Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I am going to talk about an amendment which I would have offered to the Defense authorization bill, but in the interest of time and to ensure that we can move the bill forward and complete work on that bill this evening, I am not going to do so. But I would like to discuss the general subject of the amendment, and begin by complimenting the chairman of the Armed Services Committee, the Senator from Virginia, on recognizing the very important necessity of changing our law to help work very closely with two of our greatest allies, the United Kingdom and Australia. We transfer a lot of technology back and forth between these two important allies. It is important that we have the capability of doing that. One of the amendments I believe will be adopted as part of this Defense authorization bill is a proposal of the distinguished chairman that would provide an exemption from U.S. law which requires that a bilateral agreement covering a specified set of issues be negotiated in order for a country to obtain an export control waiver. The bilateral agreements between the United States and the United Kingdom and Australia don't quite meet the standard set by U.S. law, so Congress needs to grant an exemption for this. The chairman's amendment is very important in creating this possibility. I strongly associate myself with that amendment. Just a note or two about this relationship between the United Kingdom and Australia and the United States which illustrates why it is so important for us to have this kind of cooperation. I think everybody knows the United Kingdom is our strongest ally in the war on terror. In addition to the over 8,000 personnel they have provided for the military operation, they support food aid. They have contributed a tremendous amount of money for reconstruction. Everyone is aware of their contribution. Perhaps less well known is the contribution that the Australian defense force has made. They contributed about 2,000 of their personnel, including a squadron of FA-18s and special forces elements, two navy frigates. They have a full variety of operations that I won't get into here. They have also been cooperative with us in a lot of other areas such as missile defense programs, and so on. It is for this reason that the chairman offered his proposal, which I am sure will become part of the Defense bill, that will make it easier for us to transfer equipment that is important to defense between the United States and Great Britain and Australia. The amendment I was going to offer simply added or would have added another element to that. We won't do it in this bill. Perhaps in conference with the House or at some other point, we could do that. It is an amendment that would make sure that in the transfer of important munitions between the United States and a country such as Great Britain, they would never get into the wrong hands. That is to say, they wouldn't be exported to a country that might potentially use them against the United States. The reason it is a problem is that some countries in Europe, for example, are talking about lifting the arms embargo that currently exists between those countries, the United States, and China. We do not send China our most sophisticated military equipment. There is a good reason for that. China has announced plans that it is developing military equipment that could directly compete with the United States in military conflict. So, obviously, we don't want to have a law on the books that would make it easy for a country such as China to acquire military equipment that we share freely with our allies, such as Australia and the United Kingdom, but which we would not want to go to a country such as China. That is the reason for my concern about this retransfer issue. The news reports have indicated, for example, that the United Kingdom might agree to support the lifting of the European Union's arms embargo against China. That would be an important event. What my amendment would have done is simply said if the European Union were to lift its arms embargo against China, then no U.S. military equipment could be transferred to entities in the European Union unless the President certified to Congress that there are binding assurances from those entities that our military equipment would not be transferred to China. That is a pretty reasonable proposition. The State Department strongly opposes the European Union's lifting of the arms embargo. Secretary of State Colin Powell said the following on March 1: Regarding arms sales to China, I expressed concern that the European Union might lift its arms embargo. We and the European Union imposed prohibitions for the same reasons, most especially China's serious human rights abuses, and we believe that those reasons remain valid today. It is this government's policy that the arms embargo remain in effect. We are talking about military arms now, not trade. We have a huge amount of trade with China. We are not talking about that. We are talking about limiting certain kinds of militarily useful equipment. At a February hearing of the U.S.-China Economic Security Review Commission, the Deputy Assistant Secretary in the State Department for East Asian and Pacific Affairs, Randy Shriver, also expressed U.S. opposition to the European Union's lifting of the embargo for three key reasons: the human rights reason, China's lax export control policies, and China's military buildup against Taiwan. Similar concerns have been put forth by Department of Defense officials. While we don't like to talk about it, there has been a change in the direction of the buildup of the Chinese military. They have changed their doctrine to a doctrine which explicitly is designed to be able to defeat U.S. military assets. They are proliferating dangerous weapons and technologies to some of our potential adversaries--North Korea, as one example. The intelligence community produces a semiannual report on proliferation. The most recent report stated the following with respect to China: We cannot rule out . . . some continued contacts [related to assistance to unsafeguarded nuclear facilities] subsequent to the pledge between Chinese entities and entities associated with Pakistan's nuclear weapons program. . . . Chinese entities continued to work with Pakistan and Iran on ballistic missile-related projects during the first half of 2003 . . . Chinese-entity ballistic missile assistance helped Iran move toward its goal of becoming self- sufficient in the production of ballistic missiles. In addition, firms in China provided dual-use missile-related items, raw materials, and/or assistance to several other countries of proliferation concern--such as Iran, Libya, and North Korea. During the first half of 2003, China remained a primary supplier of advanced and conventional weapons to both Pakistan and Iran. Islamabad also continued to negotiate with Beijing for China to build up to four frigates for Pakistan's navy and develop FC-1 fighter aircraft. China also continues to threaten democratic Taiwan and to prepare militarily for a conflict against not only Taiwan, but also against the United States, were U.S. military forces to come to the assistance of Taiwan directly. According to one recent Washington Post article, the Chinese Government warned Taiwan's President Chen Shui-bian to pull back what he called ``a dangerous lurch toward independence or face destruction.'' The Defense Department's annual report to Congress on the military power of the People's Republic of China warned . . . the focus of China's short and medium term conventional modernization efforts has been to prepare for military contingencies in the Taiwan Strait, to include scenarios involving U.S. intervention. According to a previous report, the U.S.-China Security Review Commission, now the U.S.-China Economic and Security Review Commission, China's military was directed to have viable options to retake Taiwan by 2005 to 2007. Let me repeat: China's military was told to be prepared for conflict with Taiwan by next year. The DOD report further comments on the impact of the EU lifting its arms embargo stating: Efforts under way to lift the European Union embargo on China will provide additional opportunities to acquire specific technologies from Western suppliers. That is precisely the problem I think we have to come to grips with at some point. I am extraordinarily supportive of efforts to show political support for and, in fact, enhanced military cooperation with our allies, as the Warner amendment certainly does. But I also think we have to look at the export control policies which might, were the European Union to lift the arms embargo, allow material weapons implications to reach a country such as China. We obviously cooperate with China on matters of trade, for example. And it plays an important role in the international community. But it is a country with 20 nuclear-tipped missiles capable of reaching the United States, and the Pentagon projects that number will reach 30 by next year. It is a country that has an announced policy that would be very dangerous if implemented with respect to Taiwan. So if the EU lifts its arms embargo, European countries will have the capacity to willingly pass military technology, and U.S. military technology, if we don't have the proper transfer or retransfer protections in place to a country that presents a potential military threat to the United States. My amendment would have prevented that from happening by simply saying that no U.S. military equipment could be provided to countries in the European Union unless there is a Presidential certification that there are binding assurances from such country that those goods won't be transferred to China. I don't think that is too much to ask. I think at some point we are going to have to include that within our law. The chairman of the committee has been very gracious in talking to me about working toward that end. As I said, I think in view of the great importance of moving this bill forward, completing action on it so we can provide the authority for the Defense Department and the other forces necessary for the next year, I am not going to offer my amendment. I certainly hope at an appropriate time we will be able to include the concept of what I am talking about in this Defense authorization bill. I compliment the chairman for the work he has done, and I express my hope we can conclude this bill soon. We have been on it now for almost a month, or half a month with respect to legislative days. I think it is time to come to an agreement on how to end debate and get it done. After all, we are in a war. We have to protect the American people and provide for the men and women we have put into harm's way for that purpose.

Mr. KYL

Mr. KYL. Mr. President, I rise today to introduce a bill that would authorize the Justice Department to issue judicially enforceable subpoenas in terrorism investigations. Here is how the JETS Act would work: it would allow the FBI to subpoena documents and records ``in any investigation of a Federal crime of terrorism.'' The bill would require the FBI to go to Federal court to enforce the subpoena in the event that the recipient declines to comply with it. It would also allow the recipient to make the first move and go to court to challenge the subpoena. The JETS Act also would allow the Justice Department to temporarily bar the recipient of a JET subpoena from disclosing to anyone other than his lawyer that he has received it. The FBI could bar such disclosure, however, only if the Attorney General certifies that ``otherwise there may result a danger to the national security of the United States.'' Also, the recipient of the subpoena would have the right to go to court to challenge the nondisclosure order. And finally, the JETS Act would protect the recipient from any civil liability that might otherwise result from his good-faith compliance with a JET subpoena. At the outset, it bears mention that the FBI already has ways of obtaining a subpoena when it needs one for a terrorism investigation: it simply finds an Assistant U.S. Attorney and asks him to issue a grand-jury subpoena to investigate a potential crime of terrorism. The advantages of the JETS Act--of giving the FBI direct authority to issue subpoenas--are not so much substantive as procedural. These advantages principally are two: 1. A grand-jury subpoena's ``return date''--the date by which the recipient of the subpoena is asked to comply--can only be a day on which a grand jury is convened. Therefore, a grand- jury subpoena issued on a Friday evening cannot have a return date that is earlier than the next Monday. The JETS Act would allow the FBI to set an earlier return date, so long as that date allows ``a reasonable period of time within which the records or items [to be produced] can be assembled and made available.'' 2. Only an AUSA can issue a grand- jury subpoena. Therefore, whenever the FBI wants to use a grand-jury subpoena in a terrorism case, it must find an AUSA. This can be difficult and time consuming in remote locations. The JETS Act would allow the FBI to forego this exercise. The Justice Department recently made its case as to why it should be given JETS authority in its answers to Senator Biden's written questions to Christopher Wray, the Assistant Attorney General for the Criminal Division, following Mr. Wray's testimony before the Judiciary Committee on October 21, 2003. Senator Biden asked Mr. Wray to cite ``instances where your terrorism investigations have been thwarted due to an inability to secure a subpoena from a grand jury in a timely fashion.'' While Mr. Wray declined to provide the details of those instances when the lack of direct authority has posed a problem, he did offer the ``following hypothetical situations, which could well arise, [and which] illustrate the need for this investigative tool:'' ``In the first scenario, anti-terrorism investigators learn that members of an Al Qaeda cell recently stayed at a particular hotel. They want to know how the cell members paid for their rooms, in order to discover what credit cards they may have used. When investigators ask the hotel manager to produce the payment records voluntarily, the manager declines to do so, explaining that company policy prohibits him from revealing such information about customers without legal process. If investigators had the authority to issue an administrative subpoena, the hotel manager could disclose the records about the Al Qaeda cell immediately without fear of legal liability. In this situation, where the speed and success of the investigation may be matters of life and death, this disclosure would immediately provide investigators with crucial information--such as the location of the terrorists and the nature of their purchases--with which to disrupt and prevent terrorist activity. ``In the second hypothetical situation, anti-terrorism investigators learn on a Saturday morning that members of an Al Qaeda cell have bought bomb-making materials from a chemical company. They want to obtain records relating to the purchase that may reveal what chemicals the terrorists bought, as well as delivery records that might reveal the terrorists' location. The investigators might seek quickly to contact an Assistant United States Attorney, who might immediately obtain a grand-jury subpoena for the records. However, the third party who holds the records could lawfully refuse to furnish them until the subpoena's `return date,' which must be on a day the grand jury is sitting. Because the grand jury is not scheduled to meet again until Monday morning, investigators may not be able to obtain the information for two days--during which time the Al Qaeda cell may execute its plot. If investigators had the authority to issue an administrative subpoena, which can set a very short or immediate response deadline for information, they may be able to obtain the records immediately and neutralize the cell.'' Mr. Wray concluded his answer by noting that ``[g]ranting FBI the use of [JETS authority] would speed those terrorism investigations in which subpoena recipients are not inclined to contest the subpoena in court and are willing to comply. Avoiding delays in these situations would allow agents to track and disrupt terrorist activity more effectively.'' To place the JETS Act in context, it bears noting that granting the FBI direct authority to issue subpoenas in terrorism cases would hardly be anomalous. As the Justice Department's Office of Legal Policy recently noted in a published report, ``Congress has granted some form of administrative subpoena authority to most federal agencies, with many agencies holding several such authorities.'' (Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities, Pursuant to Public Law 106-544, Section 7.) The Justice Department ``identified approximately 335 existing administrative subpoena authorities held by various executive-branch entities under current law.'' Ibid. Among the more frequently employed of existing executive-subpoena authorities is 18 U.S.C. Sec. 3486's permission for the Attorney General to issue subpoenas ``[i]n any investigation of a Federal health care offense.'' According to the Public Law 106-544 Report, in the year 2001 the federal government used Sec. 3486 to issue a total of 2,102 subpoenas in health-care-fraud investigations. These subpoenas uncovered evidence of ``fraudulent claims and false statements such as `upcoding,' which is billing for a higher level of service than that actually provided; double billing for the same visit; billing for services not rendered; and providing unnecessary services.'' Executive agencies already have direct subpoena authority for many types of investigations. Thus it would not be exceptional for Congress to grant the same authority to the FBI for terrorism cases. Indeed, as Mr. Wray noted in his above-cited answers to questions, ``[b]ecause of the benefits that administrative subpoenas provide in fast-moving investigations, they may be more necessary in terrorism cases than in any other type of investigation.'' One can hardly contend that although the federal government can use subpoenas to investigate Mohammed Atta if it suspects that he is committing Medicare fraud, it should not be allowed to use the same powers if it suspects that he is plotting to fly airplanes into buildings. Granting direct subpoena authority to the FBI for terrorism cases first was proposed by the President last year, near the time of the second anniversary of the September 11 attacks. There is one criticism of the President's proposal that was made at that time that I believe needs to be addressed. The New York Times, in a September 14 story, described unnamed ``opponents'' as denouncing the proposal for ``allow[ing] federal agents to issue subpoenas without the approval of a judge or grand jury.'' This criticism reflects a misunderstanding of grand-jury subpoenas. The anonymous opponents of the President's proposal appear to be under the impression that the grand jury itself issues a grand-jury subpoena. This is not the case. Instead, a grand-jury subpoena is issued by an individual federal prosecutor, without any prior involvement by a judge or grand jury. As the U.S. Court of Appeals for the District of Columbia has noted, ``[i]t is important to realize that a grand jury subpoena gets its name from the intended use of the . . . evidence, not from the source of its issuance.'' Doe v. DiGenova, 779 F.2d at 80 n. 11 (1985). Like the grand-jury subpoenas currently used to investigate potential crimes of terrorism, JET subpoenas also would be issued directly by investigators, without pre-approval from a court. It is thus important to keep in mind that a subpoena is merely a request for information--a request that cannot be enforced until its reasonableness has been reviewed by a federal judge. As Mr. Wray noted on behalf of the Justice Department in his answers to Senator Biden's questions: The FBI could not unilaterally enforce an administrative subpoena issued in a terrorism investigation. As with any other type of subpoena, the recipient of an administrative subpoena issued in a terrorism investigation would be able to challenge that subpoena by filing a motion to quash in the United States District Court for the district in which that person or entity does business or resides. If the court denied the motion to quash, the subpoena recipient could still refuse to comply. The government would then be required to seek another court order compelling compliance with the subpoena. This system guarantees protection for civil liberties. The courts take very seriously their role in reviewing subpoena-enforcement requests. As the Third Circuit has emphasized, ``the district court's role is not that of a mere rubber stamp, but of an independent reviewing authority called upon to insure the integrity of the proceeding.'' Wearly v. FTC, 616 F.2d at 665 (1980). The prospect of judicial oversight also inevitably restrains even the initial actions of executive agents. As the Public Law 106-544 Report notes, ``an agency must consider the strictures of [a motion to quash or a challenge to an enforcement order] before issuing an administrative subpoena.'' And finally, the system of separated authority to issue and review subpoenas has itself been recognized to guard civil liberties. The federal courts have found that ``[b]ifurcation of the power, on the one hand of the agency to issue subpoenas and on the other hand of the courts to enforce them, is an inherent protection against abuse of subpoena power.'' United States v. Security State Bank and Trust, 473 F.2d at 641 (5th Cir. 1973). The administrative subpoena is a well-established investigative tool with built-in protections for civil liberties. Its use in antiterrorism investigations should not pose a threat to individual freedom. Finally, although the constitutionality of a tool so frequently used for so long might safely be assumed, it nevertheless merits describing exactly why subpoena power is consistent with the Fourth Amendment. A thorough explanation recently was provided by Judge Paul Niemeyer of the U.S. Court of Appeals for the Fourth Circuit. As Judge Niemeyer noted, the use a subpoena does not require a showing of probable cause because a subpoena is not a warrant--it does not authorize an immediate physical intrusion of someone's premises in order to conduct a search. Rather, subpoenas are subject only to the Fourth Amendment's general reasonableness requirement--and they are reasonable in large part because of the continuous judicial oversight of their enforcement. As Judge Niemeyer stated in his opinion for the court in In re Subpoena Duces Tecum, 228 F.3d at 347-49 (2000) (citations omitted): While the Fourth Amendment protects people ``against unreasonable searches and seizures,'' it imposes a probable cause requirement only on the issuance of warrants. U.S. Const. amend. IV (``and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,'' etc.). Thus, unless subpoenas are warrants, they are limited by the general reasonableness standard of the Fourth Amendment (protecting the people against ``unreasonable searches and seizures''), not by the probable cause requirement. ``A warrant is a judicial authorization to a law enforcement officer to search or seize persons or things. To preserve advantages of speed and surprise, the order is issued without prior notice and is executed, often by force, with an unannounced and unanticipated physical intrusion. Because this intrusion is both an immediate and substantial invasion of privacy, a warrant may be issued only by a judicial officer upon a demonstration of probable cause--the safeguard required by the Fourth Amendment. See U.S. Const. amend. IV (``no Warrants shall issue, but upon probable cause''). The demonstration of probable cause to a neutral judicial officer places a checkpoint between the Government and the citizen where there otherwise would be no judicial supervision. ``A subpoena, on the other hand, commences an adversary process during which the person served with the subpoena may challenge it in court before complying with its demands. As judicial process is afforded before any intrusion occurs, the proposed intrusion is regulated by, and its justification derives from, that process. ``If [the appellant in this case] were correct in his assertion that investigative subpoenas may be issued only upon probable cause, the result would be the virtual end to any investigatory efforts by governmental agencies, as well as grand juries. This is because the object of many such investigations--to determine whether probable cause exists to prosecute a violation--would become a condition precedent for undertaking the investigation. This unacceptable paradox was noted explicitly in the grand jury context in United States v. R. Enterprises, Inc., where the Supreme Court stated: ``[T]he Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists.'' The U.S. Supreme Court first upheld the constitutionality of subpoena authority in 1911. United States v. Wilson, 31 S.Ct. at 542, concluded that ``there is no unreasonable search and seizure when a writ, suitably specific and properly limited in scope, calls for the production of documents which . . . the party procuring [the writ's] issuance is entitled to have produced.'' The Wilson Court also noted that the subpoena power has deep roots in the common-law tradition roots--that stretch at least to Elizabethan times: ``no doubt can be entertained that there must have been some process similar to the subpoena duces tecum to compel the production of documents, not only before [the] time [of Charles the Second], but even before the statute of the 5th of Elizabeth. Prior to that statute, there must have been a power in the Crown (for it would have been utterly impossible to carry on the administration of justice without such power) to require the attendance in courts of justice of persons capable of giving evidence, and the production of documents material to the cause, though in the possession of a stranger.'' The Supreme Court also has explicitly approved the use of subpoenas by executive agencies. In Oklahoma Press Pub. Co. v. Walling, 66 S.Ct. 494 (1946), the Court found that the investigative role of an executive official in issuing a subpoena ``is essentially the same as the grand jury's, or the court's in issuing other pretrial orders for the discovery of evidence.'' Nearly fifty years ago, the U.S. Supreme Court in Walling was able to conclude that Fourth Amendment objections to the use of subpoenas by executive agencies merely ``raise[] the ghost of controversy long since settled adversely to [that] claim.'' Because granting direct subpoena authority to antiterror investigators would aid them in their important work, and would neither intrude upon civil liberties nor conflict with the Constitution, I propose the following bill, which would authorize judicially enforceable terrorism subpoenas. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, I rise today to introduce a bill that would authorize the Justice Department to issue judicially enforceable subpoenas in terrorism investigations. Here is how the JETS Act would work: it would allow the FBI to subpoena documents and records ``in any investigation of a Federal crime of terrorism.'' The bill would require the FBI to go to Federal court to enforce the subpoena in the event that the recipient declines to comply with it. It would also allow the recipient to make the first move and go to court to challenge the subpoena. The JETS Act also would allow the Justice Department to temporarily bar the recipient of a JET subpoena from disclosing to anyone other than his lawyer that he has received it. The FBI could bar such disclosure, however, only if the Attorney General certifies that ``otherwise there may result a danger to the national security of the United States.'' Also, the recipient of the subpoena would have the right to go to court to challenge the nondisclosure order. And finally, the JETS Act would protect the recipient from any civil liability that might otherwise result from his good-faith compliance with a JET subpoena. At the outset, it bears mention that the FBI already has ways of obtaining a subpoena when it needs one for a terrorism investigation: it simply finds an Assistant U.S. Attorney and asks him to issue a grand-jury subpoena to investigate a potential crime of terrorism. The advantages of the JETS Act--of giving the FBI direct authority to issue subpoenas--are not so much substantive as procedural. These advantages principally are two: 1. A grand-jury subpoena's ``return date''--the date by which the recipient of the subpoena is asked to comply--can only be a day on which a grand jury is convened. Therefore, a grand- jury subpoena issued on a Friday evening cannot have a return date that is earlier than the next Monday. The JETS Act would allow the FBI to set an earlier return date, so long as that date allows ``a reasonable period of time within which the records or items [to be produced] can be assembled and made available.'' 2. Only an AUSA can issue a grand- jury subpoena. Therefore, whenever the FBI wants to use a grand-jury subpoena in a terrorism case, it must find an AUSA. This can be difficult and time consuming in remote locations. The JETS Act would allow the FBI to forego this exercise. The Justice Department recently made its case as to why it should be given JETS authority in its answers to Senator Biden's written questions to Christopher Wray, the Assistant Attorney General for the Criminal Division, following Mr. Wray's testimony before the Judiciary Committee on October 21, 2003. Senator Biden asked Mr. Wray to cite ``instances where your terrorism investigations have been thwarted due to an inability to secure a subpoena from a grand jury in a timely fashion.'' While Mr. Wray declined to provide the details of those instances when the lack of direct authority has posed a problem, he did offer the ``following hypothetical situations, which could well arise, [and which] illustrate the need for this investigative tool:'' ``In the first scenario, anti-terrorism investigators learn that members of an Al Qaeda cell recently stayed at a particular hotel. They want to know how the cell members paid for their rooms, in order to discover what credit cards they may have used. When investigators ask the hotel manager to produce the payment records voluntarily, the manager declines to do so, explaining that company policy prohibits him from revealing such information about customers without legal process. If investigators had the authority to issue an administrative subpoena, the hotel manager could disclose the records about the Al Qaeda cell immediately without fear of legal liability. In this situation, where the speed and success of the investigation may be matters of life and death, this disclosure would immediately provide investigators with crucial information--such as the location of the terrorists and the nature of their purchases--with which to disrupt and prevent terrorist activity. ``In the second hypothetical situation, anti-terrorism investigators learn on a Saturday morning that members of an Al Qaeda cell have bought bomb-making materials from a chemical company. They want to obtain records relating to the purchase that may reveal what chemicals the terrorists bought, as well as delivery records that might reveal the terrorists' location. The investigators might seek quickly to contact an Assistant United States Attorney, who might immediately obtain a grand-jury subpoena for the records. However, the third party who holds the records could lawfully refuse to furnish them until the subpoena's `return date,' which must be on a day the grand jury is sitting. Because the grand jury is not scheduled to meet again until Monday morning, investigators may not be able to obtain the information for two days--during which time the Al Qaeda cell may execute its plot. If investigators had the authority to issue an administrative subpoena, which can set a very short or immediate response deadline for information, they may be able to obtain the records immediately and neutralize the cell.'' Mr. Wray concluded his answer by noting that ``[g]ranting FBI the use of [JETS authority] would speed those terrorism investigations in which subpoena recipients are not inclined to contest the subpoena in court and are willing to comply. Avoiding delays in these situations would allow agents to track and disrupt terrorist activity more effectively.'' To place the JETS Act in context, it bears noting that granting the FBI direct authority to issue subpoenas in terrorism cases would hardly be anomalous. As the Justice Department's Office of Legal Policy recently noted in a published report, ``Congress has granted some form of administrative subpoena authority to most federal agencies, with many agencies holding several such authorities.'' (Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities, Pursuant to Public Law 106-544, Section 7.) The Justice Department ``identified approximately 335 existing administrative subpoena authorities held by various executive-branch entities under current law.'' Ibid. Among the more frequently employed of existing executive-subpoena authorities is 18 U.S.C. Sec. 3486's permission for the Attorney General to issue subpoenas ``[i]n any investigation of a Federal health care offense.'' According to the Public Law 106-544 Report, in the year 2001 the federal government used Sec. 3486 to issue a total of 2,102 subpoenas in health-care-fraud investigations. These subpoenas uncovered evidence of ``fraudulent claims and false statements such as `upcoding,' which is billing for a higher level of service than that actually provided; double billing for the same visit; billing for services not rendered; and providing unnecessary services.'' Executive agencies already have direct subpoena authority for many types of investigations. Thus it would not be exceptional for Congress to grant the same authority to the FBI for terrorism cases. Indeed, as Mr. Wray noted in his above-cited answers to questions, ``[b]ecause of the benefits that administrative subpoenas provide in fast-moving investigations, they may be more necessary in terrorism cases than in any other type of investigation.'' One can hardly contend that although the federal government can use subpoenas to investigate Mohammed Atta if it suspects that he is committing Medicare fraud, it should not be allowed to use the same powers if it suspects that he is plotting to fly airplanes into buildings. Granting direct subpoena authority to the FBI for terrorism cases first was proposed by the President last year, near the time of the second anniversary of the September 11 attacks. There is one criticism of the President's proposal that was made at that time that I believe needs to be addressed. The New York Times, in a September 14 story, described unnamed ``opponents'' as denouncing the proposal for ``allow[ing] federal agents to issue subpoenas without the approval of a judge or grand jury.'' This criticism reflects a misunderstanding of grand-jury subpoenas. The anonymous opponents of the President's proposal appear to be under the impression that the grand jury itself issues a grand-jury subpoena. This is not the case. Instead, a grand-jury subpoena is issued by an individual federal prosecutor, without any prior involvement by a judge or grand jury. As the U.S. Court of Appeals for the District of Columbia has noted, ``[i]t is important to realize that a grand jury subpoena gets its name from the intended use of the . . . evidence, not from the source of its issuance.'' Doe v. DiGenova, 779 F.2d at 80 n. 11 (1985). Like the grand-jury subpoenas currently used to investigate potential crimes of terrorism, JET subpoenas also would be issued directly by investigators, without pre-approval from a court. It is thus important to keep in mind that a subpoena is merely a request for information--a request that cannot be enforced until its reasonableness has been reviewed by a federal judge. As Mr. Wray noted on behalf of the Justice Department in his answers to Senator Biden's questions: The FBI could not unilaterally enforce an administrative subpoena issued in a terrorism investigation. As with any other type of subpoena, the recipient of an administrative subpoena issued in a terrorism investigation would be able to challenge that subpoena by filing a motion to quash in the United States District Court for the district in which that person or entity does business or resides. If the court denied the motion to quash, the subpoena recipient could still refuse to comply. The government would then be required to seek another court order compelling compliance with the subpoena. This system guarantees protection for civil liberties. The courts take very seriously their role in reviewing subpoena-enforcement requests. As the Third Circuit has emphasized, ``the district court's role is not that of a mere rubber stamp, but of an independent reviewing authority called upon to insure the integrity of the proceeding.'' Wearly v. FTC, 616 F.2d at 665 (1980). The prospect of judicial oversight also inevitably restrains even the initial actions of executive agents. As the Public Law 106-544 Report notes, ``an agency must consider the strictures of [a motion to quash or a challenge to an enforcement order] before issuing an administrative subpoena.'' And finally, the system of separated authority to issue and review subpoenas has itself been recognized to guard civil liberties. The federal courts have found that ``[b]ifurcation of the power, on the one hand of the agency to issue subpoenas and on the other hand of the courts to enforce them, is an inherent protection against abuse of subpoena power.'' United States v. Security State Bank and Trust, 473 F.2d at 641 (5th Cir. 1973). The administrative subpoena is a well-established investigative tool with built-in protections for civil liberties. Its use in antiterrorism investigations should not pose a threat to individual freedom. Finally, although the constitutionality of a tool so frequently used for so long might safely be assumed, it nevertheless merits describing exactly why subpoena power is consistent with the Fourth Amendment. A thorough explanation recently was provided by Judge Paul Niemeyer of the U.S. Court of Appeals for the Fourth Circuit. As Judge Niemeyer noted, the use a subpoena does not require a showing of probable cause because a subpoena is not a warrant--it does not authorize an immediate physical intrusion of someone's premises in order to conduct a search. Rather, subpoenas are subject only to the Fourth Amendment's general reasonableness requirement--and they are reasonable in large part because of the continuous judicial oversight of their enforcement. As Judge Niemeyer stated in his opinion for the court in In re Subpoena Duces Tecum, 228 F.3d at 347-49 (2000) (citations omitted): While the Fourth Amendment protects people ``against unreasonable searches and seizures,'' it imposes a probable cause requirement only on the issuance of warrants. U.S. Const. amend. IV (``and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,'' etc.). Thus, unless subpoenas are warrants, they are limited by the general reasonableness standard of the Fourth Amendment (protecting the people against ``unreasonable searches and seizures''), not by the probable cause requirement. ``A warrant is a judicial authorization to a law enforcement officer to search or seize persons or things. To preserve advantages of speed and surprise, the order is issued without prior notice and is executed, often by force, with an unannounced and unanticipated physical intrusion. Because this intrusion is both an immediate and substantial invasion of privacy, a warrant may be issued only by a judicial officer upon a demonstration of probable cause--the safeguard required by the Fourth Amendment. See U.S. Const. amend. IV (``no Warrants shall issue, but upon probable cause''). The demonstration of probable cause to a neutral judicial officer places a checkpoint between the Government and the citizen where there otherwise would be no judicial supervision. ``A subpoena, on the other hand, commences an adversary process during which the person served with the subpoena may challenge it in court before complying with its demands. As judicial process is afforded before any intrusion occurs, the proposed intrusion is regulated by, and its justification derives from, that process. ``If [the appellant in this case] were correct in his assertion that investigative subpoenas may be issued only upon probable cause, the result would be the virtual end to any investigatory efforts by governmental agencies, as well as grand juries. This is because the object of many such investigations--to determine whether probable cause exists to prosecute a violation--would become a condition precedent for undertaking the investigation. This unacceptable paradox was noted explicitly in the grand jury context in United States v. R. Enterprises, Inc., where the Supreme Court stated: ``[T]he Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists.'' The U.S. Supreme Court first upheld the constitutionality of subpoena authority in 1911. United States v. Wilson, 31 S.Ct. at 542, concluded that ``there is no unreasonable search and seizure when a writ, suitably specific and properly limited in scope, calls for the production of documents which . . . the party procuring [the writ's] issuance is entitled to have produced.'' The Wilson Court also noted that the subpoena power has deep roots in the common-law tradition roots--that stretch at least to Elizabethan times: ``no doubt can be entertained that there must have been some process similar to the subpoena duces tecum to compel the production of documents, not only before [the] time [of Charles the Second], but even before the statute of the 5th of Elizabeth. Prior to that statute, there must have been a power in the Crown (for it would have been utterly impossible to carry on the administration of justice without such power) to require the attendance in courts of justice of persons capable of giving evidence, and the production of documents material to the cause, though in the possession of a stranger.'' The Supreme Court also has explicitly approved the use of subpoenas by executive agencies. In Oklahoma Press Pub. Co. v. Walling, 66 S.Ct. 494 (1946), the Court found that the investigative role of an executive official in issuing a subpoena ``is essentially the same as the grand jury's, or the court's in issuing other pretrial orders for the discovery of evidence.'' Nearly fifty years ago, the U.S. Supreme Court in Walling was able to conclude that Fourth Amendment objections to the use of subpoenas by executive agencies merely ``raise[] the ghost of controversy long since settled adversely to [that] claim.'' Because granting direct subpoena authority to antiterror investigators would aid them in their important work, and would neither intrude upon civil liberties nor conflict with the Constitution, I propose the following bill, which would authorize judicially enforceable terrorism subpoenas. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KYL

Mr. KYL. I ask unanimous consent that the resolution be agreed to, the motion to reconsider be laid upon the table, and that any statements relating to the resolution be printed in the Record.

Mr. KYL. Madam President, I ask unanimous consent that the Senate now proceed to the immediate consideration of H. Con. Res. 458, which is at the desk.

Mr. KYL

Mr. KYL. If there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in adjournment under the previous order.

Mr. KYL

Mr. KYL. Tomorrow the Senate will resume consideration of the Defense authorization bill. Under the previous order, when the Senate resumes consideration of the Defense bill, there will be 1 hour of debate on the Levin missile defense amendment prior to a vote in relation to the amendment. Immediately following that vote, the Senate will proceed to a vote on the Brownback decency amendment. Therefore, Senators should expect back-to-back rollcall votes beginning close to 11 a.m. For the remainder of the day, the Senate will continue to work through amendments to the bill under an agreement reached earlier this evening. All first-degree amendments must be offered by 6:30 p.m. tomorrow. Therefore, Senators who wish to offer an amendment to the Defense bill should contact the bill managers as soon as possible. In addition to votes on amendments, Senators can expect votes on judicial nominations as well. Finally, a late night session is expected as we move toward completion of the bill.

Mr. KYL

Mr. KYL. Madam President, on behalf of the leader, I ask unanimous consent that when the Senate completes its business today, it adjourn until 9:45 a.m. on Tuesday, June 22. I further ask that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and the Senate then resume consideration of Calendar No. 403, S. 2400, the Department of Defense authorization bill, as provided under the previous order; provided further that the previous order be modified so all first-degree amendments be offered by 6:30 with the exception of those amendments cleared by both managers. I further ask consent that the Senate recess for the weekly party luncheons from 12:30 p.m. until the completion of the official Senate photograph.

Mr. KYL

Mr. KYL. Madam President, I ask unanimous consent that the bill be read a third time and passed, the motion to reconsider be laid upon the table, and any statements relating to the bill be printed in the Record.

Mr. KYL. Madam President, I ask unanimous consent that the Senate proceed to the immediate consideration of H. R. 4322, which is at the desk.

Mr. KYL

Mr. KYL. Madam President, I ask unanimous consent that the resolutions be agreed to, the preambles be agreed to, the motions to reconsider be laid upon the table, all en bloc, and that any statements relating to the resolutions be printed in the Record.

Mr. KYL. Madam President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 385 and S. Res. 386, which were submitted earlier today.

Mr. KYL

Mr. KYL. Madam President, I ask unanimous consent that the Senate now proceed to a period for the transaction of morning business, with Senators permitted to speak for up to 10 minutes each.

Mr. KYL

Mr. KYL. Madam President, of course that is true. I would like to propound some unanimous consent requests on behalf of the leader, if there is no other Senator wishing to speak to this matter.

Mr. KYL. Madam President, I knew if we stood here long enough, the Senator from Michigan and I would find something on which to agree.

Mr. KYL. Madam President, I have not checked to see what the current plan is with respect to the timing of the tests and with respect to the missiles that are included within the program, which I think the Senator is talking about, which are the first 20 missiles.

Mr. KYL. Madam President--

Mr. KYL. Madam President, I appreciate the chairman of the committee yielding time for me to respond to the amendment of our colleague, the Senator from Michigan. I will respond directly to some of the last points the Senator made as I get further into my remarks. I begin by simply describing first of all the essence of this amendment and why it must be opposed. It would cut $515.5 million from the Missile Defense Program. That is over $\1/2\ billion. It adds that funding to a variety of other programs, all of which are adequately funded. We have added funding to some of them, and in some cases we could not even spend the money that would be allocated. I will get into those matters later. Let me begin by discussing the harm that would be done to the Missile Defense Program--which we have all committed to pursuing under the Clinton administration--as a result of the adoption of the Levin amendment. Specifically, as he described it, the amendment cuts funding for additional ground-based interceptors. These are missiles that go into the ground, primarily into the State of the Presiding Officer. This is the heart of our ground-based missile defense system. The missile defense opponents contend we are spending too much money on a system that has not yet been proven to work, and they further claim that deployment is premature because, as the Senator from Michigan argued, operationally realistic testing has not been completed, and the administration, he contends, is not complying with U.S. acquisition laws that require such operational testing and evaluation. We are complying with the law. There is no question about that. It appears that the objective critics want to achieve in demanding the missile defense system be operationally tested before deployment is actually to halt the program altogether. I will explain why. The bottom line is we need the interceptors that would be eliminated as a result of eliminating this spending. We need them to do the very tests our critics are demanding be done. In other words, it is a Catch- 22: You have to do operational testing, but we are not going to give you the money to get the missiles to do the testing. That makes no sense. Moreover, by adding these missiles to the first 20 that will be purchased, we have an additional capability to actually defend ourselves. I know that is troublesome to some, that we would actually be able to defend ourselves in the event that a nation accidentally launched a missile defense at us--and there are at least three or four countries today that could do that--or, God forbid, a country deliberately launched a missile defense at us. So these missiles not only are available for testing but also would actually be able to defend the country for the first time since Ronald Reagan in 1983 announced our intention to work on a missile defense system. At that time, he said it could take decades, but I don't think he anticipated that we would research it to death; in other words, that we would be willing to spend more and more and more money but never, as they say in the military, bend metal; in other words, never actually produce the product that would achieve the end result--in this case, a missile to defend ourselves. Now, let me get to this question about operational testing because that is the essence of the amendment of the Senator from Michigan. The previous Director of Operational Test and Evaluation, Phillip Coyle, was quite critical of the National Missile Defense Program in the late 1990s because the NMD tests, in his opinion, lacked realism, not conducted under operational testing. In fact, that was true. These tests are always launched from--the target is launched from Vandenberg Air Force Base in California toward the Pacific Ocean and the interceptor from the Reagan test site in the Pacific. I might add, I visited that test site last January. It is an incredible facility. They do their very best to replicate what might happen in a real world war. They are very good. But, they acknowledge, they are notified in advance that there is going to be an offensive missile launched, and, of course, they are quite prepared to launch the missile to intercept it. Naturally, they use the same geometrics. One cannot argue that this test range exactly replicates the exact circumstances under which an attack might come. That is quite obvious. These tests that have been performed, and the most recent ones have been quite successful and confirm that all of the component parts work and it is possible to intercept a missile with a missile. Therefore, these developmental tests are very important to getting the program to the point where we can operationally test. Obviously, we do not want to deploy and test for the first time, so we go through this phase. But there comes a time when we have to get the conditions more like they would actually be. We know that the best place to place missiles in the ground to defend against a probable attack is in the home State of the Presiding Officer--Alaska--simply because of its proximity to the locations where an offensive missile might come from and the geometrics of how we would intercept, which direction it would come from, and how we best intercept it. It is a tad cold in the State of Alaska. In fact, the snow can get kind of high and ice can form over the top of the silos. Obviously, one thing we have to know how to do in the middle of the winter is to make sure we can blow the top off that silo and fire the missile up so it can intercept the offensive missile coming at us. That is just one example, but it makes the point that you do need to test in an operational situation, and that, of course, is precisely why we need to buy these additional missiles. The Missile Defense Agency determined that we needed more realistic tests. It initiated an effort to develop and field an extensive missile defense test bed that would allow for operationally realistic testing. As the elements of test bed are put into place, they are tested. All of this is sequential. It is an ongoing process. Both the Director of Operational Test and Evaluation and the Commander of STRATCOM recognize the test bed will grow and mature over time as the elements of it are developed, fielded, and tested. This is the very essence of what spiral development is all about. I have to discuss spiral development just briefly. This is the concept that we are able to evaluate and modify systems as we go along, as technology improves. The technology here is improving so rapidly and the potential enemies' technology so rapidly that it is never possible to wait until we know exactly what the enemy is going to throw at us and then begin work on a system that we can defeat it with. You have to be working right alongside what the enemy is doing and developing your program as you go along, adding the technology as it develops. I might add, it is not the only program we do this with. The F-16 is a great fighter plane. It is trained at Luke Air Force Base in Arizona. I do not even recall which number of the F-16 we are on now. We started with the A model, and then the B model, and then the C model, and the E, and on and on, and each model improves the airplane. The F-16 flown today is a totally different airplane than the one designed over 20 years ago. As we develop new technology, we add that to the system. Thus, the same with the missile defense system. You cannot wait until you can develop the perfect system and then begin building it and deploying it. By the time you did that, you would already be way behind the progress your potential enemy is making. So it is very natural, then, to allow this spiral development, especially in a program such as missile defense. Where are we now? This fall we will field an initial operational missile defense capability at Fort Greeley, AK, and Vandenberg Air Force Base which will include just 20 interceptors. That is all. By the time this system is ready for operational alert, the Missile Defense Agency will have tested the operational configuration of the interceptor, the command, the control, the battle management and communications systems, as well as the interoperability and the performance of the needed sensors. Operational Test and Evaluation personnel from the Office of the Director of Operational Test and Evaluation have been fully engaged in the testing, along with the warfighters who will operate the system. So this is not just contractors going out there and seeing if they can make the system work. We are beyond that. That was done earlier. We are now at the stage of interoperability where Operational Test and Evaluation personnel and actual combat operators will be engaged in the testing. So what is the alleged problem here? What Missile Defense wanted to do is stop the administration from acquiring the 20 interceptors it needs to complement the first 20 that, as has been noted, have been funded. Specifically, the request for fiscal year 2005 makes a downpayment on additional ground-based interceptors, interceptors Nos. 21 through 40. I would note, however, that the Senate Armed Services Committee-passed Defense authorization bill already cut long-lead procurement funding for interceptors Nos. 31 through 40. So we have already delayed the second 10 of this next 20 and made it more expensive, undoubtedly, to acquire by the action we have taken here. So it is not as if we have not evaluated this and tried to figure out if we could save some money in the acquisition of these additional interceptors. We have done that. The Armed Services Committee did it, and it should be applauded for doing it. What would this downpayment on this next 20--of which already the lead time has been cut by half, so we are now talking 10--what would it provide? The first thing it would provide is additional test articles necessary, in the view of the Department of Defense, to conduct planned future integrated flight tests. So it is not as if we have already bought everything we need to conduct our testing. Secondly, it would provide an expanded interceptor inventory to address the estimated growth in foreign ballistic missile threats from adversaries, such as North Korea and, perhaps, Iran. Three, it would maintain a more steady industrial-base production line for the interceptors and the kill vehicles in case an expanded inventory is determined necessary. And, four, it would provide ground site preparation activities for interceptors 21 through 30. These things take time. It has been a couple of years since the people have been at work in the State of Alaska preparing these sites to accept the missiles that will be put in the silos, to put the radar and the other equipment up that is necessary to make this whole system work. The additional cuts or restrictions that have been proposed here would cripple the effective deployment of the initial test bed system. That system, as I said, is absolutely essential if we are to conduct the more realistic testing everyone is calling for. What does the head of Operational Test and Evaluation today say about this program? The Director, Thomas Christie, recently testified at a Senate Armed Services Committee hearing on missile defense, as the distinguished ranking member knows. Here is what he said: . . . I think the issue we're talking about here is the building of missiles that will be put into silos that are part of the test bed, and we will have to have this test bed in order to do some of the testing that will become more realistic engagements, geometries, for example, than we've been able to do before. And some of these attributes of this test bed are in response to criticism that came from my office and my predecessor in previous administrations. . . . In other words, making the point earlier that: Well, we have not gotten realistic enough in our testing yet. We are trying to respond to that. Yet this amendment would cut the funding for the missiles that are precisely necessary to do that. The purchase of additional ground-based interceptors, which the critics of the system would like to prevent, will provide a rotatable pool of operational and test assets, and this, in turn, will allow the United States to field the most current interceptor improvements. Now, the missile defense is a capabilities-based development program. The system under development is a spiral development program, as I described. There is, at this present time, no mature operational capability against which traditional or formal operational test and evaluation can be completed. This is a key point General Kadish has made over and over. This is not like building another Navy destroyer or another Air Force fighter jet where we already have generations of previous such weapons and all we are doing is now developing the most recent technology. There is no missile defense. I know some Americans may not realize this, but if a missile were fired at us today, we could not stop it. We do not have a ballistic missile defense system--not one missile. So we are doing this for the first time. That is why we want to do it in this spiral development mode I have been describing. Moreover, fielding a system before operational test and evaluation is not unprecedented. It has been done before in other cases where there was no similar capability as I have just described and also where an urgent need existed. Let me give you some examples. One that is most recent, probably, is the Joint Surveillance and Target Attack Radar System aircraft. It is called JSTARS. It played an important role in the 1991 Persian Gulf war by providing warning to our forces on the ground when the Iraqi military was on the move. Now, JSTARS was not an operational system. We did not have any of these aircraft at the time. It was in preproduction. We were just beginning to build the aircraft. We had not even begun the operational test and evaluation. Yet we realized we were in a war in which we needed to know where the enemy was going. I know something about this particular system because parts of it actually were produced by a company in my own State. Our military said: We have a system here. It has not gone through preproduction operational test and evaluation, but we might be able to get it configured and put together quickly enough to bring it over to the gulf and do you some good. And they did, and it did. It was invaluable. It had not gone through all this testing, but we were in an emergency situation, and it did its job. It did very well. Other examples include the Predator and the Global Hawk unmanned aerial vehicles. Both have been very valuable assets in the war on terrorism. Yet they were deployed--into areas that we cannot discuss-- before there had been any operational test and evaluation. These were almost brandnew ideas. In fact, each vehicle was, in effect, a prototype. Yet our commanders figured out: We need some surveillance. Do you have anything that can help us out here? And sure enough, the contractor said: We do, but they're not ready to go. They haven't gone through all the testing. The commanders in the field said: Bring them over. We need them. And they have done a terrific job. A third example is the Patriot missile battery. This is an anti- aircraft missile battery. We found ourselves in the middle of the Persian Gulf war, and the Iraqis were firing scud missiles at us. There was no defense against scud missiles. Commanders said: Is there anything we can do? The answer came: Well, we have these Patriot missiles. They are designed to shoot down aircraft. Maybe we can configure some radar to operate with the system and do some other things and possibly shoot down some of these scud missiles. Literally, as they were bringing them across from America to Saudi Arabia and Kuwait, they were putting in fixes in the Patriot anti- aircraft system. You know the rest of the story. We began shooting down scud missiles with this system. It wasn't perfect. It was not designed for this. We were constantly upgrading it. But I think estimates finally concluded we shot down maybe about a third--I have forgotten the exact number--of the Iraqi Scuds being fired against us. We needed it in an emergency. Nobody could have predicted necessarily that we needed that system at that time. You can't wait until you know that you have the threat sometimes. That is the same thing with missile defense. I sometimes wonder if my colleagues would allow us to use one of these test missiles against--let's just say North Korea accidentally launched a missile at Alaska. Would they say, Sorry, this has not been operationally tested and evaluated? It hasn't gone through all the checks and balances, therefore, you can't use it? No, of course not. We would use it to defend ourselves. So let's don't get into this argument that somehow you have to check all of these boxes in some certain order before you can even put the missile in the ground, A, to test it, and, B--God forbid if we had to--to use it. There is nothing wrong, there is nothing illegal about this. It has been done before. In fact, it has been proven necessary before. I said it is in accord with acquisition laws. The Director of the Operational Test and Evaluation Program, Mr. Christie, has already testified that the program is, and this is a direct quote, ``living within the law.'' The Missile Defense Agency has not sought nor has it received any waiver for any acquisition statutes here. The missile defense authority is conducting tests that are increasingly operationally realistic, appropriate to the maturity of a system that is still under development. So there is nothing wrong with what is being done. But what has been set up is a catch-22. You can't deploy until you test, but the catch-22 is, you can't test without deploying. Well, we are going to deploy, and hopefully we will buy enough missiles so we have the capability of doing the tests the way they need to be done. I made the point that it would be nonsensical to argue this theory of operational testing being required to be completed before you could actually deploy a system and noted that no one would deny us the right to use such a system in self-defense if we had to do that. It is, in fact, true that there are countries that have this capability today. It is also true that maybe this isn't today the threat that is most likely to occur, but we know--without getting into a lot of detail--there are countries that have had systems for some time. We are not certain necessarily of the safety and reliability of those systems, the ability for those systems to not be accidentally launched or for somebody else to intentionally launch them notwithstanding the custody and the state in which they are located. If there were such an accident, we would need to have the capability against it. We face that threat today because, as I said, there are countries in this world that have operational systems that can reach the United States. Some of them are not friendly to the United States either. I repeat, today we have no defense against a ballistic missile attack. That is why President Bush, when he came into office, decided to pursue this spiral development, this notion that we will try to get the best we can out there as quickly as we can. That will serve three purposes. First, it will enable us to defend ourselves if we had to as quickly as possible. And he set this fall as the target date for that deployment. In fact, we are going to be able to meet that date. I hope the Presiding Officer is able to be in her State because she and the other Senator from the great State of Alaska have been indefatigable in their efforts to make sure the program goes forward. We will actually be able to defend ourselves if there were an accidental or, as I said, an intentional launch against us. Secondly, it enables us to do this operational testing under realistic conditions. And there is a third point. This is very important. It is a deterrent. We want other countries to do what Muammar Qadhafi did. We want these other countries to say: It is costing us a lot of money to try to develop this nuclear program. At the end of the day, the United States is probably going to be able to beat us. We might as well not go through the cost and the effort to try to develop it. Deterrence. Let me read what very recently, just before the Reagan funeral, Genadi Garasimov, spokesman for the former Soviet leader Mikhail Gorbachev, had to say: I see President Reagan as a grave digger of the Soviet Union and the spade that he used to prepare this grave was SDI, the Strategic Defense Initiative, so-called Star Wars. The trick was that the Soviet leadership believed that this SDI defense is possible and then, because it is possible, that also we must catch up with the Americans. And this was an invitation to the arms race and the Soviet economy could not really afford it. In this way Reagan really contributed to the demise of the Soviet Union. It worked. President Reagan was not bluffing. He meant to deploy this system. At Reykjavik, when Gorbachev said: We can make this arms deal we have been talking about, if you will do one more thing. If you will stop development of your SDI program, we have a deal. President Reagan thought about it overnight, came back the next morning and said: I am sorry. The United States is going to proceed with missile defense. Gorbachev knew at that moment it was over. They could not compete with us, and it wasn't obviously worth the effort to try to do so because they knew the technology of the United States could produce a defense against the only real weapon that the Soviet Union had that could defeat us, and that was the ballistic missile. The point of telling the story is that we need to let others like Muammar Qadhafi understand the fact that we are not bluffing. We mean it. We are going to deploy the system and it is going to work and defeat them and they might as well not go through all the time and effort and expense to develop offensive missiles to try to reach the United States because it won't work. We are going to be able to shoot them down. So don't bother to do it. This is a nonproliferation or antiproliferation program. By moving forward in a robust way with the expenditure of this money and letting them know that we mean business, that we are not bluffing, I believe we will deter countries from continuing the development of their programs or putting more money into their programs. We don't need to get into all of the countries that we might be talking about today. Some are perhaps, if not allies, at least not enemies of the United States today. Others are potential enemies. The point is, we don't want to encourage anyone to believe that we are not serious about moving forward with this program. With all due respect, this amendment would send that signal. We have cut the money for the long lead funding on the third tranche of missiles. This would say: Let's just totally eliminate the funding, a half a billion dollars, for these 10 missiles. It begins to send the message that we are going to research forever but build never. That is a message we cannot afford to send. What we are doing is consistent with the 1999 Missile Defense Act which declared, and I quote, that ``it is the policy of the United States to deploy as soon as is technologically possible an effective national missile defense system capable of defending the territory of the United States against limited ballistic missile attack.'' That is the law. That is what we need to do. If we have the technology to do it, it would be more than negligent; it would be criminal for our government not to do so. If you have the ability to do it, it is the moral thing to do as well. As Ronald Reagan said many times: I would much rather be able to defeat an enemy missile than to have to rely upon a nuclear deterrent and mutually destroy each other. It is unthinkable in today's world that we would have to do that when we have the technological option of missile defense. Given the nature of the threat posed, given our technological capability at this point and each year our increasing ability to improve, this is the only responsible course of action. We have already defeated, in effect, this same amendment before, the Reid amendment, based on the same argument about operational testing. But it only fenced the funding for these missiles. The Levin amendment virtually eliminates the funding and would spend it on other things. I suggest if we were willing to reject the Reid amendment, which merely fenced the funding, it would logically follow that we would even more likely reject the Levin amendment, which does away with all of the funding. What he has done is to distinguish from the Reid amendment by taking this half billion dollars and spreading it around to some other programs. That is the essential difference. I will turn to that next. His argument is that we need to look at priorities, and that right now it might be easier for some terrorists to bring a weapon of mass destruction into this country than to launch it on a ballistic missile. In the first place, that is wrong. There are countries today that have the perfect capability of launching a ballistic missile with a nuclear warhead at the United States, and we have no defense against it whatsoever. So the argument is incorrect. Now, it is true that a terrorist organization may want to do it in a different way. But if it could get hold of a missile, I suggest it would do it. Take the case of Pakistan, which is a very great ally of the U.S. today but a country with ballistic missiles. I hope that country will always have control over those missiles and have a leader of the quality of President Musharraf. But what would happen if it didn't? Terrorists can do things in lots of different ways, that is true, and that is a point the Senator from Michigan made. My subcommittee on terrorism technology held hearings on container security, and it is true that we don't have perfect security at our ports and we need to spend more money and we need to do better at looking at the different ways in which terrorism can strike the United States. That is all very true. The question is whether our priorities are right. The Defense bill we are debating on the Senate floor tonight spends approximately $420 billion for next year. The Senator from Michigan would almost make it seem as if the only thing we are doing is spending money on missile defense, and that we have to get off of that priority because there are other higher priorities. How much are we spending on that? It is $10 billion. Out of a $420 billion Defense bill, we are spending $10.2 billion on missile defense, and only a half billion of that is on the program we are talking about. So it is hardly a matter of taking all our defense money and putting it on a program that we should not be spending it on. Out of $420 billion, we are spending a half billion dollars on what the Senator from Michigan would strike. What are the higher priorities? The Senator says homeland security. Indeed, if you add the money in this bill and the other homeland security money on homeland security that is being authorized for this next year, it is more than $47 billion. That is 15 percent over last year and 130 percent over fiscal year 2002. If you want to make the argument that as a matter of priority we should be spending more on homeland security than these 10 missiles, well, we are. It is $47 billion-plus versus a half billion dollars. I will repeat it. It is more than $47 billion versus the half billion dollars that the Senator from Michigan would strike from this program. So I don't think we need to worry about priorities. In fact, I think the money that would be taken from the Missile Defense Program, and could literally cripple it, is already covered; that is to say, each of the programs to which the funding is added are already covered. We have already increased spending on 6 of the 10 programs to which the money would go. The bill has already added to the President's requested levels only the following programs: cruise missile defense, $80 million; blast mitigation R&D, $10 million added; radiation and nuclear detection, $5 million; modeling and simulation efforts to increase capability of fielded chemical-biological standoff detection systems, adding $2 million; nonproliferation verification R&D, $25 million; aircrew masks, a half-million-dollar procurement in the chem-bio defense program. In all of the other programs and funding areas addressed in the Levin amendment, the committee provided the requested level of funding. So what the administration requested, the committee gave them. So they added to the request in six, and in all of the others they are getting exactly what they had requested. In one area, the NORTHCOM military assistance to civil authorities, NORTHCOM indicates that it has no responsibility in the area. For two potential adds, the execution of additional funding would be problematic. They probably could not spend the money. One is the Global Threat Reduction Initiative. It is a new NNSA nonproliferation initiative that was announced in May. They expect to fund it out of existing funds from the $87 million in fiscal 2005. An additional $211 million, as proposed in this amendment, would not be executable in fiscal 2005. They could not spend it. On radiation detection and training in megaports, additional funds cannot be executed until agreements are negotiated with other nations. NNSA doesn't expect that these agreements could be in place in time to use additional funds in fiscal 2005. The Department of Defense already has the flexibility with the funds requested within the budget to meet the high-priorities needs: antiterrorism/force protection training and exercises for the National Guard. These activities are funded through operation and maintenance, and the Department can already align the requested O&M funds to meet their needs. The bottom line is that the additional funding taken away from missile defense is not needed. The arguments for taking it away have already been rejected by the Senate in the Reed amendment. This is just another attempt to research missile defense to death and never build it. I encourage my colleagues to follow the good instinct that they followed with respect to the Reed amendment and reject this notion that we should not have more than the 20 missiles; that we don't need the additional 10 we are talking about here for operational testing because we do need to test against realistic conditions, and that is why we need to obtain the missiles and put them in these silos, and also because they just might be needed. For once, it would be nice for us to say that on our watch the missile defense that was announced 20 years ago has actually become a reality. It is not a perfect system yet by any means, and that is the whole point of this particular program--to begin the development and deployment and spiral that technology as it continues to evolve. That is a great idea. It is a great protection for the American people. Why would we not want to do it? With respect to the prioritization argument, I have already made it clear what we are spending on this. I didn't calculate the fraction, but it is a minor fraction of what we are spending on homeland security and on defense generally. I urge my colleagues, as with the Reed amendment, to reject the argument behind this amendment; reject the Levin amendment and support the committee, which worked very hard to put together a product of which I think the Senate can be proud, that the administration will support, that we can get passed in conference committee and sent to the President for his signature, so we can move forward this year and, for the first time, this fall actually have the beginnings of a missile defense system for the people of this country. They deserve no less. It is our obligation to see to it that it comes to pass. That is the conclusion of my remarks. I don't know if the Senator from Michigan wants to make further remarks at this time. I am going to want to proffer a unanimous consent request. At this time, I yield to the Senator from Michigan.

Mr. KYL. Let me first correct one thing I had said earlier. There were two Reed amendments, both of which were based on the same proposition with respect to operational testing. One regarding fencing we have not yet voted on, and the other one was rejected. To that extent I misspoke. Secondly, before I propound the unanimous consent requests, let me make clear to the Senator from Michigan, I am not yet aware of plans, as I answered my colleague. I think the Director of the Ballistic Missile Defense Organization is working on the plans. So I do not think any of us are yet aware of what plans there may be with respect to testing of these missiles. I do not think the plan is completed.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Monday, June 21, 2004 at 3 p.m. to hold a hearing on Nominations.

Mr. KYL. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Monday, June 21, 2004 at 10:30 a.m. to hold a hearing on Nominations.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the Subcommittee on Water and Power of the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Thursday, June 17, at 2:30 p.m. The purpose of the hearing is to receive testimony on S. 2513, a bill to authorize the Secretary of the Interior to provide financial assistance to the Eastern New Mexico Rural Water Authority for the planning, design, and construction of the Eastern New Mexico rural water system, and for other purposes; S. 2511, a bill to direct the Secretary of the Interior to conduct a feasibility study of a Chimayo water supply system, to provide for the planning, design, and construction of a water supply, reclamation, and filtration facility for Espanola, NM, and for other purposes; S. 2508, a bill to redesignate the Ridges Basin Reservoir, CO, as Lake Nighthorse; S. 2460, a bill to provide assistance to the State of New Mexico for the development of comprehensive state water plans, and for other purposes; and S. 1211, a bill to further the purposes of Title XVI of the Reclamation Projects Authorization and Adjustment Act of 1992, the ``Reclamation Wastewater and Groundwater Study and Facilities Act'', by directing the Secretary of the Interior to undertake a demonstration program for water reclamation in the Tularosa Basin of New Mexico, and for other purposes.

Mr. KYL. Mr. President, I ask unanimous consent that the Subcommittee on Science, Technology and Space be authorized to meet on Thursday, June 17, 2004, at 2:30 p.m. on the Final Report on the President's Commission on Implementation of U.S. Space Exploration Policy.

Mr. KYL. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on June 17, 2004, at 2:30 p.m. to hold a closed hearing on Intelligence Matters.

Mr. KYL. Mr. President, I ask unanimous consent that the Permanent Subcommittee on Investigations of the Committee on Governmental Affairs be authorized to meet on Thursday, June 17, 2004, at 9 a.m., for a hearing entitled ``Buyer Beware: The Danger of Purchasing Pharmaceuticals Over the Internet.''