, the people of Georgia, through a group of brave, young reformers, patriots, and democrats, brought about historic political change in that country. Known now as the Rose Revolution, the forces of democracy, led by Mikhail Saakashvili, prevailed in Georgia and forced then-President Eduard Shevardnadze to resign. During the past year, President Saakashvili's government has dramatically reformed the Georgian government, instituting far-reaching political, economic, and legal reforms. And, just last month, the U.S. Senate passed S. Res. 472 honoring the 1-year anniversary of the Rose Revolution and recognizing the achievements the Georgian government has made in democratizing that country. I would like to focus the remainder of my remarks on a small region in the republic of Georgia called South Ossetia, a place I'm sure relatively few Americans have heard of. But the potential for violence in this region was highlighted by the vicious terrorist attack in September of this year against a school in North Ossetia--in Beslan, Russia, just over the border from Georgian South Ossetia. In 1991, the Soviet Union dissolved and many republics gained independence, including Georgia. But almost since the beginning, some in Russia did not accept the end of the Soviet empire. Russian overt and covert pressure worked to undermine the new-found sovereignty among bordering countries. No former republic was subject to more pressure than Georgia. Russia refused to withdraw its troops--a refusal that continues even today, some 13 years after the collapse of the Soviet Union. In South Ossetia (in north central Georgia), as well as in Abkhazia (in western Georgia), disputes broke out shortly after independence. In both South Ossetia and Abkhazia, Russian forces aided ethnic separatists as a way to weaken Georgia. They sent arms, money, ``volunteers'' and military advisers. In South Ossetia, Russian President Boris Yeltsin negotiated a ceasefire in 1992 and forced Georgia to accept Russian and North Ossetian ``peacekeepers.'' In 1994, the Conference on Security and Cooperation in Europe (now the Organization on Security and Cooperation in Europe or OSCE) took responsibility for diplomatic efforts and monitoring in South Ossetia with the full support of the Georgian government. In 1999, the OSCE added monitoring of the Chechen-Georgian border, and later the Ingush and Dagestani portions of the Georgian border. For 10 years following the OSCE's involvement in South Ossetia, several things happened. First, it became clear that the OSCE was unwilling or unable to take effective measures to resolve the separatist conflict--chiefly because Russia has a veto in the OSCE. The ``peacekeeping'' force has the Georgians out-numbered and out-gunned by South Ossetians, North Ossetians, and Russians. Any effort to expand the OSCE beyond its limited monitoring role or limited geographical area is opposed by Russia. The OSCE mission is unable to monitor Russian violations of Georgian airspace and only rarely uncovers illegal arms shipments. While individuals working in the OSCE mission perform admirably under difficult conditions, the unavoidable fact remains: the OSCE mission in Georgia is deeply and structurally flawed. The second major development was in the economy of South Ossetia. Deeply isolated from the rest of Georgia but having a land link to the Russian Federation, South Ossetia became a giant smuggler's market--in effect criminalizing its entire economy. Cigarettes, alcohol, drugs, arms, and foodstuffs all came in duty-and-tax free. A massive open-air black market operated with impunity in Tskhinvali, the provincial capital of South Ossetia. Profit from the contraband smuggling and sale was distributed among Russian border guards, Russian military officers, and corrupt South Ossetian officials. Some foreign diplomats even suggested this smugglers paradise was positive because it provided employment and low-cost goods. Earlier this summer, Georgian President Saakashvili decided the long- festering status quo was unacceptable--as it would be to the head of state of any democracy. What leader could tolerate separatists armed and sustained by a foreign power, the same foreign power that refuses to withdraw its own illegally stationed troops? What leader could tolerate a massive contraband market supplied directly from Russian territory and operating under the noses of international monitors? What leader could tolerate threats against ethnic Georgians in South Ossetia while foreign ``volunteers'' from Kuban, Abkhazia and Trans-Dniester arrived to fight Georgians--as happened in July 2004? What leader could tolerate separatists whose loyalty is to a foreign country and whose closest connections are with the intelligence services and criminal mafias of that country? It should surprise no one that President Saakashvili began to take steps for the peaceful reincorporation of South Ossetia into Georgia. It should surprise no one that the Russian media portrayed President Saakashvili as rash, reckless, and irresponsible for his efforts. Surprisingly, Russian propaganda was picked up by some in the western media who portrayed democratically elected President Saakashvili's efforts toward national integration as impulsive or erratic. They were not. They were a legitimate effort to reach a peaceful resolution in accordance with international law. In July, South Ossetian forces captured Georgian policemen operating legally in Georgian territory. The Georgian police were disarmed, detained, and paraded in a deliberately humiliating fashion--made to kneel in the town square before Ossetian women while TV cameras filmed everything. Yet, Georgia did not retaliate. In July, Georgian forces intercepted an illegal shipment of air-to-ground missiles for helicopters. The Russians claimed they were for their ``peacekeepers'' who didn't even have helicopters--a claim so dubious as to be ludicrous. Yet, the Georgians promptly offered to return the missiles to the Russians. Despite relentless provocations, Georgia continues to search for a peaceful political solution. President Saakashvili has offered far- reaching autonomy status for South Ossetia, including complete freedom to use the Ossetian language--the issue that originally sparked conflict in 1991. Georgia has continually tried to expand the mandate and mission of the OSCE, including monitoring of the vital road link at the Roki tunnel between Georgia and Russia. Russia blocks any expansion, and the OSCE remains paralyzed. This is where things stand today. On one side is a democratic ally of the United States backed by international law. On the other side is a criminal regime sustained by Russians who have not reconciled themselves to the loss of the Soviet Empire. The United States needs to do more to help our Georgian friends. We should work with the European Union on a joint diplomatic approach so that democratic Georgia is not outnumbered and to avoid the ever-present Russian veto. In the OSCE and the U.N., we should push for expanded monitoring and for genuine peacekeeping forces independent of Russian military and intelligence forces. If this draws a Russian veto, let Russia explain its veto. In the wake of appropriate sympathy for all the Russian victims of separatist terrorism, we should force Russia to explain and justify its continued support for separatists in Georgia. We must also be clear about the ultimate outcome. There will be no independence and there will be no incorporation into Russia for South Ossetia. The only solution for South Ossetia is within a sovereign Georgia. Finally, the U.S. should increase our assistance to Georgia, especially our military assistance. The Georgia Train and Equip Program, GTEP, was very successful in improving Georgian capabilities so that terrorists in Georgia's Pankisi Gorge were killed, apprehended, or forced out. Unfortunately, GTEP was halted after the training of one battalion. GTEP should be reinstated to further increase Georgian capabilities. A strong Georgia is the best guarantee of deterring Russian or South Ossetian military action. A strong and secure Georgia is the best guarantee for the patience required for a multilateral diplomatic solution. And a strong and secure Georgia is in America's interest. Despite all the problems Georgia faces internally and externally, they have deployed troops to fight at our side in Afghanistan and in Iraq. Georgia is a steadfast ally in the war on terror.

Mr. KYL

Mr. KYL. Mr. President, today we vote on the conference report on the intelligence reform bill, S. 2845/H.R. 10. As did the House, we will approve it and send it on to the President for his signature. I strongly believe that our intelligence community must be reformed and appreciate the hard work in support of that objective of those Senate and House Members who have worked on the problem. Nonetheless, I have mixed feelings about this legislation. I am neither convinced that it will fix the core problems in our intelligence community, nor that it will do no harm. Particularly in time of war, prudence demands Congress fully understand the consequences, both positive and negative, of its actions, and be cautious about mandatory change. At the same time, there are some positive reforms that can be easily implemented. I note the inclusion in the conference report of a number of much-needed provisions, which will help to ensure we have the legal authorities and resources we need to effectively fight terror. In fact, title VI includes about half of the provisions of the Tools to Fight Terrorism Act, S. 2679, an omnibus antiterrorism bill that I introduced earlier this year with several other members of the Judiciary Committee and Senate leadership. This is the second time the intelligence reform measure comes before the Senate. We previously considered the Senate version in October, prior to the Presidential election. I voted for it to ensure a modified version could be worked out in conference, and, in the interest of allowing it to move quickly, withdrew an amendment on privacy and civil liberties oversight about which I felt very strongly. I did so with great reservations because of the many deficiencies in the Senate bill, but was assured that my concerns would be addressed in the House-Senate conference. I know that a number of my Senate colleagues voted for the bill with a similar understanding. Unfortunately, I don't believe that some of the commitments to address Members' concerns were fully honored, and I regret that our vote for the bill was used by Senate conferees to suggest almost unanimous Senate support in order to influence House conferees to support the Senate version. The Senator from Maine said the following on October 20: ``I'm very proud of the fact that the Senate produced a bill that passed with only two dissenting votes, and I hope that we can likewise produce a product from this conference that will be signed into law shortly.'' In retrospect, it would have been better to have voted against the flawed Senate bill so House conferees would have understood that it did not enjoy universal support. Over the last 2 months, I pressed my case on privacy and civil liberties oversight and other issues with the Members of the conference committee, the White House, and others. I know that some of my colleagues have done the same. I have studied carefully the final product on which we will vote, and, though some changes have been made, I still have serious reservations that I will discuss today. To summarize: Regarding the central thrust of the bill, reorganization does not necessarily equal reform. This bill does reorganize; but it remains to be seen whether this reorganization will improve or damage the system we currently have in place that gets timely intelligence to our warfighters on the ground. Second, though some changes have been made to the language originally adopted by the Senate, I continue to have serious concerns about the effect of the privacy and civil liberties oversight provisions on the ability of our intelligence officers to perform their missions. I am concerned that the manner in which this oversight will be conducted will exacerbate the problem of risk aversion identified by the 9/11 Commission and the Congressional inquiry on the 9/11 attacks. Third, while I am pleased that some House provisions to reform immigration, as well as a provision I offered as an amendment to the Senate bill, were included in the final conference report, I am very disappointed that we have passed up an opportunity to do more in this area to protect our country. Fourth, while noting my concerns about the intelligence reorganization portion of this conference report, I do want to recognize the inclusion of some important provisions from my Tools to Fight Terrorism Act. During the debate on the Senate version of the intelligence reform bill, I discussed in detail the shortcomings of the 9/11 Commission's recommendations, on which that bill and this conference report are based. Former Secretary of Defense James Schlesinger aptly summarized what I believe to be the key problem: ``[The Commission] has . . . proposed a substantial reorganization of the intelligence community-- changes that do not logically flow from the problems that the Commission identified in its narrative.'' A number of former officials also cautioned Congress from acting hastily to pass legislation without a complete understanding of the problems. For example, the Center for Strategic and International Studies released a statement before the original Senate vote on S. 2845, which warned: ``Rushing in with solutions before we understand all of the problems is a recipe for failure.'' The statement was endorsed by: former Senators David Boren, Bill Bradley, Gary Hart, Sam Nunn, and Warren Rudman; former Secretaries of Defense Frank Carlucci and William Cohen; former Deputy Secretary of Defense John Hamre; former Director of Central Intelligence Robert Gates; former Secretary of State and National Security Advisor Henry Kissinger; and former Secretary of State George Shultz. In recent weeks, the editorial pages of several major papers, while not necessarily sharing the same substantive positions, have strongly urged Congress to begin a new process next year to pursue intelligence reform, rather than rush to pass legislation this year. The Wall Street Journal in a November 22 editorial commented: ``If this reform is really so vital, it will get done, but better to do it in a more considered fashion next year.'' Similarly, in response to Congress not considering the conference report before Thanksgiving, the Washington Post ran an editorial which stated: ``. . . the legislation's failure strikes us as a benefit. More time and more careful deliberation is needed before such sweeping changes are enacted.'' And the Washington Times ran an editorial on November 30 which advised: ``Intelligence reform is necessary, and reasonable people can disagree on what constitutes a good bill without being insulted. Rather than getting it now, we urge Congress to focus on getting it right.'' I don't believe we can say with reasonable certainty that we are getting it right. In large part, this conference report sets up a new bureaucratic structure. It does not, however, tackle the more difficult issue of resolving cultural problems within the intelligence community, including risk aversion, group think, and a failure of leadership. These problems, along with other matters, like immigration reform and legal tools and resources for fighting terror, all identified by the 9/11 Commission, must be addressed if we are to improve our ability to predict and prevent future terrorist attacks. Indeed, those who say that this bill is needed to prevent another 9/11 can no more guarantee that result than those who advocate the status quo, reason being that neither scenario really gets at the core issues. Additionally, and as I already mentioned, we should be mindful of the fact that we are making drastic changes to the structure of our intelligence community and the process by which it operates, while our country is fighting a war. I discussed these concerns on the floor of the Senate during the floor debate on S. 2845, the Senate version of the intelligence bill, stating: In his testimony, Secretary Rumsfeld discussed in detail his concerns about how intelligence community reorganization could potentially adversely affect the Defense Department. He expressed his strong reservations about the national collection agencies--the NSA, NGA, and NRO--being removed from the Defense Department (where they are now located) and aligned under the direct leadership of the National Intelligence Director. He stated: ``We wouldn't want to place new barriers or filters between the military Combatant Commanders and those agencies when they perform as combat support agencies. It would be a major step to separate these key agencies from the military Combatant Commanders, which are the major users of such capabilities.'' The Defense Department worked tirelessly in the decade after the first Gulf War to ensure that the speed and scope of intelligence support to military operations would be improved for future conflicts. It was General Schwartzkopf's view that the national intelligence support during Desert Storm was not adequate. Now, as we've seen from the success of our military operations in Afghanistan, Iraq, and the broader War on Terror, ``gaps and seams,'' as Secretary Rumsfeld refers to them, have been drastically reduced. General Myers, Chairman of the Joint Chiefs of Staff, also expressed his concerns on the subject during his testimony to the Senate Armed Services Committee, stating: ``. . . for the warfighter, from the combatant commander down to the private on patrol, timely, accurate intelligence is literally a life and death matter every day. . . . As we move forward, we cannot create any institutional barriers between intelligence agencies--and of course that would include the National Security Agency, the National Geospacial-Intelligence Agency, and the National Reconnaissance office and the rest of the warfighting team.'' I am concerned that the reorganization package before the Senate places this effective system in jeopardy. In S. 2485, the NSA, NGA, and NRO remain within DOD; but this is somewhat deceiving. These national collection agencies will also be within the newly defined ``National Intelligence Program.'' The Committee-reported bill would essentially remove the Secretary of Defense from any meaningful management role over these agencies. First, the National Intelligence Director would have the authority to appoint the heads of these agencies, albeit with the concurrence of the Secretary of Defense. What makes this unusual and potentially problematic? Well, consider the fact that the Director of the National Security Agency, a General Officer, is dual-hatted as the Deputy Commander for Network Attack, Planning, and Integration at Strategic Command, or that the Director of the National Reconnaissance Office also serves as an Under Secretary of the Air Force. These positions truly support the mission of the Defense Department. Second, the National Intelligence Director would have the authority to execute the budgets of these agencies. It is one thing to say that the NID should manage the entire budget for the National Intelligence Program, and, therefore, to help develop agencies' budgets and even receive their appropriation. It is quite another to altogether remove the Secretary of Defense from the loop by requiring that the NID suballocate funding directly back to the agencies. This effectively removes the Secretary from the management loop. I have studied the Defense Secretary's testimony to the Senate Armed Services Committee, as well as the testimony of other experts. I am also aware that there were some good amendments in the Committee mark-up to help preserve the Defense Department's equities. But I am still not convinced that we are doing no harm. As General Myers commented during the course of the Senate Armed Services Committee's discussion on the subject, ``[T]he devil's in the details.'' The chairmen of the House and Senate Armed Services Committees, as well as other Members of the House and Senate, have played a vitally important role in conference negotiations to make sure that intelligence support to our combatant commanders will not be disrupted. They worked tirelessly to see that changes, some of which the Chairman of the Joint Chiefs of Staff said were needed, would be included in the conference report. I applaud their efforts, and appreciate the changes that conferees were willing to make. Many of the potential defense-related pitfalls of the reorganization that I discussed in the context of the Senate bill have been improved upon. One crucial change is the following provision intended to ensure that the military chain of command is protected: ``The President shall issue guidelines to ensure the effective implementation and execution within the executive branch of the authorities granted to the Director of National Intelligence by this title and the amendments made by this title, in a manner that respects and does not abrogate the statutory responsibilities of the heads of the departments of the United States Government concerning such departments . . .'' Despite the improvements that have been made, and the protections that have been added, I still believe that we simply don't know for sure how the changes we are making will affect the system we currently have in place to support our men and women in uniform. For that reason, we must commit to carefully monitor this legislation's implementation, specifically, the DNI's authority to transfer military personnel within the National Intelligence Program, authority to reprogram and transfer funds, and the role of the DNI in intelligence acquisition programs managed largely by the Defense Department--and be prepared to make changes if necessary. Perhaps the key concern I have with this conference report is its privacy and civil liberties oversight provisions, which are totally extraneous to any problem related to 9/11 and will exacerbate the cultural problems in the intelligence community, in particular, the problem of risk aversion. Risk aversion, which plays out not only in the intelligence community, but also in foreign policy decisionmaking, economics, business investments, and so on, is the tendency to avoid action which might be criticized after the fact because of a poor outcome. There are many potential causes a particular action might have adverse, unintended consequences, might get one into trouble with one's superiors, or might simply draw unwanted attention. When an individual or a Government acts, there is always a calculation of risk; but some Governments and some individuals are more willing to take chances than others. This is a product of both leadership and environment. Risk aversion has contributed to numerous intelligence failures, including the September 11 attacks, according to the 9/11 Commission. One contributor to risk aversion is the belief that third parties, including congressional committees, will challenge decisions after the fact. The Privacy and Civil Liberties Oversight Board included in the Senate bill is just such an institution. I introduced an amendment to the Senate bill which would have modified the privacy and civil liberties oversight provisions because I strongly believed that the bill would have exacerbated the problem of risk aversion by creating a redundant oversight bureaucracy and an unaccountable oversight Board with inappropriate authority over Government officials and private individuals. The bill went far beyond the recommendation of the 9/11 Commission, which was to create an executive branch board to oversee privacy and civil liberties and advise the President. The President created such a board through Executive order in August. In summary, the Senate bill would have established: two officers within the National Intelligence Authority, one responsible for privacy, the other for civil rights and civil liberties; an inspector general within the National Intelligence Authority, who, in part, would monitor and inform the National Intelligence Director of any violations of civil liberties and privacy; an Ombudsman within the National Intelligence Authority to protect against so-called ``politicization'' of intelligence; a Privacy and Civil Liberties Oversight Board with extensive investigative authorities; and privacy and civil liberties officers within the Departments of Justice, Defense, State, Treasury, Health and Human Services, and Homeland Security, the National Intelligence Authority, the Central Intelligence Agency, and any other department, agency, or element of the Executive Branch designated by the Privacy and Civil Liberties Oversight Board to be appropriate for coverage. While I believe that privacy and civil liberties should be protected, I do not believe that oversight should be conducted in a manner that causes intelligence officers to be more worried about getting into trouble than about performing their missions. The question is whose civil liberties are jeopardized by improvement of our intelligence capabilities? The Taliban? Al-Qaida? Saddam Hussein? Not American citizens. The attacks of 9/11 were not caused by civil liberty deprivation; but by inadequate intelligence and immigration law deficiencies. So why hobble intelligence capabilities because of a perceived problem that has never been identified and was in no way involved in the 9/11 attacks? To the extent there is concern about laws such as the Patriot Act, they can be dealt with in the reauthorization of that Act. Such concerns have nothing to do with intelligence reorganization. My amendment would have eliminated some of the redundancy, for example, by paring back the number of officers within the office of the National Director of Intelligence responsible for privacy and civil liberties oversight, and altered the power of the Privacy and Civil Liberties Oversight Board by eliminating subpoena authority and the Board's authority to compel executive branch compliance with its requests. In the interest of allowing the intelligence bill to move forward quickly through the Senate, and noting that the House bill's provisions on the subject were more reasonable, I withdrew this amendment with a verbal understanding that my concerns would be addressed in the House- Senate conference. I pressed my case firmly in writing with the conferees, outlining my concerns and suggesting various ``fixes.'' Some improvements have been made in the conference report. For example, the conference report consolidates the positions within the office of the National Director of Intelligence responsible for privacy and civil liberties oversight into one. But the authorities of the Privacy and Civil Liberties Oversight Board, which was contained in the Senate bill but not in the House bill, remain problematic. Subpoena authority over private individuals, which would have been entirely inappropriate, particularly given the location of the Board in the Executive Office of the President, was removed, and the Board will now be accountable to the President. But the authority to compel executive branch compliance with Board requests remains. And this is the real problem. Departments and agencies are required to comply with any Board request unless a waiver is exercised by the National Director of Intelligence or the Attorney General. This places an additional burden on two key officials, whose attention should be directed toward other issues, including preventing a future terrorist attack. It also will likely foster an environment in which our intelligence officers are increasingly cautious, or risk averse, about completing the very tasks that are required to fulfill their missions. Just because a Board request to a Department-head does not necessarily rise to the level of reasonably exercising a waiver does not mean that it does not act as a deterrent or a distraction to those serving honorably in the intelligence community. Consider this example: The International Red Cross complains that terrorists captured in Pakistan are treated poorly and convinces the Civil Liberties Board to investigate. The Board demands that our CIA station chief in Pakistan testify about what he knows. The DNI demurs on grounds of national security, or doesn't. The hue and cry about ``secrecy'' and ``cover-up'' cause the DNI to allow the Board to interrogate the CIA official. Can anyone deny the national security implications, let alone the resulting risk aversion that would settle into the entire intelligence community? It would be disastrous. I intend to monitor closely the action of this Board once it is put into place to ensure that its investigations and public reporting requirements do not adversely affect our intelligence community, and will urge further limitations on its authority. Fighting terrorists abroad means spying, gathering intelligence. Civil liberties for terrorists should not be high on the list of U.S. reforms for intelligence collection. Again, 9/11 was caused by intelligence failures, not insufficient attention to terrorists' civil rights. A sense of perspective would have eliminated the most egregious features of the conference report. With regard to the immigration provisions included, or not included, in the final bill, I am pleased that a provision I authored requiring mandatory interviews for non-immigrant visa applicants was retained. I am also pleased that some other immigration reform provisions were included in the conference report, including an authorization for an increase in Border Patrol agents by 2,000 in each of fiscal years 2006- 2010; an increase of Immigration and Customs Enforcement agents by 800 in each of fiscal years 2006-2010; an increase in detention beds by 8,000 in each of fiscal years 2006-2010, with priority for the use of these beds to detain aliens charged with inadmissibility or deportability on security grounds. I am also pleased that a requirement to develop and implement a plan to require a passport or other document, or combination of documents, sufficient to denote citizenship and identity for all travel into the U.S. by U.S. citizens and nationals from Western Hemisphere countries, for whom such requirements have previously been waived, is included in the conference report. And that a provision requiring a detailed plan from the Department of Homeland Security, within 180 days, about how to accelerate the full implementation of the biometric document requirement of the Border Security Act that Senators Feinstein, Kennedy, Brownback, and I authored, will be included. There are other good provisions. I am very troubled, however, that many of the important immigration reform provisions included in the House-passed bill were either altered significantly or left out of the conference report. I understand that Members have been assured that such provisions will be considered next year. As the chairman of the Senate Judiciary Subcommittee on Terrorism and a senior member of the Immigration Subcommittee, I have witnessed many times the opportunities for real immigration reform slip through our fingers. This conference measure represents one example. There is no real substantive reason that these important provisions, which were described as immigration reforms but can also be accurately be described as counterterrorism measures, should not have been included in the final bill. The primary goal of this legislation, is to better enable the U.S. Government to prevent future terrorist attacks like that which occurred on 9/11. Many of the House-passed immigration provisions ultimately excluded from the final conference report would have enhanced the Government's ability to prevent entry of, and find, terrorists who wish harm to our country. The public and media debate about immigration reform and the intelligence conference report has focused on driver's license standards and whether States should be prevented from issuing such documents to illegal aliens. The answer is unequivocally yes, and I will discuss this matter again. There are additional important immigration/terrorism reforms that the conference negotiators refused to accept, and by doing so, I believe the bill was seriously, dangerously weakened. I will mention only a handful of them. Importantly, the House-passed bill included a section that would have required aliens in the United States to use only a Department of Justice- or Department of Homeland Security-issued document, or a valid passport, to establish identity to a U.S. Governmental official or worker. This would have effectively prohibited the use of the matricula consular identification card for identification purposes for Federal identification. The conference measure eliminated this section of the bill, and instead provides only for a process for determining minimum standards that passengers will have to present to board a commercial aircraft in the United States. Additionally, the House would have expanded the use of expedited removal by requiring its use in the U.S. as well as along the U.S. border, currently expedited removal is used only at U.S. ports of entry. The conference measure strikes this provision. The House-passed bill would also have overturned a Ninth Circuit precedent that has effectively barred immigration judges from denying asylum claims on the basis of credibility. The Government is barred from asking foreign governments what evidence they have about the terrorist activities of asylum applicants. So the only evidence the Government can use in opposing an asylum request is to argue that the applicant is lying. The Ninth Circuit precedent barring immigration judges from denying asylum claims on the basis of credibility would have been overturned if the conference report retained the House-passed provision; but it was eliminated from the conference measure. Additionally, the Ninth Circuit has been granting asylum to applicants on the basis that their government believes they are terrorists, and, therefore, they deserve asylum because they are being persecuted on account of the political beliefs of the relevant terrorist organization. The House-passed bill overturned this precedent and would have required aliens to show they qualify for asylum based upon the currently protected grounds for receiving such, but conference negotiators refused to accept this provision. Instead, what the final version of the bill included is a Government Accountability Office, GAO, study on the weaknesses in the U.S. asylum system that have been exploited by aliens connected to terrorism. The House version of the bill included a provision to close an existing loophole in immigration law that allows foreign nationals whose visas or other travel documents have been revoked by the State Department on terrorism grounds, to remain in the United States until their visa, or DHS-approved time here, expires, despite the revocation. The current conference report retains that provision, which makes revocation of a visa on terrorism grounds a legal ground for the deportation of the visa holder. However, the conferees created another loophole through which a potential terrorist could remain in the United States despite a visa revocation, by adding language that would allow judicial appeal of any visa revocation decision. Allowing judicial appeal of such decisions will only create another avenue through which a potential terrorist can legally remain in the United States for an undetermined amount of time. Currently all decisions regarding visa issuance by Consular Officers are final, they are not subject to judicial review. The same should be true of visa revocation decisions. A number of Senators, including Senators Grassley, Sessions, Chambliss, Ensign, and I fully supported this provision and contemplated offering as a similar amendment during Senate consideration of the bill. I am disappointed to learn that language was added to allow individuals whose visas have been revoked on terrorism grounds to appeal the State Department's decision. Finally, while increasing the number of Customs and Immigration enforcement officers is important and is accomplished in the conference report, another important House-passed provision, requiring that half of any new immigration investigators be focused on enforcing restrictions on illegal immigrants in the workforce, was not included in the final version of the bill. As I mentioned in the beginning of my comments about the immigration- related sections, an important provision dealing with identity standards in the Federal context was struck from the conference measure. While that measure wasn't necessarily perfect, it certainly represented a good beginning for development of a necessary standard of identification in this country. The House-passed driver's license standards section also represented a very good attempt at eliminating the opportunity for illegal immigrants to obtain driver's licenses, which we all know allows illegal immigrants to live as though they were here legally. While I would very much like to discuss the negative ramifications on the workplace, and States generally, of the illegal immigrant population having such easy access to driver's licenses and other documents that allow them to live as though they are here legally, I will instead focus on how important documentary validity is to preventing terrorists from entering and living in the United States. Both the House and Senate, after reviewing the 9/11 Commission's recommendation, voted to apply some form of standardization to the driver's license. The question really is, Is the Congress willing to get to the root of the problem and prevent illegal immigrants from obtaining such licenses? True, most of the 9/11 hijackers had ``valid,'' but improperly issued, visas. Hopefully, now, the State Department is following the law and making it harder for individuals who shouldn't possess U.S. visas from obtaining them. But that still leaves millions of individuals who enter the country illegally, some of whom could be terrorists, able to obtain the document that will allow them to blend easily into our neighborhoods, workplaces, churches, and mosques, let alone board airplanes or otherwise gain access to sensitive areas. The conference report only requires that States include the following: the person's full legal name; the person's date of birth; the person's gender; the person's driver's license or identification number; a digital photograph; the person's address of principal residence; and the person's signature. And a carve-out was included for States in order that any documentary requirements ``may not infringe on a State's power to set criteria concerning what categories of individuals are eligible to obtain a driver's license or personal identification from that State.'' The driver's license provision included in the final bill will not do much to better secure the license, and will continue to allow illegal immigrants to obtain such documentation. As I have said, there are a number of immigration-related provisions in the conference report that will make a difference, including the section of the bill that requires in-person interviews of non-immigrant visa applicants, an authorization for an increase in consular officer positions, and others. But we also had an opportunity to include other security-related immigration reforms, and we failed. I will work in the 109th Congress to ensure their consideration, and the consideration of other important immigration reform measures. Such consideration is important to the future of our country, from a security perspective and from an economic perspective, and the course we take over the next year or two will, in part, contribute to our success at preventing future terrorist attacks and shape the future of our Nation. I will work to get it right and look forward to working with my colleagues on all of these important issues. As I mentioned, one bright spot in the bill before us today is title VI, which provides new tools to law enforcement to investigate and prosecute terrorist crimes. Title VI includes about half of the provisions of the Tools to Fight Terrorism Act, S. 2679, an omnibus antiterrorism bill that I introduced earlier this year with several other members of the Judiciary Committee and the Senate leadership. Obviously, I am pleased that these important provisions are included in the final legislation. Subtitles A and F through K of title VI of the conference report mirror parallel provisions in the Tools to Fight Terrorism Act. And TFTA itself consists of all or part of 11 other bills that currently are pending in the House and Senate. Collectively, these other bills have been the subject of 9 separate hearings before House and Senate committees and have been the subject of 4 separate committee reports. In addition, the entire TFTA was reviewed in a September 13 hearing before the Senate Subcommittee on Terrorism, which heard testimony from Justice Department witnesses Barry Sabin, Chief of the counterterrorism Section of the Criminal Division, and Dan Bryant, Assistant Attorney General for the Office of Legal Policy, as well as George Washington University law professor Jonathan Turley. These hearings and reports provide a substantial legislative backdrop to title VI of the present bill. The statement that follows is my attempt to provide some guide to navigating this legislative thicket. Of course, one might well ask whether it is an inherent contradiction to rely on legislative history supplied by a judicial conservative, since judicial conservatives tend not to believe in legislative history. The short answer would be that in moments of litigation crisis, every lawyer tends to believe in whatever talismans are available. One might as well help him find them. With that disclaimer, I offer the following effort to illuminate the origins and objectives of the TFTA provisions in title VI. Subtitle A, section 6001, Lone-Wolf FISA Authority ``Moussaoui Fix,'' this section amends FISA to allow orders for surveillance of foreign visitors to the U.S. who appear to be involved in international terrorism but are not affiliated with a known terror group. The need for this provision is explained in Senate Committee Report No. 108-40, which accompanies a bill that Senator Schumer and I introduced at the beginning of this Congress. I quote the relevant passages from that report at length: The September 11, 2001 terrorist attacks on the people of the United States underscored the need for this legislation. Several weeks before those attacks, federal law enforcement agents identified one of the participants in that conspiracy as a suspected international terrorist. These agents sought to obtain a FISA warrant to search his belongings. One of the principal factors that prevented the issuance of such a warrant was FISA's requirement that the target be an agent of a foreign power. Even if federal agents had been able to demonstrate that this person was preparing to commit an act of international terrorism, based on the suspicious conduct that had first brought him to the attention of authorities, the agents would not have been able to obtain a warrant to search him absent a link to a foreign power. As a result, these federal agents spent three critical weeks before September 11 seeking to establish this terrorist's tenuous connection to groups of Chechen rebels--groups for whom we now know this terrorist was not working. It is not certain that a search of this terrorist would necessarily have led to the discovery of the September 11 conspiracy. We do know, however, that information in this terrorist's effects would have linked him to two of the actual September 11 hijackers, and to a high-level organizer of the attacks who was captured in 2002 in Pakistan. And we do know that suspending the requirement of a foreign-power link for lone-wolf terrorists would have eliminated the major obstacle to federal agents' investigation of this terrorist-- the need to fit this square peg into the round hole of the current FISA statute. FISA allows a specially designated court to issue an order authorizing electronic surveillance or a physical search upon probable cause that the target of the warrant is ``a foreign power or an agent of a foreign power.'' 50 U.S.C. Sec. 1805(a)(3)(A), 1824(a)(3)(A). The words ``foreign power'' and ``agent of a foreign power'' are defined in 1801 of FISA. ``Foreign power'' includes ``a group engaged in international terrorism or activities in preparation therefor,'' 1801(a)(4), and ``agent of a foreign power'' includes any person who ``knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power.'' 1801(b)(2)(C). Requiring that targets of a FISA warrant be linked to a foreign government or international terrorist organization may have made sense when FISA was enacted in 1978; in that year, the typical FISA target was a Soviet spy or a member of one of the hierarchical, military-style terror groups of that era. Today, however, the United States faces a much different threat. The United States is confronted not only by specific groups or governments, but by a movement of Islamist extremists. This movement does not maintain a fixed structure or membership list, and its adherents do not always advertise their affiliation with this cause. Moreover, in response to the United States' efforts to fight terrorism around the world, this movement increasingly has begun operating in a more decentralized manner. The origins and evolution of the Islamist terrorist threat, and the difficulties posed by FISA's current framework, were described in detail by Spike Bowman, the Deputy General Counsel of the FBI, at a Senate Select Committee on Intelligence hearing on the predecessor to S. 113. Mr. Bowman testified: ``When FISA was enacted, terrorism was very different from what we see today. In the 1970s, terrorism more often targeted individuals, often carefully selected. This was the usual pattern of the Japanese Red Army, the Red Brigades and similar organizations listed by name in the legislative history of FISA. Today we see terrorism far more lethal and far more indiscriminate than could have been imagined in 1978. It takes only the events of September 11, 2001, to fully comprehend the difference of a couple of decades. But there is another difference as well. Where we once saw terrorism formed solely around organized groups, today we often see individuals willing to commit indiscriminate acts of terror. It may be that these individuals are affiliated with groups we do not see, but it may be that they are simply radicals who desire to bring about destruction. ``[W]e are increasingly seeing terrorist suspects who appear to operate at a distance from these [terrorists] organizations. In perhaps an oversimplification, but illustrative nevertheless, what we see today are (1) agents of foreign powers in the traditional sense who are associated with some organization or discernible group (2) individuals who appear to have connections with multiple terrorist organizations but who do not appear to owe allegiance to any one of them, but rather owe allegiance to the International Jihad movement and (3) individuals who appear to be personally oriented toward terrorism but with whom there is no known connection to a foreign power. ``This phenomenon, which we have seen . . . growing for the past two or three years, appears to stem from a social movement that began at some imprecise time, but certainly more than a decade ago. It is a global phenomenon which the FBI refers to as the International Jihad Movement. By way of background we believe we can see the contemporary development of this movement, and its focus on terrorism, rooted in the Soviet invasion of Afghanistan. ``During the decade-long Soviet/Afghan conflict, anywhere from 10,000 to 25,000 Muslim fighters representing some forty-three countries put aside substantial cultural differences to fight alongside each other in Afghanistan. The force drawing them together was the Islamic concept of 'umma' or Muslim community. In this concept, nationalism is secondary to the Muslim community as a whole. As a result, Muslims from disparate cultures trained together, formed relationships, sometimes assembled in groups that otherwise would have been at odds with one another[,] and acquired common ideologies. ``Following the withdrawal of the Soviet forces in Afghanistan, many of these fighters returned to their homelands, but they returned with new skills and dangerous ideas. They now had newly acquired terrorist training as guerrilla warfare [had been] the only way they could combat the more advanced Soviet forces. ``Information from a variety of sources repeatedly carries the theme from Islamic radicals that expresses the opinion that we just don't get it. Terrorists world-wide speak of jihad and wonder why the western world is focused on groups rather than on concepts that make them a community. ``The lesson to be taken from [how Islamist terrorists share information] is that al-Qaida is far less a large organization than a facilitator, sometimes orchestrator of Islamic militants around the globe. These militants are linked by ideas and goals, not by organizational structure. ``The United States and its allies, to include law enforcement and intelligence components worldwide[,] have had an impact on the terrorists, but [the terrorists] are adapting to changing circumstances. Speaking solely from an operational perspective, investigation of these individuals who have no clear connection to organized terrorism, or tenuous ties to multiple organizations, is becoming increasingly difficult. ``The current FISA statute has served the nation well, but the International Jihad Movement demonstrates the need to consider whether a different formulation is needed to address the contemporary terrorist problem.'' The Committee notes that when FISA was enacted in 1978, the Soviet invasion of Afghanistan had not yet occurred and both Iran and Iraq were considered allies of the United States. The world has changed. It is the responsibility of Congress to adapt our laws to these changes, and to ensure that law enforcement and intelligence agencies have at their disposal all of the tools they need to combat the terrorist threat currently facing the United States. The Committee concludes that enactment of S. 113's modification of FISA to facilitate surveillance of lone-wolf terrorists would further Congress's fulfillment of this responsibility. [In a separate statement of additional views on S. 113, Senator Feingold expresses concerns about the constitutionality of allowing surveillance of lone-wolf terrorists pursuant to FISA. He suggests that by allowing searches of persons involved in international terrorism without regard to whether such persons are affiliated with foreign powers, S. 113 ``writes out of the statute a key requirement necessary to the lawfulness of such searches.'' In order to address Senator Feingold's concerns, the Committee attaches as Appendix E to this report a letter presenting the views of the U.S. Department of Justice on S. 2586, the predecessor bill to S. 113. The Department of Justice's letter provides a detailed analysis of the relevant Fourth Amendment jurisprudence, concluding that the bill's authorization of lone-wolf surveillance would ``satisfy constitutional requirements.'' The Department emphasizes that anyone monitored pursuant to the lone-wolf authority would be someone who, at the very least, is involved in terrorist acts that ``transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.'' (Quoting 50 U.S.C. Sec. 1801(c)(3).) Therefore, a FISA warrant obtained pursuant to this authority necessarily would ``be limited to collecting foreign intelligence for the international responsibilities of the United States, and the duties of the Federal Government to the States in matters involving foreign terrorism.'' (Quoting United States v. Dugan, 743 F.2d 59, 73 (2d Cir. 1984).) The Department concludes ``the same interests and considerations that support the constitutionality of FISA as it now stands would provide the constitutional justification for S. 2568.'' The Department additionally notes that when FISA was enacted it was understood to allow surveillance of groups as small as two or three persons. The Department concludes that ``[t]he interests that the courts have found to justify the procedures of FISA are not likely to differ appreciably as between a case involving such a group . . . and a case involving a single terrorist.''] A provision substantially the same as section 6001 first was introduced as a bill, S. 2586, by Senators Schumer and me on June 5, 2002. The Senate Intelligence Committee held a hearing on S. 2586 on July 31, 2002. Witnesses included James Baker, Counsel for Intelligence Policy with the Office of Intelligence and Policy Review, Department of State; Marion ``Spike'' Bowman, Deputy General Counsel, National Security Law Unit, Office of the General Counsel, FBI; and Fred Manget, Deputy General Counsel, CIA. The same provision was reintroduced in the 108th Congress by me and Senator Schumer as S. 113 on January 9, 2003. S. 113 was unanimously reported by the Judiciary Committee on March 11, 2003. The Committee issued Report No. 108-40 for S. 113 on April 29, 2003. S. 113 was approved by the Senate by 90-4 on May 8, 2003. The same provision also was included in H.R. 3179, which was introduced by House Judiciary Chairman Sensenbrenner and House Intelligence Chairman Goss on September 25, 2003. The House Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on H.R. 3179 on May 18, 2004. Witnesses at the hearing included Dan Bryant, Assistant Attorney General, Office of Legal Policy, Department of Justice; Thomas Harrington, Deputy Assistant Director, FBI; and Bob Barr, former Congressman. The same provision also was introduced as H.R. 3552 by Representative King on November 20, 2003. Subtitle F, section 6501, Sharing Grand-Jury Information With State and Local Governments, this section amends current law to authorize the sharing of grand-jury information with appropriate state and local authorities. I do not think that one can overstate the importance of information sharing, of tearing down the walls that prevent different parts of the Government from exchanging intelligence and working together in the war on terror. A graphic illustration of the importance of streamlined information sharing is provided by another pre-September 11 investigation. Like the Moussaoui case, this investigation also came tantalizing close to substantially disrupting or even stopping the 9/11 plot, and also ultimately was blocked by a flaw in our antiterror laws. The investigation to which I refer involved Khalid Al Midhar, one of the suicide hijackers of American Airlines Flight 77, which was crashed into the Pentagon, killing 58 passengers and crew and 125 people on the ground. An account of the investigation of Midhar is provided in the 9/11 Commission's staff Statement No. 10. That statement notes as follows: During the summer of 2001 [an FBI official] . . . found [a] cable reporting that Khalid Al Mihdhar had a visa to the United States. A week later she found the cable reporting that Mihdhar's visa application--what was later discovered to be his first application--listed New York as his destination. . . . The FBI official grasped the significance of this information. The FBI official and an FBI analyst working the case promptly met with an INS representative at FBI Headquarters. On August 22 INS told them that Mihdhar had entered the United States on January 15, 2000, and again on July 4, 2001. . . . The FBI agents decided that if Mihdhar was in the United States, he should be found. These alert agents immediately grasped the danger that Khalid Al Midhar posed to the United States, and immediately initiated an effort to track him down. Unfortunately, at the time, the law was not on their side. The Joint Inquiry Report of the House and Senate Intelligence Committees describes what happened next: Even in late August 2001, when the CIA told the FBI, State, INS, and Customs that Khalid al-Mihdhar, Nawaf al-Hazmi, and two other ``Bin Laden-related individuals'' were in the United States, FBI Headquarters refused to accede to the New York field office recommendation that a criminal investigation be opened, which might allow greater resources to be dedicated to the search for the future hijackers. . . . FBI attorneys took the position that criminal investigators ``CAN NOT'' (emphasis original) be involved and that criminal information discovered in the intelligence case would be ``passed over the wall'' according to proper procedures. An agent in the FBI's New York field office responded by e-mail, saying: ``Whatever has happened to this, someday someone will die and, wall or not, the public will not understand why we were not more effective in throwing every resource we had at certain problems.'' The 9/11 Commission staff report assesses the ultimate impact of these legal barriers: Many witnesses have suggested that even if Mihdhar had been found, there was nothing the agents could have done except follow him onto the planes. We believe this is incorrect. Both Hazmi and Mihdhar could have been held for immigration violations or as material witnesses in the Cole bombing case. Investigation or interrogation of these individuals, and their travel and financial activities, also may have yielded evidence of connections to other participants in the 9/11 plot. In any case, the opportunity did not arise. Congress must do what it can now to make sure that something like this does not happen again--that arbitrary, seemingly minor bureaucratic barriers are not allowed to undermine our best leads toward uncovering an attack on the United States. Section 6501 is a substantial step in that direction. The change made be section 6501 previously was enacted by the Homeland Security Act, but that change never went into effect because the Federal Rule of Criminal Procedure amended by the HSA was revised by the Supreme Court shortly after the enactment of the HSA, and the amendment made by HSA presupposed the earlier text of the Federal rule. The same provisions were introduced as part of S. 2599 by Senators Chambliss and me on June 24, 2004. Subtitle G, sections 6602 and 6603, and section 5402, Receiving Military-Type Training from and Providing Material Support to Terrorists, section 6602 makes it a crime to receive military-type training from a foreign terrorist group, and section 5402 makes aliens who have received such training deportable from the United States. Section 6603 broadens the jurisdictional bases of the material-support statute. It also clarifies the definitions of the terms ``personnel,'' ``training,'' and ``expert advice or assistance'' in response to concerns expressed in recent court decisions. Furthermore, this section clarifies the knowledge required to violate the statute, and specifies that nothing contained in the statute shall be construed to abridge free-speech rights. All of these sections apply extraterritorially to U.S. nationals, permanent residents, stateless persons whose habitual residence is the United States, and persons who are brought into or found in the United States. In the final version of this legislation, all immigration- and border-related provisions were placed in a new title V, and thus the part of the military-type-training provision making terror trainees deportable ended up in that title as well, as section 5402. The new 5402, rather than referencing the definition of military-type training in 6602, simply duplicates the key part of that definition, a precaution against the event that the now-distant 6602 be repealed or never enacted. Nevertheless, despite their now far-flung nature, these sections still should be read together. Thus 2339D(c)'s definitions of ``serious bodily injury'' and ``critical infrastructure'' should guide the use of those terms in 5402, even though, unlike the definition of ``military type training,'' those definitions are not copied in the deportation section. The extraterritorial scope of 6602, as articulated in 2339D(b), also should inform the application of 5402. The deportation provision is articulated in terms of conduct, which is the same thing everywhere-- rather than offenses--which are a particular creature of each jurisdiction. And obviously, Congress is just as anxious to remove from this country those aliens who trained at an al-Qaida camp in Afghanistan as those who trained in the United States. In two key respects, however, the deportation provision operates differently than the criminal provision. First, the knowledge requirement imposed by the second sentence of 2339D(a) was not imposed in 5402. While scienter is a traditional part of a criminal offense, it was not thought a necessary consideration in deciding which alien visitors should be allowed to remain in this country. If someone trained at a terrorist camp, they should be removed forthwith, regardless of what they claim to have known about their host terror group. Second, 5402 will apply immediately at the time that deportation proceedings are initiated, regardless of the date of the triggering training. As the Supreme Court has noted, deportation ``looks prospectively to the respondent's right to remain in this country in the future.'' INS v. Lopez-Mendoza, 468 U.S. at 1038. Under 5402, the only thing that need have occurred ``at the time the training was received'' is that the training or sponsoring organization have been defined as a terrorist organization. Since there is no reasonable ``reliance'' on any U.S. law whatsoever in attending an al-Qaida or other terrorist training camp, 5402 applies regardless of when the training was received, so long as the group was defined at that time as a terrorist organization. The animating example behind this provision is the alien visitor in the United States who is discovered to have attended an al-Qaida camp in Afghanistan in the summer of 2001. In the judgment of Congress, such a person is a danger to the United States. And under 5402, that person, once discovered, will be immediately deportable. The Justice Department testified in favor of a provision similar to section 6602 at the Terrorism Subcommittee's hearing on the TFTA earlier this year. The joint statement of Messrs. Sabin and Bryant notes that: It is critical that the United States stem the flow of recruits to terrorist training camps. A danger is posed to the vital foreign policy interests and national security of the United States whenever a person knowingly receives military-type training from a designated terrorist organization or persons acting on its behalf. Such an individual stands ready to further the malicious intent of the terrorist organization through terrorist activity that threatens the security of United States nationals or the national security of the United States. Moreover, a trainee's mere participation in a terrorist organization's training camp benefits the organization as a whole. For example, a trainee's participation in group drills at a training camp helps to improve both the skills of his fellow trainees and the efficacy of his instructors' training methods. Additionally, by attending a terrorist training camp, an individual lends critical moral support to other trainees and the organization as a whole, support that is essential to the health and vitality of the organization. And George Washington University law professor Jonathan Turley had the following to say about TFTA's parallel provision to section 6602 in his testimony before the Terrorism Subcommittee: This proposal would fill a gap in our laws revealed by recent cases, like that of Jose Padilla, where citizens have trained at terrorist camps. . . . The proposed crime has been narrowly tailored to require a clear knowledge element as well as a reasonable definition of military-type training. The United States has an obvious interest in criminalizing such conduct and to deter citizens who are contemplating such training. In my view, it raises no legitimate issue of free association or free speech given the criminal nature of the organization. Most importantly, given the use of these camps to recruit and indoctrinate such citizens as Padilla and John Walker Lindh, this new criminal offense is responsive to a clear and present danger for the country. With regard to section 6603, the Justice Department had the following to say about the parallel provision in TFTA at the Terrorism Subcommittee hearing earlier this year: The [provision] . . . improves current law by clarifying several aspects of the material support statutes. This is another key tool in preventing terrorism. As the Department of Justice has previously indicated, ``a key element of the Department's strategy for winning the war against terrorism has been to use the material support statutes to prosecute aggressively those individuals who supply terrorists with the support and resources they need to survive . . . . The Department seeks to identify and apprehend terrorists before they can carry out their plans, and the material support statutes are a valuable tool for prosecutors seeking to bring charges against and incapacitate terrorists before they are able to cause death and destruction.'' Professor Turley, in his Terrorism Subcommittee testimony on TFTA, said of the parallel section to 6603 that ``[t]his proposal would actually improve the current Federal law by correcting gaps and ambiguities that have led to recent judicial reversals. In that sense, the proposal can be viewed as a slight benefit to civil liberties by removing a dangerous level of ambiguity in the law.'' The need for a stronger material-support statute and its application to terrorist training camps were the subject of a hearing before the Senate Judiciary Committee on May 5, 2004. Witnesses included Chris Wray, Assistant Attorney General, Criminal Division, Department of Justice; Dan Bryant, Assistant Attorney General, Office of Legal Policy, Department of Justice; Gary Bald, Assistant Director, Counterterrorism Division, FBI; David Cole, law professor, Georgetown University Law Center; and Paul Rosenzweig, Senior Legal Research Fellow, Heritage Foundation. Subtitle G, Section 6604, Concealment of Terrorist Financing, this section amends current law to prohibit concealing having provided financing while knowing that it has been or will be provided to terrorists. This provision first appeared as part of S. 1837, which was introduced by Senator Grassley on November 6, 2003. The Senate Judiciary Committee held a hearing on the need to better combat terrorist financing on November 20, 2002. Witnesses included Robert J. Conrad, U.S. Attorney for the Western District of North Carolina; Jimmy Gurule, Under Secretary for Enforcement, Department of Treasury; David Aufhauser, General Counsel, Department of Treasury; Nathan Lewin, Lewin & Lewin, LLP; Allan Gerson, Professorial Lecturer In Honors, George Washington University; Jonathan Winer, Alston & Bird, LLP, member, Council on Foreign Relations; and Salam Al-Marayati, Executive Director, Muslim Public Affairs Council. Subtitle H, section 6702, Punishment for Hoaxes about Terrorism or Deaths of U.S. Soldiers, this section imposes criminal penalties for conveying false or misleading information, perpetrating hoaxes, about terrorist crimes or the death or injury of a U.S. soldier under circumstances where such information may reasonably be believed. The Justice Department has commented on the harm caused by false information and terrorist hoaxes. In its TFTA testimony on a parallel provision to 6702 earlier this year, the Department noted: Since September 11, hoaxes have seriously disrupted people's lives and needlessly diverted law-enforcement and emergency-services resources. In the wake of the anthrax attacks in the fall of 2001, for example, a number of individuals mailed unidentified white powder, intending for the recipient to believe it was anthrax. Many people were inconvenienced, and emergency responders were forced to waste a great deal of time and effort. Similarly, in a time when those in uniform are making tremendous sacrifices for the country, several people have received hoax phone calls reporting the death of a loved one serving in Iraq or Afghanistan. And Professor Turley, also at the Terrorism Subcommittee hearing on TFTA, commented on the provision similar to 6702: This new provision would create a serious deterrent to a type of misconduct that routinely places the lives of emergency personnel at risk and costs millions of dollars in unrecouped costs for the federal and state governments. Since a terrorist seeks first and foremost to terrorize, there is precious [little] difference between a hoaxster and a terrorist when the former seeks to shut down a business or a community with a fake threat. . . . This provision responds to the increase in this form of insidious misconduct and correctly defines it as criminal conduct. The key elements of section 6702 were introduced as H.R. 3209 in the 107th Congress by Representative Lamar Smith on November 11, 2001. H.R. 3209 was the subject of a hearing before the House Subcommittee on Crime, Terrorism, and Homeland Security on November 7, 2001. Witnesses included James Jarboe, Section Chief, Counterterrorism Division, Domestic Terrorism, FBI; and James Reynolds, Chief, Terrorism and Violent Crime Section, Criminal Division, Department of Justice. H.R. 3209 was reported by the House Judiciary Committee on November 29, 2001. The Judiciary Committee issued Report No. 107-306 for H.R. 3209 on the same day. H.R. 3209 was unanimously approved by the House of Representatives on December 12, 2001. A provision similar to 6702 also was introduced as H.R. 1678 in the 108th Congress by Representative Lamar Smith on April 8, 2003. H.R. 1678 was the subject of a hearing before the House Subcommittee on Crime, Terrorism, and Homeland Security on July 10, 2003. Witnesses included Susan Brooks, the U.S. Attorney for the Souther District of Indiana; James McMahon, Superintendent, New York State Police; and Danny Hogg, a target of a war-time hoax about a family member serving in Iraq. H.R. 1678 was ordered reported by the House Judiciary Committee by voice vote on May 12, 2004. The Judiciary Committee issued Report No. 108-505 for H.R. 1678 on May 20, 2004. The key provisions of section 6702 also were introduced as S. 2204 by Senator Hatch on March 11, 2004. Subtitle H, section 6703, Increased Penalties for Obstruction of Justice in Terrorism Cases, this section increases from 5 years to 8 years the penalty for obstruction of justice in terror investigations. It also instructs the Sentencing Commission to increase the guidelines range for making false statements in relation to a terrorism investigation. A provision similar to section 6703, albeit increasing the penalty to 10 years instead of just 8, has in the past been included as part of the above-described anti-hoax bills. Subtitle I, sections 6802 and 6803, Expanded WMD Prohibitions, section 6802 expands the jurisdictional bases and scope of existing prohibitions on use of weapons of mass destruction, and includes chemical weapons within the prohibition for the first time. Section 6803 amends the Atomic Energy Act to more broadly prohibit directly and willfully participating in the development or production of any special nuclear material or atomic weapon outside of the United States. This section also makes it a crime to participate in or provide material support to a nuclear weapons program, or other weapons of mass destruction program, of a designated terrorist organization or state sponsor of terrorism. And the offense created by this provision applies extraterritorially. In his TFTA testimony about parallel provisions to sections 6802 and 6803 before the Terrorism Subcommittee earlier this year, George Washington University law professor Jonathan Turley stated: [Section 6802, the WMD-statute provision] would close current loopholes in the interest of national security and does not materially affect civil liberty interests. [Section 6803] would criminalize the participation in programs involving special nuclear material, atomic weapons, or weapons of mass destruction outside of the United States. This new crime with extraterritorial jurisdiction is an obvious response to recent threats identified by this country and other allies like Pakistan. The obvious value of such a law would be hard to overstate. . . . It is important for the purposes of our extraterritorial enforcement efforts to have a specific crime on the books to address this form of misconduct. These sections are substantially the same as H.R. 2939, which was introduced by Representative Forbes on July 25, 2003, and S. 2665, which was introduced by Senator Cornyn on July 15, 2004. Subtitle J, sections 6901-11, Prevention of Terrorist Access to Special Weapons, this subtitle is designed to deter the unlawful possession and use of certain weapons, Man-Portable Air Defense Systems, MANPADS, atomic weapons, radiological dispersal devices, and the variola virus, smallpox, whose potential misuse are among the most serious threats to homeland security. MANPADS are portable, lightweight, surface-to-air missile systems designed to take down aircraft. Typically they are able to be carried and fired by a single individual. They are small and thus relatively easy to conceal and smuggle. A single attack could kill hundreds of persons in the air and many more on the ground. Atomic weapons or weapons designed to release radiation, ``dirty bombs,'' could be used by terrorists to inflict enormous loss of life and damage to property and the environment. Variola virus is the causative agent of smallpox, an extremely serious, contagious, and often fatal disease. Variola virus is classified by the CDC as one of the biological agents that poses the greatest potential threat for public-health impact and has a moderate to high potential for large-scale dissemination. There are no legitimate private uses for these weapons. Current law allows a maximum penalty of only 10 years in prison for the unlawful possession of MANPADS or an atomic weapon. No statute criminalizes mere possession of dirty bombs. Knowing, unregistered possession of the variola virus is subject only to a maximum penalty of 5 years. Sections 6903-06 make unlawful possession of MANPADS, atomic weapons, radiological devices, or variola virus a crime with a mandatory minimum sentence of 25 years to life. Use, attempts to use, or possession and threats to use these weapons are a crime with a mandatory minimum sentence of 30 years to life. Use of these weapons resulting in death is subject to a mandatory minimum sentence of life imprisonment. These penalties should especially help to deter middlemen and facilitators who are essential to the transfer of these weapons. Section 6907 amends current law to add the criminal offenses created by this subtitle as federal wiretap predicates. Section 6908 amends current law to include these new offenses in the definition of ``Federal crime of terrorism.'' Section 6909 amends current law to include these new offenses in the definition of ``specified unlawful activity'' for purposes of the money laundering statute. And section 6910 amends the Arms Export Control Act by adding the offenses created by this subtitle to the provision specifying crimes for which a conviction or indictment is a ground for denying an arms-export application. In his Terrorism Subcommittee testimony on TFTA earlier this year, Professor Turley said the following about a provision parallel to subtitle J: Given the enormous threats to our country from such weapons, these increased penalties are manifestly reasonable. . . . While it is certainly possible that a defendant could be in possession of a MANPADS as part of arms trafficking or some other motive than terrorism, this is clearly one of the most likely forms of terrorist conduct. Subtitle J is the same as S. 2664, which was introduced by Senator Cornyn on July 15, 2004. Subtitle K, section 6952, Presumption of No Bail for Terrorists, this section would add terrorist offenses to the list of offenses, such as drug crimes, that are subject to the statutory presumption of pretrial detention. Under current law, a criminal suspect will be denied bail in Federal court if the Government shows that there is a serious risk that the suspect will flee, obstruct justice, or injure or threaten a witness or juror. The judge must presume this showing is present if the suspect is charged with a crime of violence, a drug crime carrying a potential sentence of 10 years or more, any crime that carries a potential sentence of life or the death penalty, or the suspect previously has been convicted of two or more such offenses. This section would add terrorist offenses that are subject to a maximum penalty of at least 10 years to this list, judges would be required to presume that facts requiring a denial of bail are present. This is only a presumption, the terror suspect still could attempt to show that he is not a flight risk or potential threat to jurors or witnesses. The Justice Department testified as to the importance of this provision at the Terrorism Subcommittee hearing on TFTA: Current law provides that federal defendants who are accused of serious crimes, including many drug offenses and violent crimes, are presumptively denied pretrial release under 18 U.S.C. Sec. 3142(e). But the law does not apply this presumption to those charged with many terrorism offenses. To presumptively detain suspected drug traffickers and violent criminals before trial, but not suspected terrorists, defies common sense. This omission has presented authorities real obstacles to prosecuting the war on terrorism, as Michael Battle, U.S. Attorney for the Western District of New York, testified before this subcommittee on June 22. In the recent ``Lackawanna Six'' terrorism case in his district, prosecutors moved for pre-trial detention of the defendants, most of whom were charged with (and ultimately pled guilty to) providing material support to al Qaeda. It was expected that the defendants would oppose the motion. What followed was not expected, however. Because the law does not allow presumptive pre-trial detention in terrorism cases, prosecutors had to participate and prevail in a nearly three-week hearing on the issue of detention, and were forced to disclose a substantial amount of their evidence against the defendants prematurely, at a time when the investigation was still ongoing. Moreover, the presiding magistrate judge did in fact authorize the release of one defendant, who, it was later learned, had lied to the FBI about the fact that he had met with Usama Bin Laden in Afghanistan. The Lackawanna Six case illustrates the real- life problems the absence of presumptive pre-trial detention has posed to law enforcement. But this shortcoming in the law has also enabled terrorists to flee from justice altogether. For example, a Hezbollah supporter was charged long ago with providing material support to that terrorist organization. Following his release on bail, he fled the country. The suspect described above eventually was recaptured by the United States six years after his escape. During that time, he was not a participant in a terrorist attack against the United States, but he could have been. Law Professor Jonathan Turley also commented on the legislative ancestor of section 6952 in his testimony at the Terrorism Subcommittee hearing on TFTA. He stated: [Section 6952] would create a presumption against bail for accused terrorists. Under this amendment, such a presumption could be rebutted by the accused, but the court would begin with a presumption that the accused represents a risk of flight or danger to society. This has been opposed by various groups, who point to the various terrorist cases where charges were dismissed or rejected, including the recent Detroit scandal where prosecutorial abuse was strongly condemned by the Court. I do not share the opposition to this provision because I believe that, while there have been abuses in the investigation and prosecution of terrorism cases, the proposed change sought by the Justice Department is neither unconstitutional nor unreasonable. This proposal would not impose a categorical denial of bail but a presumption against bail in terrorism cases. Congress has a clearly reasonable basis for distinguishing terrorism from other crimes in such a presumption. In my view, this would be clearly constitutional. While I have been critical of the policies of Attorney General John Ashcroft, I do not share the view of some of my colleagues in the civil liberties community in opposition to this change. There is currently a presumption against pretrial release for a variety of crimes in 18 U.S.C. Sec. 3142(e), including major drug crimes. It seems quite bizarre to have such a presumption in drug cases but not terrorism cases. Section 6952 is substantially the same as the main provision of H.R. 3040, which was introduced by Representative Goodlatte on September 9, 2003. I introduced the same bill as S. 1606 on September 10, 2003. S. 1606 was the subject a hearing before the Senate Subcommittee on Terrorism, Technology, and Homeland Security on June 22, 2004. Witnesses included Rachel Brand, Principal Deputy Assistant Attorney General, Office of Legal Policy, Department of Justice; Michael Battle, U.S. Attorney, Buffalo, NY; and James K. Robinson, former Assistant Attorney General, Criminal Division, Department of Justice. I have spent considerable time reviewing this conference report and thoughtfully considering its provisions. I have serious reservations and agree with the many experts in this field who have urged a more thorough study of the intelligence community's problems and, likewise, a careful matching of those problems to solutions. Though I appreciate the hard work of the 9/11 Commission to help Americans understand how 9/11 happened, the Commission's recommendations--on which it spent far less time than on the narrative it took some 18 months to assemble--are not the final answer to the intelligence community's problems. I intend to support this conference package, noting the improvements that have been made since Senate consideration, but I intend to closely monitor its implementation. I also strongly believe that Congress needs to focus its attention next year on resolving the more difficult problems in the intelligence community and, more broadly in the homeland security arena, like immigration, not addressed in this legislation. I will work with my colleagues in the House and Senate to ensure this happens.

Mr. KYL

Mr. KYL. Mr. President, with Congress having passed S 437, I make a commitment to the San Carlos Apache Tribe to work next year to help attain and have enacted a fair Gila River water settlement for the tribe. The Gila River runs through the tribe's reservation. San Carlos Reservoir is located within their reservation. The tribe deserves a fair settlement of its water rights claims to that river and I want my colleagues and others to know that I am absolutely committed to achieving that. I had hoped to have been able to bring to the Senate legislation that would include a Gila River water settlement for this tribe. Unfortunately, we were unable to do that. The tribe is working toward a settlement with a number of groups that use the Gila River. I hope that the tribe, the United States, and the local non-Indian water users will be able to settle the tribe's water rights claims in the coming year. In connection with that effort, I want to send a strong message to the settlement negotiators: I expect everyone to negotiate in good-faith toward a fair settlement. I encourage all parties, including the San Carlos Apaches, to engage earnestly and vigorously to complete a Gila River water settlement as soon as possible. I will then work with both the Senators from New Mexico and my Senate colleagues to see that such an agreement is ratified through legislation next year.

Mr. KYL

Mr. KYL. Mr. President, let me mention our colleague Zell Miller. Zell Miller is another person who will be in the history books of this body because of his passion and because of his unique character as well. He is probably best exemplified by one of the books he has written called ``Corps Values,'' obviously a reference to the U.S. Marine Corps, in which he describes how a lot of the values that have animated the course of his career and the values he has held dear throughout the rest of his life came from his training as a marine and from his drill sergeant whom he describes so vividly in the book as having almost literally pounded some very important lessons of life into Zell's head at a very young age--lessons that he took away to apply throughout the rest of his life and which have stood him in very good stead throughout his career. He has represented the people of his State of Georgia with passion and with great capability, not only as Governor but then to come to the Senate. He has certainly been a friend of people on both sides of the aisle. He is a Democrat, but he still, of course, has many friends here on the Republican side of the aisle. I can't think of Zell without thinking of some of the more humorous things he has done as well because despite his passion and enthusiasm, he also has a very good sense of humor. I remember one case in particular when he and Phil Gramm from Texas, who has left the Senate, teamed up to offer an amendment which had no chance of passing. There was no real rationale for it. It was an amendment to exempt pickup trucks from the mileage standards we were going to apply to all other vehicles in the Energy bill, but they thought there was something kind of un-American about having these standards applied to pickup trunks. The two of them offered the amendment. During the course of the debate, more and more people came over here to listen to them. Their case made such great sense that one by one the Senators began to think maybe this is an amendment that ought to pass. At the end of the day, when they pointed out that, after all, there was no other place to haul your coon dogs when you are going to hunt, or have the rack for your gun, and all of the other things they pointed out what a pickup is for, and no other vehicle could do that job, the Senate finally, I think on a voice vote, acquiesced in their amendment. Because, after all, it made sense when Zell Miller and Phil Gramm argued that pickup trucks should be exempted from that standard, we exempted pickup trucks from that standard. In other words, they knew how to have fun with the seriousness of this body to point out some of the commonsense things most Americans believe and we sometimes forget here in this body. He is a man of great common sense, a man of the people who loves America greatly, and who certainly inspired me, Senator Zell Miller from Georgia. These are only four of the colleagues who are going to be leaving us at the end of this session. These are Senators whom I became particularly close to. I wanted to say a word about each one of them, to wish them all the very best, bid them farewell, also to know they have too many friends around here to ignore. And we are going to be staying in touch with every one of them. We thank them for their service to the people of their States, to the Senate, and to the people of the United States of America.

Mr. KYL. Mr. President, my colleague Peter Fitzgerald from Illinois is an extraordinarily smart and focused individual who came to the Senate to represent his State of Illinois and did so with great passion, enthusiasm, and courage, in some cases, when he had to stand against a lot of other Members who were attempting to act in ways he felt were inimical to the interests of his State. Peter Fitzgerald, though here only one term, I think will be remembered as a great Senator from the State of Illinois and certainly a colleague I will miss personally. Senator Zell Miller

Mr. KYL. Mr. President, I wish to say a word about another of our colleagues, Ben Nighthorse Campbell. Senator Campbell and I served together in the House of Representatives. He is unique in the history of the Senate. He is a Native American who came first to the House and then to the Senate. He represents the people of the State of Colorado, as does the Presiding Officer, with distinction. He is a real man of the people. He is a jeweler, a motorcycle enthusiast, a real athlete-- an Olympian, as a matter of fact, in judo. He is a man whose interests are extensive beyond the kind of humdrum interests sometimes we in the Senate focus on. He brought a lot of spirit and a lot of light to this body. I know Ben will be missed by every one of us as well. Senator Peter Fitzgerald