Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. KYL. Mr. President, the first is amendment No. 3926, which is at the desk, and I ask that amendment be read.

Mr. KYL. Mr. President, I think the Senator from Georgia has covered this area very well. I spoke to it yesterday. I know Senator Stevens is here to lay down some amendments. I will take a few minutes to add one primary thought to what the Senator from Georgia has said, and then quickly lay down three amendments, and then I will be done. Let me make this one key point about what the Senator from Georgia is talking about. The 9/11 Commission did not recommend the board or the many different assistant directorships and other provisions, from an ombudsman to IGs and the like, that are included in the legislation that is before us today. I am going to tell you what the 9/11 Commission did recommend. What it recommended is what the President has done. What the committee did went far beyond that. Our amendment does not eliminate all of that, but at least it cuts it back to some extent. That is what I want to explain. Senator Durbin discussed this privacy amendment at length yesterday. His primary point was that the 9/11 Commission recommended this, and therefore the committee did it, and therefore we ought to not amend it out. In fact, one of the things he said was the 9/11 Commission recommended this board, and following their recommendation, the legislation included it. What exactly did the 9/11 Commission recommend? There were three specific recommendations. They take one and a half pages out of the entire report. I will paraphrase the first two because they are not directly on point: As the President determines the guidelines for information sharing among government agencies and by those agencies with the private sector, he should safeguard the privacy of individuals about whom information is shared. Fine. Two: The burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive's use of the powers. . . . And three, and this is the key: At this time of increased and consolidated government authority, there should be a board within the executive branch to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties. That is it. As the Senator from Georgia said, that is exactly what the President did in his Executive Order 13353. The Senator from Georgia described what that Executive order does. I have a full copy of all the entities involved in it, the instructions to that board to bring any credible information of possible violations of law to appropriate end, to undertake other efforts to protect the legal rights of all Americans, including freedoms, civil liberties, and information privacy guaranteed by Federal law, and so on. In other words, what the 9/11 Commission recommended the President did. What is in this bill goes far beyond that. What I said yesterday with respect to risk aversion makes it clear that what the committee did not only goes far beyond what the 9/11 Commission recommended but will virtually guarantee that the risk aversion, which is a problem today, is exacerbated tenfold so that instead of being able to collect more intelligence and analyze that intelligence better and have people who are not involved in group-think, who are actually willing to think outside the box and not be intimidated by risks aversion, instead of that, we are going to get more of that because of all the layers of bureaucracy that is going to be looking over people's shoulders. What the bill does is require two officers within the national intelligence authority, two out of six, one responsible for privacy, the other for civil rights and civil liberties. In addition, there is an inspector general within the national intelligence authority who, among other things, is to monitor and inform the director of violations of civil liberties and privacy. There is an ombudsman, which I mentioned a moment ago. There is an independent privacy and civil liberties oversight board with extensive investigative authorities, which the Senator from Georgia talked about, and privacy and civil liberties officers within a long list of executive branch departments and agencies. So what does the amendment we have offered do? It deletes sections 126 and 127 which require officers for privacy and civil liberties within the national intelligence authority because those already exist; it would strike section 212 requiring privacy and civil liberties officers within a long list of executive branch departments and agencies; and it would modify the privacy and civil liberties oversight board described in section 211. It does not eliminate it, so it would be duplicative of the board the President created. There will be an executive branch board and an outside board, but this board would not have the authority to subpoena private individuals or documents and reports, accounts, and other evidence of private individuals, nor would it have the power to compel through subpoena, for example, a department or agency to present documents. I am not even sure, by the way, this board would have the authority to do that under the Constitution. I am not sure that authority could be granted. In any event, that would be a very pernicious power granted to it when that power already exists in the ombudsman, in the inspector general, and the other privacy officers that exist. It is duplicative and unnecessary. The net result of all these different entities that have the same responsibility is to basically tell intelligence agencies: If you want to get to the end of your career and have a pension at the end of it, you better watch over your shoulder because there are a whole lot of other people doing that. That is not the way to enhance our security. Those are the additional points I wanted to make in addition to those I made yesterday with respect to this amendment. I hope before we vote on this amendment we will have an opportunity to present these arguments in short form with all of the Members in attendance. Mr. President, I indicated to the chairman of the committee what I intend to do next. Therefore, since our procedure is to lay down one amendment at a time, I ask unanimous consent to lay down three amendments, and I will explain what they are.

Mr. KYL

Mr. KYL. Mr. President, neither the 9/11 Commission nor the Senate Intelligence Committee, nor anyone else that I am aware of, has said the problem leading up to the attack of 9/11 was due to too much intelligence. The problem, obviously, arose because we didn't have enough intelligence. We could not gather enough information in a timely way to put together all of the possibilities--some say connect the dots--in order to predict that a particular kind of attack was going to occur on that day. We have had a lot of good, constructive suggestions from the 9/11 Commission, from the Senate Intelligence Committee, from the administration, from the work of the Governmental Affairs Committee, and from other commissions in trying to understand why we didn't have enough intelligence and why we could not put all of this together. Many of the recommendations of the Commission and the legislative solutions in the proposed bill try to correct that problem of not having enough good intelligence. None of the problems identified suggested that we had too much intelligence and the problem was that people's civil liberties were somehow being jeopardized, or that their privacy rights were being jeopardized. Nobody has ever said that was a problem. Subsequent to 9/11, we passed the PATRIOT Act. It has been signed into law and most law enforcement officials, the administration, and others argue persuasively, I think, that it has done a lot to help them win the war on terror by collecting additional intelligence. Some have concerns about some of the provisions of the PATRIOT Act with respect to civil liberties or privacy rights. But those are issues that have come up subsequent to 9/11. My point is that the problem before 9/11 was not having too much intelligence and that jeopardized people's privacy or civil rights. Therefore, it comes as a great surprise to me that there is such a huge emphasis in the committee bill on privacy, civil rights, on having an ombudsman to protect people's rights, on having such an emphasis within the national intelligence directorate on these subjects, having a special board that would look into it, with subpoena powers, outside the intelligence community, and so on. It is my considered judgment, having served on the committee for 8 years, and having heard testimony from a great many people, including Richard Clark, by the way, who testified that risk aversion was one of the key problems leading up to 9/11--it is my judgment that the overkill of all of these provisions in the bill is a fatal flaw in this legislation, which must be corrected, or else what we would have done is to rearrange the bureaucracy here, putting a person in charge as the national intelligence director and making some other changes but crippling his effort and the efforts of the intelligence collection gatherers, analysts, and others in their ability to protect us by gathering intelligence. Risk aversion, which is a big problem today, will be a huge problem in the future because, in addition to the people today who are looking over the shoulders of the intelligence community, we will have a whole array of new entities with great powers looking over their shoulder; and all of the effort that we are going through to try to begin saying that people should think outside the box, should be bold, innovative, and imaginative, that we need more human intelligence, and that those human intelligence agents are going to do things to gather more intelligence--we should have people who are willing to think outside the box. All of that is going to be significantly jeopardized because of the risk aversion that will be blanketed over all of the community with all of these different entities saying, wait a minute, we understand you are trying to collect intelligence, but we have people's civil rights and privacy rights and all the rest to be concerned about as well. Of course those are legitimate concerns. That is why we have entities today that help to ensure that privacy and civil rights are not jeopardized. It is enough. This bill creates so many new opportunities for people who object to intelligence gathering and analysis in the way we know it needs to be done that they are going to be able to ball up forever any ability to get meaningful intelligence if we are not careful about how we construct this bill. Let me tell you a little bit about what I am talking about. Here is a bit of background. Risk aversion--we understand what it means. It was testified to by people such as Richard Clark and others before the Intelligence Committee as the mindset which exists if you do anything out of the ordinary, if you go against the grain, if you collect by unorthodox measures, if you analyze intelligence in a way that might be contrary to the superiors above you in the organization, or to what somebody in Congress or somebody else wants to see, or if the actions that you take have some degree of risk associated with them--either political risk or legal risk, or certainly operational risk in terms of casualties and the like--therefore, because of all of these things there is an aversion to taking those risks. Government employees who have a career, who have their retirement in mind, and who want to continue to work with the agency want to be sure they are able to continue their careers, do their jobs, and not, because they perhaps work outside of the box, be penalized for doing that. Agent Rowling of the FBI talked about this in her inability to get the FBI to act on a warrant request she sought to look into Zacarias Moussaoui's computers. One of the reasons they didn't act was out of a ``political correctness''--their term, not mine--that concerned them about the view that it would look like they were going after somebody on the basis of racial profiling, or some kind of profiling, rather than because they were under suspicion of committing a crime. This is the kind of risk aversion that everybody agreed was part of the problem with the intelligence gathering and analysis prior to September 11. How do you make that situation worse? You do it by adding new layers of people who are second-guessing these intelligence agents and analysts. There are enough people second-guessing them already, imposing the legal and political layer or filter of approval of the actions of the people in the field. But what the bill does is to create whole new layers. First, it follows a recommendation of the 9/11 Commission to create some kind of outside board, but goes far beyond the 9/11 Commission recommendations in empowering this board with subpoena power, literally the authority of this outside board, that is not within the intelligence community at all, a citizen board, to haul in any agent anywhere in the world and grill him about what he did or did not do or what he concluded or did not conclude, with no guidance whatsoever. This is a recipe for disaster. In addition, as if that were not enough, of the six assistant directors of the national intelligence directorate, fully a third of them, two out of the six, have nothing to do with intelligence collection or analysis; they are the privacy and civil rights division. First, one wonders why those are not the same thing and, second, why you would have to have two out of the six directorates specifically charged with this responsibility. We already have an inspector general whose responsibilities include any situation in which an agent or agency went beyond legal authority or beyond other appropriate authority in the conduct of his or her business. But in addition to the inspector general, in addition to the officers who currently exist in each of the agencies of the intelligence community--virtually all of them--to deal with privacy and civil rights concerns--these already exist--we create two new directorates with this legislation: this outside civilian board and an ombudsman. In looking through the ombudsman's responsibilities, for example, pity the poor intelligence agent who raises a question that causes this ombudsman to have to question him. This is not even to get into the congressional oversight which we want to enhance. Our working group, which is developing the improvements to the Intelligence Committee operation, will be soon, I think, be making a recommendation to the body, either in conjunction with the underlying bill or as an amendment to it, that will also fold in enhanced congressional oversight. We want enhanced congressional oversight, but it is a double-edged sword because it has been abused in the past and can be abused in the future. When Members have not intelligence as their first priority but questioning somebody within the intelligence community, they can be pretty hard on the intelligence community. We can go all the way to the Church Commission in 1976 to see what kind of damage that can do. So we need to be careful about this congressional oversight, but it is going to be enhanced. We are going to improve our ability to oversee the intelligence community. In addition to the offices that exist today, and in addition to the inspector general, and in addition to the enhanced congressional oversight, we are creating two more directorates, an outside board, and an ombudsman, all of whom have essentially the same general responsibility of questioning whether the intelligence agents, agencies, analysts, and others are doing their job properly. Then we will ask ourselves why we could not get anybody to think outside the box, to be forward leaning, to try to be aggressive in collecting intelligence, why everybody was meekly following a very single straight line. The fact that we are creating a national intelligence director creates a bit of a problem in this regard in the first place because instead of having a wider array of entities involved, each with their own points of view, sort of the devil's advocate concept recommended by many, including the 9/11 Commission, to get out of a single-channel orientation group-think, we are making the problem worse, in my view, by creating this single national intelligence director. If you want a career in the agency, you better not run afoul of what the director wants and what his views are. That is the reality of bureaucracy, and it exists in every agency of the Government, not just the intelligence community. But in the intelligence community, it is particularly important because we want people who are willing to question, to go against the grain, to disagree with their boss, to take a risk. If we look back at President Clinton's directives to the intelligence community, he tried to be forward leaning, especially with regard to al-Qaida and Osama bin Laden. To paraphrase, in effect what he said is we have to do everything we can to try to get these guys. Repeatedly, efforts were made to bring to his attention operations that would either improve our intelligence or operationally deal with al-Qaida and Osama bin Laden. They were shot down by the Pentagon, by the Secretary of State, by the National Security Adviser, by the lawyers, by the intelligence community itself, the Director of the CIA. Every time we tried to do something, almost, somebody said this is too risky; we cannot do it. That was why the 9/11 Commission, the Senate Intelligence Committee, and many other observers have said we have to get out of this stultifying risk-aversion environment where people are afraid that somebody is looking over their shoulder and is going to jump on them if they do anything that is the least bit out of the ordinary or risky. We have to have the out of the ordinary and risky if we are ever going to defeat this very unconventional enemy. What does the bill do? It does not try to solve the problem; it makes it far worse. The purpose of our amendment is to say we will follow the 9/11 Commission recommendation and set up this outside commission, but for Heaven's sake, let's not give it the kind of subpoena power-- Congress already has that, the inspector general already has the ability to look into all of these things. We do not need an outside board of five, or whatever, people accountable to nobody with the ability to totally disrupt what the intelligence community is doing. It is fine to report to Congress, to analyze what they think the situation is and let us know what their concerns are. But that is far different from operationally getting right down into the bowels of the organization with hands that can extract anything, classified or not, subpoena anybody, whether in Afghanistan or Langley or wherever, and publicly question what is being done. That is the first part of the amendment. The second part of the amendment is to say we do not need all these new entities given the fact we already have existing civil rights and privacy controls. I do not want to be misunderstood. It would be very easy to characterize or mischaracterize what we are trying to do by saying these are people who do not care anything about civil rights; these are people who want the agency to run roughshod over American civil rights, and people can get pretty revved up about that very quickly. Nothing could be further from the truth. The folks who are understandably going to put a high priority on protecting civil rights need to balance their legitimate concerns about civil rights with a concern about the lives of American citizens, to balance the legislation that is supposed to help fix the problem in such a way that we do not put so many constraints on our intelligence community that it can't do its job. One of the biggest problems identified, this problem of risk aversion, will be horribly exacerbated if we simply blindly follow the recommendation of those who brought this bill to the floor--and I understand there were a lot of compromises made in order to get unanimous approval out of the committee, but sometimes getting unanimous approval is the wrong goal. Sometimes you need to make tough choices and you need to reject proposals that are offered by people who then agree to vote for the overall bill if they get their amendment in the bill. That is what happened with this bill, and there are too many little amendments that got in which, when added up, are going to create a huge problem with our intelligence community with respect to this issue of risk aversion. I cannot stress strongly enough, and this will be my final point, our goal ought to be to improve our intelligence collection, to improve human intelligence, to improve analysis, to foster a sense within this community that they do not have to just follow the narrow channel of group-think that was criticized so strongly by the 9/11 Commission, that they do not have to feel risk averse, that they can take a chance sometimes because we need people to be imaginative and innovative and think about possibilities that before 9/11 we could not have even dreamed of. I know now some people like to go back and ask: Why did you not think up the fact that people could fly planes into these buildings? Well, one reason was because as soon as one starts thinking about those kinds of things, somebody is going to come down on them like a ton of bricks and say: Get back to your job and stay within the channel here. We do not have time for that kind of fantasizing. You are living in a fantasy world. We have to have people who are willing to ask these tough questions and think in ways that they are not going to get slapped down when they do. The sure recipe, the prescription for that occurring is by piling on layer upon layer of outside groups, ombudsmen, civil rights, privacy divisions, all of these groups that are duplicative of what we already have, to call into question what our agents and analysts are doing. There is simply no need to have so many people performing the same task, which, in any event, does not add to intelligence, but, by its very nature, is designed to restrict intelligence activity. Surely, we can protect civil liberties and privacy without setting up a situation in which it is going to be incredibly difficult for the intelligence community to effectively perform its mission. After all, our chief objective is to make it easier to predict and prevent a terrorist attack, not more difficult. Excessive oversight will result in our intelligence officers being more cautious than they should be, and deter them from taking the risks that may be necessary to keep our country safe. Indeed, an aversion to taking risks, even when they should be taken, already plagues our intelligence community. Time and time again, this has contributed to intelligence failures, most recently, of course, 9/ 11 and the intelligence community's claims about Saddam's weapons of mass destruction. There are numerous reasons for this culture of risk aversion--unclear authorities, legal restrictions, and excessive oversight are among them. The deterioration of our intelligence community's clandestine service offers a good example. According to the 9/11 Commission's report, James Pavitt, the head of the CIA's Directorate of Operations, recalled that covert action had gotten the clandestine service into trouble in the past, and he had no desire to see it happen again. The ``trouble'' he referred to was at least partly the result of the 1973 Church Committee hearings in Congress. Added to that were the restrictive guidelines promulgated by then-CIA Director John Deutch in 1995, which severely limited the ability of CIA case officers to meet with and recruit foreign nationals who may have been involved in dubious activities or have blood on their hands. The end result was out intelligence community's inability to penetrate al-Qaida's command structure. Before 9/11, we had not one source inside that command structure. Unclear authorities, excessive oversight, and burdensome restrictions prevented our people on the ground from being effective. I recognize that privacy and civil liberties are substantively entirely different matters. However, the end result of unnecessary bureaucracy, restrictions, and excessive oversight will be the same. We will cultivate a culture within the intelligence community that makes it less likely that people will be willing to do the jobs we are asking them to do, and more likely that they will want to ``play it safe.'' My amendment would very simply delete sections 126 and 127, which require officers for privacy and civil liberties with the National Intelligence Authority; it would strike section 212, requiring privacy and civil liberties officers with a long list of Executive Branch departments and agencies; and it would modify the Privacy and Civil Liberties Oversight Board established by section 211. The National Intelligence Authority does not need three individuals assigned to the same task. The IG of the National Intelligence Authority will be in place to ensure privacy and civil liberties receive adequate attention and oversight. Similarly, it is redundant to require privacy and civil liberties officers within almost every national-security related department and agency. My amendment would retain the Privacy and Civil Liberties Oversight Board, as the 9/11 Commission recommended. However, it would limit Board's ability to interfere in the activities of relevant departments and agencies. I hope that Members will support this amendment. It follows the 9/11 Commission's recommendations with respect to privacy and civil liberties, and ensures adequate oversight and protections, but does so without hamstringing the community. I urge my colleagues when we debate this amendment further tomorrow to please read the bill, look at the relevant portions of the 9/11 Commission recommendations, look at the testimony of those who have raised this kind of question and ask whether the bill as presented is not a little bit out of balance--I contend a great deal out of balance. I do not cast any aspersions on the people who worked so hard to bring this bill to the Senate floor. There are not enough compliments for the Senator from Maine and the Senator from Connecticut for the hard work they have done and all of the others who have worked so hard on it. This is not in any way meant as personal criticism, but I fear if we do not very carefully analyze this and try to correct it--and remember, that was part of what this was all about: let's get the bill to the floor; we can always make corrections here. This is the time to do it. We have not written a bill on the floor for a long time, but this is too important not to take the time to do right. I urge my colleagues, let us not make the mistake of rushing forward with this, putting a rubberstamp on the committee's bill because we have to do something before we leave on October 8. We will spend years ruing the day we took this kind of action if we are not careful about what we do.

Mr. KYL. Mr. President, I ask unanimous consent that we lay aside the pending business so I may offer an amendment which is at the desk. Before I finish, I want to say this on behalf of Senator Chambliss and myself. My intention is to speak on it now, then come back to it-- pursuant to an agreement that will be worked out with the managers of the bill--sometime early tomorrow afternoon, and people who are opposed to it will have been able to come to the floor and debate it. So we will talk on it right now for a little while, but the purpose for proceeding now is to get it pending so we can later reach an agreement and set it for debate at a later time.

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

Mr. KYL

Mr. KYL. I note, concluding with this point, that Abdul Yasim and Abu Nidal were harbored in Iraq. The Taliban did not directly involve itself in 9/11 or have weapons of mass destruction either, but it harbored people like this and that is one reason we went after the Taliban and Saddam Hussein's regime in Iraq. With regard to the connections between Iraq and al-Qaida, the case is very clear that they were there and the President stands correct, and I hope the Senator from Massachusetts would stand corrected. Finally, as to the suggestion that Iraq was a diversion from succeeding in Afghanistan, that we have not finished the job there, we were very successful in defeating the Taliban and killing a lot of al- Qaida and capturing a lot of al-Qaida in Afghanistan, and in establishing a regime there which will be holding elections. Karzai made it very clear when he came to this country and expressed his appreciation, just as did Prime Minister Allawi of Iraq, to American forces for helping to provide the Afghanis with enough freedom to control their own future. I think there is confusion that the only al- Qaida are on the border between Afghan and Pakistan, and since we have not captured every single one of them, including Osama bin Laden, therefore our activities in Iraq are responsible for this fact. There has been no evidence of that. As a matter of fact, our military commanders make the point it is not true, that Iraq was not a diversion from anything we had to do in Afghanistan where we were very effective and successful. To those who convey this sense of panic, that all is going bad, the opposite of that is not those of us who support the President's policy saying everything is rosy. I do not know that anybody has ever used that phrase. If they have, I would like to see it. The President has said repeatedly that this is a long and difficult war and it is going to require a great deal of perseverance and commitment by the American people. But as contrasted by those who create the sense of panic, the President has a vision and the President's commanders have a strategy. When I saw General Abizaid on television last Sunday, he didn't paint a rosy picture. He painted a very realistic assessment. But he also portrayed a calm confidence that if we can persevere we can prevail. That is what he asked of the American people, to allow the military commanders as well as the Commander in Chief to carry out the vision to defeat the militant Islamic terrorists wherever they are. As I said, they are not only in Afghanistan; they are all over the world including primarily in the Middle East. That is why this war has many fronts. It is not just Afghanistan. We fought simultaneously to try to gain support from Pakistan, Saudi Arabia, the Libyan regime, and from Syria. We did what we did in Afghanistan. We have done what we have done in Iraq. There are still some places to go, but we have also been in Yemen and Sudan, and so on. The bottom line here is you can't isolate one place in the world and say we have to do that first and win every possible goal there before we can do anything else anywhere else. The President has made it clear that by going to one of the chief sources of terrorism, namely Iraq, we can help to win this war. The fact that there was such a connection between the terrorists-- between al-Qaida and the Iraqi regime--is I think validated by the fact that they have been able to so successfully continue to attack Americans and American forces in Iraq. Let's consider that the military commanders just might know what they are talking about, No. 1. No. 2, it does no good to wring our hands and paint a picture of panic. Realistic assessments, absolutely; truth to the American people, absolutely; but leadership that presents a vision and a strategy for winning the wider war on terrorism, that is what the President has provided. That is why I am very proud to support President Bush's efforts in this regard. 3

Mr. KYL. Mr. President, I am going to respond to my colleague from Massachusetts. He has made a pretty vicious attack, I would say, on the President of the United States, contending that he has not leveled with the American people, that he has to begin telling the truth about what is going on in Iraq. These are very serious charges, and I would like to try to respond to them. The Senator from Massachusetts began by a recitation of why, in his view, ``the outlook is so bleak,'' to use his quotation, and why he concluded that ``we're losing the war,'' another quotation from the Senator. I see in the Senator's remarks, and others that I have heard recently, a steely determination to keep hopelessness alive. I do not think that should be the policy of the United States. The President has a much better vision about how to bring the war against militant Islam to a conclusion. There were no constructive alternatives, as my colleagues will recall, from the comments of the Senator from Massachusetts. There were no ideas about how we could do better. It was just an attack on the President and an assertion that we are losing the war, the implications of which were left hanging. When he said the President has this attitude of shooting first and asking questions later, then perhaps we need to recall that we have already been attacked. We did not shoot first. We were attacked viciously on 9/11 and it changed everything about our approach to the war against militant Islam. Secondly, when the Senator from Massachusetts accuses the President of painting a rosy picture and then refers to the National Intelligence Estimate that predicted some pretty dire consequences, he forgets two things. First, President Bush has said repeatedly from the very beginning that this would be a very long and difficult conflict. He has never wavered from that. In fact, he has tried to inspire the American people to continue to persevere in this war. One does not inspire people by wringing their hands and talking about how we are losing the war. Think about what kind of a message that sends to the troops and to the families who are sacrificing, to a mom who gets notice that her young son has been killed in Iraq: We are losing the war. It is hopeless. The outlook is bleak. Well, what are we fighting for? What kind of a message does it send to our allies, who some people say they could convince to come into this conflict, we are losing the war, now please come in? That is not exactly going to persuade them to come into the conflict. Finally, and most importantly, what kind of a message does it send to the enemy to suggest that they are winning and we are losing? Major political figures in this country argue that we are losing the war. It gives confidence to the enemies. That is exactly what they want to hear. Osama bin Laden has said we are the weak horse and he is the strong horse. If we convey that message to him, we increase the possibility that he will continue to think he can win and that he will continue to engage in this fight. We need to break his will. He is testing our will and comments such as this are not helpful to challenging the American people to continue to persevere in this contest. The question is about the American will, and I do not think the comments we heard from the Senator from Massachusetts are going to be effective in helping to sustain that will. I rather think the approach that Winston Churchill took in World War II accentuating the positive, yes, but not ignoring the negative and challenging the British people and the people of the Allies to persevere in that war is the right approach, and that is what President Bush has tried to do. The Senator from Massachusetts has confused a couple of issues. First, he confuses violence in Iraq with less security at home. I do not think we are less secure at home because there is violence in Iraq. In fact, one of the reasons we have not been attacked at home for over 3 years is because we have taken the fight to the enemy and we have largely been successful. We have not lost a battle in this war. There are battles yet to be fought, and the enemy attacks us with guerilla tactics, but we can persevere and win militarily. So I do not think we should confuse the fact that there is violence in Iraq and therefore conclude we are less secure at home. That is simply not true. Secondly, the Senator from Massachusetts alleges that there was no relationship, no connection, between the terrorists and the Saddam Hussein regime. I want to try to debunk this myth right now, so let me quote from the CIA, from the 9/11 Commission, and from George Tenet's assessment since we are going to be quoting the National Intelligence Estimate. This is what the head of the CIA, George Tenet, said: Our understanding of the relationship between Iraq and al- Qaida is evolving and is based on sources of varying reliability. Some of the information we have received comes from detainees, including some of high rank. We have solid reporting of senior level contacts between Iraq and al-Qaida going back a decade. No relationship? According to the CIA, not true. Continuing to quote: Credible information indicates that Iraq and al-Qaida have discussed safe haven and reciprocal nonaggression. Since Operation Enduring Freedom, we have solid evidence of the presence in Iraq of al-Qaida members, including some that have been in Baghdad. We have credible reporting that al-Qaida leaders sought contacts in Iraq who could help them acquire WMD capabilities. The reporting also stated that Iraq has provided training to al-Qaida members in the areas of poisons and gases and making conventional bombs. Iraq's increasing support to extremist Palestinians, coupled with growing indications of a relationship with al- Qaida, suggest that Baghdad's links to terrorists will increase, even absent U.S. military action. No relationship? No contacts? No connection? Read the intelligence reports. What did the 9/11 Commission say? Quoting from Thomas Kean, cochair of the 9/11 Commission: There was no question in our minds that there was a relationship between Iraq and Al Qaeda. Let us get the facts straight. If we are going to come to the Senate floor and charge the President of the United States with misinforming the American people, we need not misinform them ourselves. Quoting further from the 9/11 Commission report: With the Sudanese regime acting as an intermediary, Bin Ladin himself met with senior Iraqi intelligence officers in Khartoum in late 1994 or early 1995. Bin Ladin is said to have asked for space to establish training camps, as well as assistance in procuring weapons, but there is no evidence that Iraq responded to this request . . . [but] the ensuing years saw additional efforts to establish connections. That is from page 61 of the report. From page 66: In March 1998, after Bin Ladin's public fatwa against the United States, two Al Qaeda members reportedly went to Iraq to meet with Iraqi intelligence. In July, an Iraqi delegation traveled to Afghanistan to meet first with the Taliban and then with Bin Ladin. Sources reported that one, or perhaps both, of these meetings was apparently arranged through Bin Ladin's Egyptian deputy, Zawahiri, who had ties of his own to the Iraqis. From page 66: Similar meetings between Iraqi officials and Bin Ladin or his aides may have occurred in 1999 during a period of some reported strains with the Taliban. According to the reporting, Iraqi officials offered Bin Ladin a safe haven in Iraq. Bin Ladin declined, apparently judging that his circumstance in Afghanistan remained more favorable than the Iraqi alternative. The reports describe friendly contacts and indicates some common themes in both sides' hatred of the United States. But to date we have seen no evidence that these or the earlier contacts ever developed into a collaborative operational relationship. . . . That is the critical distinction. We have to be careful of our language, especially when we are accusing the President of the United States of misleading the American people. Our language matters. The President never alleged an operational link or that Saddam Hussein helped to plan the 9/11 attack on the United States, but there is plenty of evidence of connections between bin Laden, al-Qaida, other terrorists and Iraq and Saddam Hussein. The Intelligence Committee report in July of this year reported: [F]rom 1996 to 2003, the Iraqi Intelligence Service ``focused its terrorist activities on Western interests, particularly against the U.S. and Israel. They go on to quote the letter from George Tenet that I quoted before. [A]ccording to a CIA report called Iraqi Support for Terrorism, ``the general pattern that emerges is one of al Qaeda's enduring interest in acquiring chemical, biological, radiological and nuclear (CBRN) expertise from Iraq.'' This is exactly what Senator McCain talked about a few weeks ago, what the President has talked about, what the Vice President has talked about, our concern of this relationship that would some day, if we did not act against Iraq, blossom into fullblooded support, full-blown support from Iraq to al-Qaida. Finally: [T]he Iraqi regime ``certainly'' had knowledge that Abu Musab al Zarqawi--described in Iraqi Support for Terrorism as ``a senior al Qaeda terrorist planner''--was operating in Baghdad and northern Iraq. I ask unanimous consent that a New York Times article of June 25, 2004, which further makes this point, be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the following letter be printed in the Record. The letter expresses the strong support of the Fraternal Order of Police for S. 2760, the Public Safety Officers' Defense Act.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the column ``An All-Out War on Proliferation'' by Undersecretary of State John Bolton, which appeared in Tuesday's Financial Times of London, be printed in the Record. This piece clearly articulates the Bush administration's aggressive approach to stopping the proliferation of weapons of mass destruction. The success of U.S.-led nonproliferation and counterproliferation efforts over the last 4 years shows strong U.S. leadership on a global scale. It is also an illustration of just what we are able to accomplish through U.S.-led multilateral, concrete action, rather than through inefficient bureaucracies and toothless treaties. I congratulate Undersecretary Bolton for his outstanding piece, and I strongly recommend it to my colleagues.

Mr. KYL

Mr. KYL. Mr. President, I wish to remark on something Senator Lieberman and I had been hoping to launch and then discuss in a little more detail, a subject on all of our minds, and that is the kind of challenge we face as the leading country in the world in this current war on terrorism. I am very pleased that Senator Lieberman has joined with me and others, or I with him--I think he was the first and I was the second, to put it that way, to correct the record--in a reinstitution of the Committee on Present Danger. This is the third iteration of that committee, twice begun during the cold war--during the first stages of the cold war and then the later stages of the cold war--to ensure that America understood and was willing to face the threat of Communists and communism in a way that would result ultimately in victory. There were times in the beginning of the war where I think there was an inadequate appreciation of the nature of that threat and how long a struggle it would be and how we prepared and how Americans would have to persevere in order to win that cold war, and then at a midpoint in the war when it seemed as if detente and acceptance of a permanent status of communism was really the only way the United States could ensure we would have peace in the future began to creep into our policy in so many ways that, again, the committee was formed and, under new leadership, said there is an evil in the world--communism--and we cannot coexist in it. In the end, it will have to face its demise, and we will have to win. President Reagan embodied that spirit in calling the Soviet Union ``the evil empire,'' in both saying and doing that which enabled people to appreciate there could be a winner and a loser against communism, that it was a failed idea, and that we in the United States and the West generally could defeat it, and we did. Along comes the war against the Islamic radicals who have committed terrorism across the globe, most recently in Russia. But on 9/11, all of the previous attacks of those terrorists who were brought into focus had been treated as a matter of law enforcement. On 9/11, President Bush understood that something much greater was at stake, an existential threat to the United States specifically and to our civilization generally that had to be met with firm resolve because the enemy was not content to seek some kind of peace negotiations or extract some temporary commitments, but rather by its own declarations was in a fight to the finish: Either they win or we win; either they die or we die. This existential threat would have to be faced by a nation that was willing to engage in the fight as long as it took with whatever it took, regardless of the costs, because nothing more or less than our survival was at stake. So this third iteration of the Committee on Present Danger was formed. Senator Lieberman and I have been honored to be the honorary chairmen of this effort, to remind Americans and to educate the rest of the world to the seriousness of this threat, to the fact that this is a war, and in war everyone must make sacrifices. We send brave young men and women to do military missions that could cost their lives. A couple of my colleagues were on the floor earlier lamenting the cost of this war and the casualties among those who have served. Indeed, each one of us grieves for each one of those casualties, and the families and friends of all involved. But the President has reminded us that in this case our security is not free and that sacrifices will have to be made. The point of this committee is to remind everyone what is at stake, how difficult the battle will be, how, although we Americans are generally very impatient people who see a problem, want to get on it, solve it and move on, in this case, as with other wars, we have to be in it until the end, whatever the cost. In this case, like the cold war specifically, it is probably going to be a long conflict that will test our patience and our resolve, but that in the end ironically it is patience and resolve demonstrated to the enemy that are most likely to create the condition for our victory. In this case, being in some respects a battle of ideas and resolve, if the enemy views us to be a weak horse, as Osama bin Laden has called us, then they will be emboldened to continue the battle and to bring it to the United States. On the other hand, if they view us as a strong horse, then they may appreciate the fact that in the end they cannot prevail. That will, more than anything else, permit us to win this war. So with Senator Lieberman, I point out to my colleagues that in the ensuing weeks we will be engaged in this discussion in an effort to lay out all of the facts about the enemy that we face and the kind of war that we are going to have to be prepared to fight and the sacrifice that is going to be required not just of the men and women whom we place in harm's way for their military mission but the people involved in all of the other contexts of this battle, whether it be military, intelligence, law enforcement, and even right at home. There are many things Americans can do to help win this war. My last point is simply this: The best thing that Americans can do to win this war is to demonstrate our resolve not only to the enemy but also to our friends and allies, and most importantly to the people in harm's way, our men and women in the military and others who we have put on the front lines of the battle, to demonstrate to them that as a nation, while we may have some disagreements about the specifics of how we proceed with this conflict, we are united as a people in believing one main thing, and that is that the battle is worth it. So that whatever casualties do exist no one ever need be in doubt, be it the families, the friends, the colleagues in arms, or the service men and women, that their sacrifice was worth the price, whatever that price is. If we ever begin to create the idea that this is not a war worth winning, that it is not a war worth sacrifice by Americans, then we will have done a great disservice not only to our overall war effort, because the enemy will surely pick up those signals, but also to the families and to the people in the military who are laying their lives on the line. They must continue to know that all of us believe this is a sacrifice worth making and that their sacrifice will not have been in vain. I hope as time goes on, in debating the nuances of how we proceed with this conflict, all of my colleagues, Republicans and Democrats and everyone else in this great Nation, will understand the importance of reaffirming to those we have put in harm's way that whatever sacrifice they make, it is worth the sacrifice for the security of the people back home, for the opportunities they are creating for others and for the defeat of this insidious foe. That is something we will be talking about, especially as we move into the final phase of this legislative session and fund our homeland security effort, reform our intelligence community and our congressional oversight of that community, and do whatever we can do right now to help win this war, that we ensure that all Americans understand how they can contribute to the victory. Right now their biggest contribution can be to support the effort so the people who we have sent in harm's way will appreciate that their sacrifices, whatever they may be, are not in vain.

Mr. KYL

Mr. KYL. Mr. President, while the distinguished Senator from Connecticut is still on the floor of the Senate, I commend him for his remarks. The real success, of course, is due to NASCAR. I hope the Senator appreciates that. In any event, I share his sentiments.

Mr. KYL

Mr. KYL. Mr. President, I am pleased to join many of my colleagues in supporting this landmark United States-Australia Free Trade Agreement, FTA. I say ``landmark'' because it is both historic in that it underscores the invaluable relationship between the United States and Australia--a relationship that is built on friendship, loyalty, and mutual support for economic and political freedoms--but also because it breaks new ground for an FTA. For the first time, a free trade agreement negotiated by the United States has addressed the worldwide problem of prescription drug price controls. The United States is virtually the only developed nation that does not regulate pharmaceutical prices. American consumers, who finance the bulk of research and development for the entire world, should be very pleased that the U.S. Government has begun broaching the subject with other developed countries. Because some of my colleagues have raised concerns about the pharmaceutical section, I want to briefly review what the FTA does, and what it does not do, in the area of pharmaceuticals. First, it is important to note that Americans will only benefit from the drug provisions and, in truth, so will Australians. The FTA makes suitable progress on addressing Australia's drug price controls; the U.S. did not have to make any concessions in exchange. I say suitable progress because, while the agreement makes important progress, Australia does not embrace a free market for drug pricing with the accord. I joined a number of my colleagues on a Congressional delegation trip to Australia at the beginning of the year. During our meetings with Australian government officials we had the opportunity to debate the Australian drug pricing system. I believe the agreement we will approve today was possible, in part, because of those discussions. In the FTA, the U.S. and Australia state that they ``recognize'' the importance of innovative pharmaceuticals in delivering high-quality health care. Incorporated in this, both countries agree to set pharmaceutical prices based on the ``objectively demonstrated therapeutic significance of the pharmaceutical.'' In practice, the U.S. Government is already in compliance with this provision because our Government does not ``mandate'' prices; certain Government agencies may negotiate prices with drug companies, but by and large, we allow the free market, including negotiations between drug companies, and insurance companies, to determine prices. While Australia could not take the next step and price drugs accordingly or adopt market-pricing, this is still an important first step. If the U.S. can convince our friends and trading partners to agree that innovative pharmaceuticals benefit everyone and that R&D is both costly and necessary to our health, then we can begin arguing for better burden sharing of R&D costs. I want to talk for a moment about price controls and the effect they have on research and development. Some of my colleagues argue that the U.S. should adopt prescription drug price controls indirectly by importing price-controlled drugs from other countries as a means of reducing drug costs for American consumers. I believe this would be a terrible mistake for a number of reasons, one of which is the effect it would have on R&D. To date, the U.S. has seen private pharmaceutical research move to the U.S. from Europe specifically because of price controls. Companies are able to recoup their R&D costs in the U.S. market and are consequently more likely to develop their new, breakthrough pharmaceuticals in the U.S. Americans like having the R&D performed in our country--we like the quality jobs it brings and we like having first access to new products--but we do not like the fact that Americans pay for almost all of the R&D for the world. Americans know this is simply not fair. If the U.S. adopts price controls, we will see the development of new, innovative pharmaceuticals drop off because there will be no one left to fund R&D. Rather, we must begin persuading other developed, market economies to begin shouldering their share of the burden. That is why the fact that the agreement recognizes the importance of R&D is so critical. The FTA also commits Australia to make both transparency and timeliness improvements to their Pharmaceutical Benefits Scheme, PBS, that are intended to make the listing process for new pharmaceuticals more open and fair. The PBS is the system by which the Australian government sets price controls and provides subsidies for nearly all drugs sold in Australia. To improve transparency, Australia agrees to establish an independent review board to hear appeals of PBS listing decisions. This will enhance transparency and accountability in the operation of the PBS. Companies will gain a better idea of how and why decisions were made regarding their drug submissions. Prior to this agreement, U.S. drug companies would submit information on a new drug for listing by the PBS, the PBS would set the price, and the company would be left with a ``take it or leave it'' situation. Some of my colleagues have asked whether the U.S. will have to establish a similar independent review board, but the general counsel of the USTR clarified for the Senate Finance Committee, during the July 14, 2004 consideration of the FTA, that because our processes are already open and transparent, no independent review board is required for any U.S. Government purchases of pharmaceuticals, by the Veterans' Administration, for example). Finally, the FTA establishes a ``medicines working group'' that will provide a forum for continued dialogue between the United States and Australia on pharmaceutical issues. During our meetings in Australia we suggested such a working group as a way to guarantee that, if our pricing concerns could not be resolved in the FTA, we could continue to discuss the issue. The subject matters that the group might consider are not limited by the agreement, and therefore can be expected to include the importance of market-based pricing. Now, to address the concerns of my colleagues. First, the FTA does not ban the importation of price-controlled drugs. As my colleagues know, it is already illegal for individuals to import prescription drugs into the United States. Now, Congress may vote to amend U.S. law to allow individuals to import prescription drugs from foreign countries. I would strongly oppose this, but we may do it. This agreement would in no way prohibit Congress from changing U.S. law to allow drug importation. The new U.S. law would supercede the agreement and would take effect despite any inconsistencies with the agreement. Also as some of my colleagues know, Australian law prohibits the export from Australia of drugs that are subsidized by the Australian government. This only makes sense, from the perspective of Australian taxpayers. Australian law does allow nonsubsidized drugs to be exported; but in reality, most of the drugs marketed and sold in Australia are under the subsidized system. As a consequence, Australia is not likely to be a significant exporter of low-priced drugs to U.S. consumers, should Congress allow drug importation, regardless of what this FTA says. Another charge raised by some of my colleagues is that the patent protections in the FTA will in some way prohibit drug importation. The patent protections included in the FTA merely state that both nations agree to protect the patent owners' rights to determine how, by contract or other means, their patent is used by a licensed third party. It is not specific to pharmaceuticals, nor is it unique to this FTA; other U.S. trade agreements include similar language that merely reiterates and is consistent with existing U.S. patent laws. That is, under U.S. law patent holders already have the right through contracts and by other means to limit the use of their products. If an unscrupulous person wanted to steal a U.S. company's drug patent, illegally make the drug, and sell it into the United States, it would be a violation of U.S. law, regardless of whether the U.S. entered into this FTA or not. I urge all of my colleagues to review the facts if they have concerns with the drug provisions of this FTA because this agreement will not increase drug prices in the U.S., it will not increase drug prices in Australia, and it will not prevent the U.S. from changing our laws in any way. It will, however, begin an important dialogue with our Australian friends about the importance of R&D and of paying for R&D; this is an important first step. I urge all of my colleagues to support the agreement.

Mr. KYL

Mr. KYL. Mr. President, the Senator from Alabama is correct. The Federal Constitution trumps State constitutions. Even if the people of a State amend their own State constitution, were the Supreme Court to declare that same-sex marriages are required by the equal protection or the due process clause of the U.S. Constitution, that would be the supreme law of the land, overriding any other Federal law, State law, or State constitution.

Mr. KYL. Mr. President, the Senator from Alabama is also an extraordinarily fine lawyer in his own right. Of course, the answer is yes. Once the Supreme Court has spoken, and there is language in this Lawrence case that suggests to many that the Court would be inclined to rule in that fashion, then the Court has just enunciated the supreme law of the land and no State constitutional provision or Federal law in any way could attempt to override that. That would be the law of the land.

Mr. KYL. I would be happy to yield. I actually give up the floor.

Mr. KYL. Mr. President, there is one area I agree with the proponents of same-sex marriage on, and that is, the country is going to go one way or the other. You cannot survive a situation in which some States recognize certain benefits, other States recognize other benefits, other States don't recognize any, others recognize same-sex marriages, others, civil unions, and so forth. He makes the point that it has to ultimately be all or nothing. I don't see how on that point he is wrong because people in this country move around. I cited the case of the bankruptcy petition filed by the Canadian couple, but it could have just as easily been a married couple in Oregon and moving to Washington. The fact is disputes will arise all over the country in courts of States that didn't necessarily confront the question but will have to confront some element of it. When two people present themselves as having been lawfully married in another State and they have some dispute between them, the court of my State, for example, isn't going to be able to avoid the issue and will have to decide one way or other. We are going to end up, I fear, in the situation in which a definition of marriage has many different meanings all across the country. Something as fundamental as that--as I said, the one thing I agree with the proponents of same-sex marriage on--cannot stand. You have to either define it one way or the other for our society to function--just to function. It becomes a question of, A, what that definition should be--and that is why I have a disagreement with those folks--and, B, who makes the decision. My primary point is that the people of the country should be making the decision, not just a few lawyers and judges. The best way for people to have a voice in this is by the constitutional process in which they are directly and indirectly involved through the Senate, through the House, and through their own State legislatures.

Mr. KYL. Mr. President, I think the Senator from Pennsylvania is exactly correct. I would like to argue that the Defense of Marriage Act is constitutional, but I share the same concerns that have been expressed by others, that the Court will find it unconstitutional. But in either result, this challenge will continue in the State courts. We have the precedent of Massachusetts, and a very clear strategy that the lawyers on the other side have outlined. They have not tried to hide their intentions. They have been very forthright about their intentions of getting State courts to declare State laws and the State constitutions to require same-sex marriage, just as they did in the State of Massachusetts. These 35 lawsuits in 11 different States--at least some of them--will argue this precise point. It is quite possible that on the same basis that the Massachusetts Supreme Court decided that its due process and equal protection language required the recognition of same-sex marriages, that identical language or almost identical language in all of the State constitutions--identical also, by the way, to the Federal Constitution--would require that other States like Massachusetts recognize same-sex marriage. So it won't matter that DOMA says that one State doesn't have to recognize the marriages of another if State by State the courts decide that in those respective States the law requires or the Constitution requires otherwise.

Mr. KYL. I am happy to yield.

Mr. KYL. Mr. President, today I rise in support of S. J. Res. 40, the Federal marriage amendment to the U.S. Constitution. I do so with conviction that this course is the right one, but with considerable frustration that we have come to this point as a nation. This constitutional amendment, in my view, should not be necessary. The core definition of Western civilization's most stable and important social institution, traditional marriage, should not be jeopardized by litigation and court decisions. Activist trial lawyers should not be filing lawsuits asking courts to change the basic rules of marriage for all society. Judges should not be denouncing traditional marriages as a stain on the Constitution that must be washed away. But that is where we are: Confronting a coordinated, well- funded, and persistent campaign in the courts to undermine marriage. After careful study, I have come to the conclusion that the only way to protect traditional marriage from these undemocratic forces is to pursue a constitutional amendment that protects traditional marriage. Only through such a constitutional amendment process will the American people genuinely have the opportunity to speak out and guarantee that traditional marriage is protected. I wish to spend a few moments explaining why I think this issue is so important. In short, traditional marriage--marriage as the union between a man and a woman--exists, first and foremost, as the best environment for the protection and nurturing of children. Traditional families are where we hope the children will be born and raised, and where we expect them to receive their values. And we hope these things for a good reason. As one social scientist who testified before the Finance Committee earlier this year said, children on average experience the highest levels of overall well-being in the context of healthy marital relationships. This testimony is consistent with an overwhelming body of social science testimony received by the Finance, Health, Judiciary, and Commerce Committees earlier this year. If we want our Nation's children to do well, we need to do what we can to ensure they grow up with mothers and fathers. So we need to protect the place where mothers and fathers properly unite--marriage. I believe traditional marriage is an institution worth saving, and I believe we send a very important message to our children when we stand up for the institution of marriage. We tell them that marriage matters; that traditional family life is a thing to be honored, valued, and protected. We tell them marriage is the best environment for raising children, and we tell them every child deserves a mother and a father. We point them to the ideal and that the radical redefinition of marriage through the court threatens this ideal. We cannot strip marriage of its core--that it be the union of a man and woman--and expect the institution to survive, as we have come to know it. It is because I feel so strongly about preserving and even encouraging a healthy marriage culture that I have been so disturbed by the legal developments our Nation has witnessed over the past 10 years. We are on the Senate floor discussing an amendment to the Constitution because activist lawyers persist in filing lawsuits to force States to redefine marriage to include same-sex couples. These activists are dodging the will of the American people who overwhelmingly oppose a redefinition of marriage and instead have been asking judges to rewrite the marriage laws. More than a year ago, I asked the staff of the Republican Policy Committee, which I am privileged to chair, to analyze the court campaign of these activists and to speculate on their prospects for success. We concluded at that time the Massachusetts high court would likely find traditional marriage unconstitutional, and that a number of lawsuits attacking marriage would begin to expand dramatically. While some quarreled with those predictions, unfortunately they have proven to be 100 percent correct. I wish to summarize briefly these legal developments that brought us to the point we are. There is in this country a collection of activist lawyers who genuinely and sincerely believe marriage should be redesigned so couples of the same sex could marry. Groups such as the ACLU, Lambda Legal, and Gay and Lesbian Advocates and Defenders, GLAD, and others have frankly explained their strategy. Their goal is to use the courts to force the entire Nation to adopt same-sex marriage. They understand they cannot do it through the democratic process convincing people of the wisdom of their position, but must rather succeed in convincing judges to overturn our long-time understanding of the meaning of marriage. They saw their first great victory in Vermont in 1999. In response to a suit by the ACLU and other activist groups, the Vermont State Supreme Court ordered the legislature to recognize same-sex marriage or to create some form of civil union that was exactly like marriage. Vermont citizens at the time opposed both same-sex marriages and civil unions, but the court mandate was clear: Legislators must create same-sex marriage or some form of same-sex civil union or the court would do it for them. The legislators chose civil unions in the face of the court's dictate, but it can hardly be said that they acted in accordance with the democratic process. No, this was ruled by lawsuit, not by legislation. These activist lawyers who had succeeded in Vermont quickly turned to new States, this time aiming for a complete transformation of the marriage laws. It is true that homosexual couples had gained all the rights and benefits available under Vermont law as married couples. The same-sex marriage activists did not just want rights and benefits, they wanted to redefine marriage itself to change the cultural norms that have characterized this institution of man and woman for ages. These groups acted carefully. They put most of their efforts into a new lawsuit in Massachusetts. The people of Massachusetts opposed same- sex marriage, and their legislators would never change the law to allow it. But the activists were not interested in a democratic solution. They knew they could not convince many millions of citizens to undermine traditional marriage, so they decided to focus on just four people, the majority of the supreme court of the State. They did what too many Americans do nowadays, they filed a lawsuit. The result was a resounding defeat for traditional marriage and the people of Massachusetts who continue to oppose same-sex marriage in their State. In November 2003, a 4-to-3 majority of the Massachusetts Supreme Judicial Court ruled in Goodridge v. Massachusetts Department of Health that the State constitution required the State to recognize same-sex marriages. Of course, the State constitution said no such thing. It contained the same basic equal protection and due process clauses that exist in most State constitutions and in our U.S. Constitution. These clauses had never been understood to require the rewriting of marriage itself, but that is what the four judges determined. As breathtaking as this decision was, even more stunning was the disdain that these four judges showed for traditional marriage and its supporters. The court wrote that there was ``no rational reason'' to preserve traditional marriage laws; that support for traditional marriage was rooted in little more than ``persistent prejudices'' and that the several-thousand-year-old institution of marriage was little more than ``an evolving paradigm'' that could be redrafted and rewritten by the courts whenever they desired. One judge even scoffed at what he called the ``mantra of tradition.'' In a followup opinion reaffirming and expanding the earlier decision a few months later, the same four justices even said that the marriage laws of Massachusetts were ``a stain on the Constitution,'' and that the stain must be eradicated by the court. Incredibly, the court even suggested that it would be better to abolish civil marriage altogether than preserve it in its traditional form. On May 17 of this year, the Goodridge decision took effect, and the State began issuing same-sex marriage licenses in Massachusetts. Many same-sex couples from other States traveled to Massachusetts and then returned back to their own States. While the Massachusetts Legislature has given preliminary approval to a State constitutional amendment to return marriage to its traditional meaning, it will be more than 2 years before the citizens can even vote on that amendment. In the meantime, for hundreds of people who have traveled to Massachusetts from all over the country, same-sex marriage is a reality. So what happens next? Is it realistic to believe that same-sex marriage can be isolated to Massachusetts? Will the activist lawyers who brought that suit continue to press their claims on behalf of these ``couples'' who return to their States of residence? The answer is clear. The activist groups already are seeking to bypass the legislative process and impose their agenda through courts in other States. There are now more than 35 lawsuits pending in 11 States across our Nation in which States' marriage laws have been challenged as unconstitutional, States such as California, Florida, Indiana, Maryland, Nebraska, New Jersey, New Mexico, New York, Oregon, Washington, and West Virginia. Many of these lawsuits are brought by the same lawyers who filed suits in Vermont and Massachusetts, activists from the ACLU, LAMBDA Legal, and GLAD in particular. In fact, the lawsuit in Maryland was filed only last week by the same legal team at the ACLU that is managing lawsuits in New Jersey and elsewhere. Many more lawsuits surely will follow. As I said, the activist court strategy is no secret. The ACLU, LAMBDA Legal, a group calling itself Freedom to Marry, are very open about their hopes of imposing same-sex marriage through the courts. Let us look at some of the lawsuits we can expect. First, these activists will file more suits challenging State marriage laws the same way they did in Massachusetts and are doing in 11 other States today. Second, there will be lawsuits seeking to strike down the Defense of Marriage Act so that same-sex couples can get access to Federal benefits such as tax filing status, Social Security benefits from same- sex partners, and many of the other benefits or rights that the Federal Government grants to married spouses. Already, for example, there is a lawsuit pending in Florida that directly claims that DOMA is unconstitutional. Third, these activists will file lawsuits trying to force other States to recognize same-sex marriages in Massachusetts and any other place where they can convince judges to change the marriage laws against the people's will. Such a lawsuit currently is pending in Washington State, where a same-sex couple received a marriage license in Oregon and now insists that Washington must recognize that marriage, despite clear State law to the contrary. Finally, there will be many other lawsuits that cannot be anticipated that will happen as same-sex married couples move from State to State, as many Americans nowadays do. These couples will try to get divorced when marriages fail. They will try to execute and enforce wills when one of them dies. They will have all kinds of run-of-the-mill business disputes as happens in other situations, and courts will struggle to figure out how to treat their legal relationships when these disputes arise. Those struggles will take on a constitutional dimension. For example, two women who received a marriage license in Canada later decided to declare bankruptcy in Washington State. They filed their petition jointly as though they were married. Because all bankruptcies are filed in Federal court pursuant to Federal law, the Defense of Marriage Act is implicated. The bankruptcy trustee has objected to their joint petition, citing DOMA's provision that for the purposes of all Federal law, marriage is the union of a man and a woman. The bankruptcy petitioners now argue that DOMA itself is unconstitutional and that the bankruptcy court must recognize the Canadian same-sex marriage. Thus, a simple bankruptcy petition has taken on constitutional dimensions. Cases such as this will proliferate, some filed by activists and some filed by citizens just trying to live their lives, as appears to be the case in the bankruptcy petition in Washington State. The result will be tremendous confusion in the courts throughout the Nation, as some States recognize same-sex marriage for some purposes while other States recognize them only for other purposes. As these lawsuits progress, it will be the courts, not the people, that make the decisions on whether same-sex marriage will spread throughout the entire Nation. In the not too distant future, the legal activists who are managing this attack on traditional marriage laws will decide that they are ready for the big case, a case before the U.S. Supreme Court. After wreaking havoc on traditional marriage throughout the Nation, these activists will tell the Supreme Court that the confusion in the States demands a national solution. They will argue, not unpersuasively, that we are one Nation, that we cannot long function with such fundamentally inconsistent understandings of marriage. When that day comes, when the U.S. Supreme Court is presented with the opportunity to rule traditional marriage laws unconstitutional, it is very possible that the Court will side not with the oft-surveyed views of the American people but rather will find a constitutional reason to say the people have been wrong all this time. Legal and cultural confusion cannot long endure on this question. When a case reaches the Supreme Court, it most likely will craft a national solution. What the same-sex marriage activists expect and hope for is exactly the result that concerns me. Once the Court has spoken, while there surely will be great public outcry if contrary to public opinion, our history shows it is very difficult to change a Supreme Court decision by constitutional amendment. The only way the American people will ever have a voice in this matter is if Congress sends to the States for ratification a constitutional amendment defining and protecting traditional marriage. Federal DOMA, which has already been challenged, could easily be struck down by the courts. Marriage laws in the States likely will be struck down just as happened in Massachusetts. No Federal law, no Federal regulation, no State law, no State constitutional amendment, can prevent this from happening. The only solution is an amendment to the Constitution and the only question is when to start the process. The more time that elapses with conflicting State law and same-sex couples seeking to have their marriages recognized in different States, the more our society will be conflicted and the more lawyers and judges will be making the decisions. The constitutional process is the most democratic, the most grassroots, the most respectful process available for the establishment of national policy. A constitutional amendment requires the support of two-thirds of both Houses of Congress. Then it requires the support of the legislatures of three-fourths of the States of the Union. Then, and only then, can the amendment become effective. This is, as it should be, a very high hurdle. But it is a high hurdle that guarantees that the American people have a full and complete opportunity to speak to the issue, that they can express their views to their Senators, to their Congressmen, and to their State legislators. It takes time, but in the end, as opposed to court decisions, if a constitutional amendment passes, we know that the American people want it. Look at the proposed constitutional amendment that is before us and examine what it will do. It is on the chart directly behind me. The first sentence reads: Marriage in the United States shall consist only of the union of a man and a woman. The sentence is straightforward. It provides a common definition of marriage throughout the United States, one man and one woman. It guarantees that the central definition of marriage is preserved throughout our country. It protects the American people who overwhelmingly believe traditional marriage should survive against those who would undermine it. We are one nation. While we have a wide variation in many thousands of laws among different jurisdictions, for the central, core issues in the way we organize our society, we have common views and common laws. That is why, as a nation, we denied one State admission into the Union until it outlawed polygamy. We recognized that marriage was only between one man and one woman, and we would not even let that State enter the Union if it did not agree with that basic, core value. This first sentence just reaffirms what has long been our national policy and ensures that no court can say otherwise. Now, turning to the second sentence, it reads. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman. This sentence simply ensures that only the people or their elected representatives, not judges, can decide whether to allow marriage or its legal incidents can be conferred on people. This would prevent what happened in Vermont. The State supreme court hijacked the democratic process and coerced the legislature to create same-sex civil unions. The people didn't want it but the court decreed it. The second sentence of this amendment would prevent that kind of result. The reason to add the second sentence, thus, would be to ensure no court would be able to construe the State or Federal constitution to require the creation of same-sex marriage or any institution or arrangement containing the incidents or benefits that derive from marriage itself. In other words, courts will not be able to create a right to civil unions based on the equal protection or due process clauses of the Constitution. They will not be able to twist the constitutional language, in other words, to serve these narrow policy goals. However, the marriage amendment in no way bars or bans these kinds of special civil union or domestic partnership arrangements, as long as they are enacted through the legislative process. The marriage amendment preserves our current State organized regime by protecting the rights of citizens to act in their State legislatures to provide whatever benefits to same-sex couples that they should choose. Those benefits could be narrow, granting special inheritance rights, for example, or they could be broad, a full civil union law, for example. In another example the legislatures of California and New Jersey have recently created arrangements they call domestic partnerships, that grant many of the benefits of marriage to same-sex couples. Let me say again, the legislatures of those States passed those laws. Benefits were granted through the democratic process. Nothing in the marriage amendment prevents the citizens of a State from acting through their regular legislative process to grant benefits to same-sex couples in that State. So if a State wanted to create marriage-like ``civil unions,'' it could still do so. A legislature's only constraint is it could not create same-sex marriage. Before I close, I would like to say a few words to address a concern about the amendment that I have heard expressed by some of my Senate colleagues. Some claim the question of same-sex marriage can be handled effectively on a State-by-State basis. Some, including people I respect very much, have told me if Massachusetts wants to have same-sex marriage, it should be able to do so and that Arizonans should not care. They argue that because our States tend to manage most family law matters, there is no reason to place this issue in the U.S. Constitution. They think of the issue as a thing of the distant future, something that we need not bother with. ``Let Massachusetts worry it,'' in effect. I respect those who make this argument, but I strongly disagree with the notion that Congress can punt on the protection of marriage. The problem, it seems to me, with this line of thinking is that it assumes--in perfectly good faith, I am sure--a world that simply does not exist. The citizens of each State are not being permitted to decide this question. We should all sympathize with the citizens of Massachusetts who have been forced to see marriage in their State redefined and undermined, without the vote of the legislature or the citizens of that State. Massachusetts is only the beginning. We see from the 35-plus lawsuits in 11 different States that the activists will continue to campaign in the courts. The lawyers who are championing this cause are not going to permit a State-by-State democratic solution. States rights implies not the courts but the people making the decisions. The most prominent leader of the same-sex marriage movement, Evan Wolfson, who helped file the lawsuits in Vermont and Massachusetts and elsewhere, has candidly made the point. He scoffs at those who think the Nation can tolerate fundamentally different conceptions of marriage on a State-by-State basis. He understands that it is all or nothing. As he says on his Web site: America is one country, not 50 separate kingdoms. If you're married you're married. In other words, people move around so much in this Nation that we cannot long endure a scenario in which some marriages disappear at the State line. The legal, social, and cultural complications are simply too great. The question of whether traditional marriage is to survive must ultimately be decided for the entire Nation. In conclusion, the question is, Who decides? Will it be judges, scattered across the land and ultimately over in the Supreme Court? Or will it be the American people, through the constitutional amendment process? This is not some idle question of political theory. The process determines the result. If courts make the decision, they will redefine marriage for every State. If the people can decide, I have confidence they will stand up for marriage. So, in conclusion, I call on my colleagues not to stand in the way of the people's right to speak. Let the American people make the ultimate decision as to whether we will jettison thousands of years of history and reinvent marriage or whether we will stand by the institution that we all rely upon so much for the future of our children. I will say it again. This question cannot and will not ever be decided on a State-by-State basis. Either we will preserve traditional marriage in this Nation or we will see it redefined everywhere. The vote we will have in this Chamber is the first step, and I hope my colleagues will join me in making the right one.

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

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that Ryan Newburn, an intern with the Senate Subcommittee on Terrorism, be granted the privilege of the floor.

Mr. KYL

Mr. KYL. Mr. President, it has been interesting to hear some of our Democratic colleagues this morning make the charge that the Republican leadership is somehow diverting attention from the real problems of the day by scheduling a vote on an issue which, when I was back home this last weekend, was certainly on the minds of a lot of my constituents, and that is this question of whether judges in America are going to redefine what they have always understood to be their definition of marriage. To take 1 day, or perhaps as much as 3 days, to debate that issue and get that issue resolved in the Senate does not seem to me to be too much to ask, in terms of conducting our business. With respect to the claim that it is diverting us from attention to the economic issues that are of most concern to Americans, I have two responses. First, Americans seem to be concerned about more than one thing. They are concerned about raising their families; they are concerned about a good home for their children; they are concerned about a good economic future for their children. All of these are wrapped up in the totality of the things that were expressed to me over this Fourth of July break. I don't think it is either fair or accurate to say there is only one thing Americans are concerned about and that is their economic future. But to the extent that is an issue and it becomes an issue in the Presidential campaign this year, I think some facts are worth pointing out. I realize that sometimes facts get in the way of arguments. One of the main arguments of our colleagues on the other side of the aisle is that this is a bad economy. The Democratic Presidential candidate has talked about the Depression and the worst economy since--I don't know, Hoover, I guess. But the facts belie that claim. So perhaps this morning we should take a little time to discuss some facts, some actual statistics, some reality about the economy and not just the economy in general but the economy as it affects the average American. On the question of jobs, one of the criticisms has been--originally the idea was there was no economic recovery. Then the economic recovery became undeniable. Then the claim was it is a recovery in every sense except the creation of jobs. Then for several months in a row we began creating record numbers of jobs. Then the argument became: But they are not really good jobs. There are some people you can never please, of course. In an election year, the party that is on the ``out'' has to criticize the party that is on the ``in.'' It is just that it is becoming harder and harder to criticize the Republicans because the economy has rebounded so well, largely because of policies that have been pursued by the Bush administration. Let's examine the specific claim about employment and about wages and about what kinds of jobs Americans have and how the economic recovery is positively impacting the average American. Look at the June employment figures, which are the latest numbers we have. They demonstrate several things. First, the quality of new jobs is rising. Nearly 80 percent of the new jobs created in June were in industry categories that pay an average hourly rate in excess of the overall average hourly rate in the private sector. So these new jobs in manufacturing pay a higher wage than the average. The inflation-adjusted average hourly earnings have increased 2.224 percent during the first 3.5 years of the Bush administration, compared with only a .13-percent increase during the same period of the first Clinton administration. People say, What about disposable income? Not just wages but disposable income. Per capita aftertax disposable income, adjusted for inflation, has increased 7.1 percent, since President Bush took office, well above the 5.2-percent increase during the same period of the first Clinton administration. It doesn't much matter how you look at it, statistics in every respect are superior to the Clinton administration statistics. They represent economic growth. They represent real return in terms of wages and inflation-adjusted wages for the average American as well as the American working in manufacturing. Since the start of the Bush administration, full-time employment has averaged 82.56 percent, nearly a full percentage point higher than full-time employment during the same period of the first Clinton administration. So, again, no matter what comparison you make, Americans individually are better off today. It is not just a matter of the economy performing better, but they are individually better off today in terms of employment, in terms of jobs, in terms of earnings. In the past year, the number of full-time positions has increased by nearly 1.3 million. I mention that because some make the argument that some of these are called ``McJobs''--a play on McDonald's--that they are just hamburger-flipping kinds of jobs. No. We are talking about full-time positions. And I talked about manufacturing jobs earlier. More than 81 percent of part-time workers in June indicate they have chosen part-time employment for noneconomic reasons. The point is that while full-time jobs are increasing, those who are working part time are primarily working part time according to their own testimony for reasons that do not have anything to do with economics. I also mention the fact that temporary jobs in June represented only 2.225 percent of all payroll jobs in the private sector. I make all of these points not to suggest that we can't do better. In fact, the President has said we will not rest until everybody who wants to work can find a job. When you look at some of the counties in Arizona, for example, in Pima and Maricopa Counties where the employment rate is 4.1, 4.2, or 4.3 percent, something in that order, and when you look at an area where there is a substantial amount of illegal immigration with the people working in sectors that Americans have not wanted generally to work, you can see this is the closest thing to full-time employment we could possibly have in this country. Let me give some more statistical data because part of the problem in the debate has been claims by one side and facts on the other side. I know that sometimes people's eyes glaze over when they hear too many numbers, but the reality is that numbers tell the story here. They are like pieces of a puzzle. They are reality. When you put them together, what they represent is not just a strong economy but an economy that is helping individual families provide more income and more security for their work situation. The employment data released by the Bureau of Labor Statistics earlier this month demonstrate this strong job growth. In June, nonfarm payroll employment increased by 112,000 net new jobs. So far this year, nearly 1.3 million net new payroll jobs have been created, and over 1.5 new payroll jobs since last August. According to the Bureau of Labor Statistics' current population survey, which is the household survey, the unemployment rate remains steady at 5.6 percent, which is well below the peak of 6.3 percent in June of 2003. In other words, more Americans are working than at any time in the country's history--139 million individuals. I think that is a record we can be proud of. I make this point: There is a certain sense in which talking down the economy creates a psychology in the market and becomes a self- fulfilling prophecy. I notice there has been criticism in the past by Members on the other side when Republicans have, during the Clinton administration, noted certain problems with the economy. They said don't talk down the economy, that it will have an effect itself on confidence in the market and confidence among consumers. This is what disturbs me about some of the rhetoric from the other side. Every measurement of the economy is improving and every measurement with respect to individuals within the economy is improving substantially and is better than the comparable times during the Clinton administration, yet you hear people constantly talking it down. There is a point at which this itself can have a negative impact. I would like to quote from a Wall Street Journal commentary that sort of describes this phenomenon I am talking about. Here is the Wall Street Journal: Here's a quick primer on how to track an economic recovery. When the media fret that the U.S. is heading for a decade of stagnation like Japan, that means profits and investment are picking up. When you hear that profits have risen but we're stuck in a ``jobless recovery,'' businesses have started hiring. And finally when a cry goes up that American workers can find only low-paying menial jobs, that's the tip-off that the economy is booming. Congratulations, America. The return of ``McJobs'' rhetoric signifies that an expansion is in full swing. Of course, the Journal goes on to detail a lot of the statistical information I have been talking about. By focusing on the quality of the jobs that are being created, the pessimists are once again counting on the public to overlook the facts we have been talking about here. As I have indicated, the facts demonstrate that the U.S. economy is not only producing a steady stream of jobs, but the new positions are well paying and they are industrial jobs. So whether you are talking quality or quantity, it is very hard to deny that this economic recovery is helping all Americans. One of the concerns has been about manufacturing. There is no question that there are shifts occurring all around the world to an information technology kind of economy, and a lot of the old industrial base of this country has been affected by that. But there are also some statistics that I believe give hope with respect to manufacturing in this country, which is still the No. 1 country for manufacturing in the world. In June, nearly 80 percent of the new jobs were created in major industry categories which pay an average hourly rate in excess of the overall average hourly rate in the private sector of $15.65. In June, 39,000 new professional and business services jobs were created in an industry with an average wage of $17.38 per hour--11 percent more than the overall average hourly wage; 19,200 new transportation and warehousing jobs were created in an industry with an average wage of $16.50--7 percent above the overall average. In contrast, because some speak about the leisure or hospitality industry where wages are less, the average wage there is $8.86. That only accounted for 6 percent of the new jobs created. Again, for those who say there are new jobs being created but they are in the lower paying categories and not in the industrial categories, the statistics simply belie that. They say that is not true. The point is, very broadly speaking, the employment figures in June are consistent with an upward trend of well-paying industries creating valuable jobs, and this has been occurring for more than a year. In June, the average hourly earnings of production or nonsupervisory workers increased at an annualized rate of 1.2 percent, the sixth consecutive monthly increase. Importantly, the growth in hourly earnings was broad based, with wages increasing in 9 out of the 11 major industry sectors and unchanged in 3 sectors since June. Since the beginning of the Bush administration, real average hourly earnings--that means adjusted for inflation --have increased by 2.224 percent compared to the Clinton administration. In the first Clinton administration, real average hourly earnings grew by only 1.3 percent. Moreover, in the 2\1/2\ years following the 1990-1991 recession, real average hourly earnings fell .66 percent. So the current increase demonstrates that earnings are outpacing inflation to the benefit of American workers and their families--again, in sharp contrast to the Clinton years. Finally, using the broader measure of ``compensation,'' which includes both wages and benefits, the earnings picture improves even more. Between the first quarter of 2001 and the first quarter of this year, compensation paid to workers in the private industry has increased a total of 12.18 percent. Specifically, wages have grown by 9.44 percent, and employment benefits, including health and pension benefits, have increased by 18.98. No matter how you look at this, individual employees are doing better in terms of the kind of jobs they have, what those jobs are paying both in terms of compensation and in terms of money, as well as compensation in terms of other benefits. There is no way to look at the economic growth and its impact on individual families and workers without seeing the good news. As I said, the only explanation I have for pessimistic talk is the reality of politics. If you are going to try to replace somebody in an office, you have to complain about something. In this case, however, I think those who are complaining about the economy and are somehow suggesting that President Bush and the Republican administration have not done enough to improve the economy for working families basically have not been looking at the facts. The facts have demonstrated quite clearly that this economic recovery is helping a very broad spectrum of people in this country, from industrial jobs to all other kind of jobs. Disposable income is another measure by which you can determine whether families are better off--dollars left after taxes. Here is where the Bush administration has really made big strides because of the tax cuts we passed, which some on the other side of the aisle would take away. In the first 12 quarters, the Bush administration's per capita aftertax income increased by 12.5 percent, in large measure as a result of the individual tax rate reductions we enacted in 2001 and 2003 that were part of the Bush tax reduction programs which he signed into law and is asking us to make permanent. With that kind of improvement in per capita income--this is disposable income, dollars left over after you pay the taxes that our colleagues on the other side of the aisle ought to be joining in making the tax cuts permanent and not that the tax cuts should be eliminated--per capita aftertax disposable income in real, meaning inflation-adjusted, terms has increased 7.1 percent since President Bush took office. That is a significant improvement over the 5.2-percent increase during the same period in the first Clinton administration. In a courtroom, I would say I rest my case. By every conceivable measure of how Americans have been affected by this economy and the economic growth spurred by the position of the President and the action of the Republican House and Senate in support of the administration, by every measure, Americans' lives have improved. We ought to count that as good news, whether we are Democrats or Republicans, regardless of what economic strata we are in. It represents the best in this country, the opportunity we all have, the kind of idea that President Kennedy, all the way through President Reagan, talked about. When the economy is improving, everyone in this country is better off, and we should be grateful. We should understand the causes. We should support those legislative policies that represent those causes and not denigrate an economy which is helping the American public. It is time to be a little bit more optimistic about our future. This is a great country. It is a great country because of the people who create the jobs and who do the work. We should give them a lot more credit than some people on the other side of the aisle have, credit for helping this country to become everything it can become for the benefit of American families.

Mr. KYL

Mr. KYL. Mr. President, I rise today to respond briefly to the comments made by Members on the other side of the aisle about the nomination of J. Leon Holmes to be a District Court Judge for the Eastern District of Arkansas. Mr. Holmes has been criticized for a number of comments--some of which are more than two decades old. Yet his opponents ignore the best evidence about Mr. Holmes: the people who have known him well throughout the past two decades of his legal career. As Senator Lincoln of Arkansas recently noted in reaffirming her support for Mr. Holmes, letters of support from: the legal community in Arkansas, many of whom share different views than Mr. Holmes . . . describe him as ``fair,'' ``compassionate,'' ``even-handed,'' and ``disciplined.'' His colleagues hold him in high esteem. That is from a press release of Senator Blanche Lincoln, April 11, 2003. The other home State Senator, Senator Pryor also, of course, a Democrat--supports Mr. Holmes. Additionally, the strong support of Mr. Holmes' colleagues in the legal community caused the American Bar Association to give him its highest rating of ``well-qualified.'' Finally, the Arkansas Democrat- Gazette, Holmes' hometown paper, is intimately familiar with his record and strongly supports him. The paper, writing while Mr. Holmes was being considered, indicated that Mr. Holmes was a well qualified, mainstream nominee: What distinguishes Mr. Holmes is the rare blend of qualities he brings to the law--intellect, scholarship, conviction, and detachment. A reverence not just for the law but for ideas, for the life of the mind. All of that would shine through the clutter of argument that awaits any judge . . . . He would not only bring distinction to the bench but promise. . . . In choosing Leon Holmes, [the President] could bequeath a promise of greatness. That is from an editorial, Name on a List in a Field of Seven, One Stands Out, Arkansas Democrat Gazette, Dec. 1, 2002, at 86. It is easy to use out-of-context comments to paint an incomplete and inaccurate picture of a person. By looking at the entire context of Mr. Holmes' career, it is clear that he is held in high regard by those who know him and his work. This includes those who hold views contrary to those of Mr. Holmes, such as Stephen Engstrom, who on March 24, 2003 wrote to Chairman Hatch and Senator Leahy: I heartily commend Mr. Holmes to you. He is an outstanding lawyer and a man of excellent character. Leon Holmes and I differ on political and personal issues such as pro-choice/ anti-abortion. I am a past board member of our local Planned Parenthood chapter and have been a trial lawyer in Arkansas for over twenty-five years. Regardless of our personal differences on some issues, I am confident that Leon Holmes will do his duty as the law and facts of any given case require. Letters like this, from people who have known Mr. Holmes well in the context in which he would serve, are the best evidence regarding Mr. Holmes. It is always appropriate to consider questions raised about comments that a nominee has made in the past, and there certainly has been controversy about some of Mr. Holmes' statements. In this situation, I defer to those who know the nominee, and who are in the best position to put his statements into context. In this case, Mr. Holmes has overwhelming bipartisan support from those in his home State, especially those in the legal community, who have known him over the past two decades. Based on this evidence, I will support Mr. Holmes' confirmation to the Federal bench.

Mr. KYL

Mr. KYL. Mr. President, I answer the Senator from Utah, yes, I agree Congress would have to vote before a test could be conducted.