Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, the second subject I address is a resolution the White House has sent Congress for consideration of Presidential authority to deal with the problem of Iraq. There have been questions raised this weekend about the language of the resolution and the need, in some people's minds, to define it and provide greater definition. My own view is the President and his administration did a very good job at crafting a resolution which will give the President the authority he needs to do the things we understand have to be done. I am a little worried about trying to be too cute in drafting language that will constrain the President in a variety of ways, not because we do not want to know what the President has in mind, but because we do not want to come back to the Congress every time the President needs some additional component of authority in fighting this war on terror. The immediate need is to grant the authority to follow up on the resolutions that were violated by Saddam Hussein, and that if the United Nations is not going to take action, and it is not, then for the United States to be able to do that. We will pass that resolution by a fairly wide margin both in the House of Representatives and in the Senate. I am hoping Members of this body will not view it necessary to draft the language in such a way that it puts the interests of the United States behind the authority of the United Nations. The U.S. Government and those who represent the people of America will act on behalf of the security interests of the American people. That ought to be our first objective, not to try to resurrect the good reputation of the United Nations, not to put the U.S. position in a subservient role to the Security Council of the United Nations, and not to subject our decisionmaking or the President's authority to act to approval first of a body in the United Nations. I therefore urge my colleagues not to succumb to the temptation of inserting language which would submit first to the United Nations and then the U.S. Congress. It was my understanding--perhaps I should have asked unanimous consent before I began to speak--that I would be allotted 20 minutes, 10 minutes beyond the usual time.

Mr. KYL. Might I then have 30 seconds to explain that I had been told that I would have 20 minutes, and I have calibrated my remarks to reflect that? I regret I will not be able to finish these remarks.

Mr. KYL

Mr. KYL. Mr. President, in the time I have this afternoon, I want to address three subjects. The first relates to an issue we are going to be taking up tonight, which is the cloture motion on an amendment relating to the Interior appropriations bill. The Domenici-Craig amendment dealing with forest health will go down if cloture is invoked. Therefore, I urge my colleagues not to vote to invoke cloture. I also acknowledge that the efforts to try to reach a compromise on how to protect our forests from disease, infestation, poor health, and fire have not borne fruit, and it is unlikely there will be an agreement reached in a bipartisan way sufficient to allow us to pass something that will provide relief to those, particularly in the West, who have forests that need this kind of treatment. That being the case, we are going to have to find another way to deal with the issue. The administration is committed to forest health. The President has laid out a plan, and I think administratively the Departments of the Interior and Agriculture will do the very best they can to work within the existing law to manage our forests to bring them back to health and to prevent fires. The reality is that this failure to reach an agreement will have disastrous consequences, not just in terms of fire but the health of our forests, particularly in the West, and that is not a situation we should be very proud of in this body. We tried very hard, particularly those of us who represent the Western States, to educate some of our colleagues about what we mean by forest management. There is not much debate in the scientific community about what ought to be done to our forests, maybe 75 million acres of trees. They need to be treated, and by that we mean there needs to be a process whereby the dead, dying, and diseased timber, as well as the very small diameter timber, is removed so the forest can sustain the larger trees we want to preserve and return forests to the healthy conditions they were in maybe about 100 years ago. This means opening up the canopies and providing more opportunity for grass. The trees that would be thinned would not only remove a source of competition to the larger trees in terms of soaking up the moisture and nutrients from the soil, but also providing fuel for forest fires which, instead of just creeping along the ground as they did 100 years or so ago, are now using these small trees to basically climb a ladder up to the crowns of the big trees. What we see on television, when we see the pictures of these enormous forest fires, is the canopies of the big trees literally superheating and then exploding into flame, and this is what spreads the fire for miles and miles. If the dead and dying fuel on the forest floor is removed, the down fuel as well as those small-diameter trees that are literally choking the forests to death right now, it is not only opened up for the trees and other flora and fauna that we want to grow properly but it also removes a significant fire danger. That is what the scientific community understands needs to be done. The problem is that there are radical environmentalists who do not want to see this done. Ironically, our goal is the same: To protect those beautiful big trees and to create a healthy environment for all of the other flora and fauna. But they are so afraid that a timber industry will be either preserved or regenerated, and that that timber industry will soon set its sights on cutting the big trees as well, that they are really willing to cut off their nose to spite their face; that is to say, to risk the health of the entire forest in order that a timber industry is not encouraged to take hold. In my State of Arizona, there is not any more timber industry, so we are not interested in bringing an industry back. It is gone. There are a couple of small mills that can take small-diameter timber and make 2 by 4's and fiberboard. The White Mountain Apache Indian Tribe has two small mills that can handle larger diameter timber which they cut on their reservation. But this is not about creating a timber industry in Arizona. It is not about logging. We are not going to have logging as we used to know it. It is about companies being permitted to do the Government's work of cleaning out the forests and making a little bit of profit. They are not going to do it for free. We do not have enough money in the budget to pay the cost of doing that. They have to be willing to do it for the small amount of money they can make on the products they are now permitted to sell. That is what this debate has been all about, and I am very discouraged that the radical environmental movement has such a stranglehold on some politicians that even though they will privately tell us they understand the scientists are right, that we do need to go in and manage our forests, they are not willing to confront these people in an open forum. It has been an interesting one-sided debate we have had in the Senate. No one has defended the other position. The reason is because it is indefensible. It boils down to a political issue. That is too bad for the forests. I understand what happens when we are not able to reach agreement. We are not going to be able to get 60 votes to carry the day. As a result, we have to find another way to do this. Therefore, depending upon what the assistant majority leader and others decide to do at the end of the day, that issue may well be behind us as of tonight as something we will deal with in the Senate. That is too bad. We should have been able to deal with that. I add a postscript before I turn to the next subject. Some on my side of the aisle have criticized the majority leader because he was able to secure in an appropriations bill special relief for his home State of South Dakota and the Black Hills by doing exactly what we are talking about, thinning those forests. He did that by, in effect, waiving all environmental considerations. In other words, the legislation provided the sufficiency for environmental achievement and nothing further was required to clean up these forests. There was criticism. I suppose one could criticize the use of the process in the way that he did but frankly, I cannot criticize what he was attempting to achieve and what will be achieved as a result of his actions. The Black Hills are some of my favorite forests in this country. I used to vacation there as a young boy. I love the Black Hills. I am glad the majority leader saw fit to save the Black Hills. I wish we could apply something close to that same management technique for the rest of the country's forests. I find it ironic people would permit it to be done in this one area, which I support, but nowhere else. I hope we can find a way to address this in the future, put the politics behind us, and get back to a scientific resolution of the issue.

Mr. KYL

Mr. KYL. Mr. President, I have checked with the Senator from West Virginia, who has indicated he does not wish to speak at this time, and therefore I will go ahead until one of our colleagues comes. I want to tell a couple of stories about what I have personally observed in our forests, and it might be of interest to others who perhaps do not have these same kinds of trees in their States. The country's largest ponderosa pine forest extends through the belt of Arizona that runs literally from the Grand Canyon all the way to New Mexico and then goes on into New Mexico. These trees look a little like the giant sequoias in California. They are not quite as big, but when they reach 300 or 400 years of maturity, they are very large, over 30 inches in diameter. They have a yellow bark with beautiful big canopies, much like the sequoias in California. These are the trees we are all trying to preserve. I went to an area that was BLM land north of the Grand Canyon after Secretary Bruce Babbitt, then-Secretary of Interior, had authorized a thinning project for that area in the neighborhood of Mount Trumble. Secretary Babbitt was able to do this because, as Secretary of the Interior, he had control over the BLM land, and he basically ordered that it be done, which was a good thing, too, because this is an area with which he was familiar. He had gone hiking throughout the area many times. He knew how desperately the area was in need of this treatment. So I went up there to see the work that was being done, and the BLM officer said: I have to show you this. Come look. And we drove to an area where it was just as thick as could be, with tiny trees about this size. There must have been thousands per acre. You could hardly wind your way through the forest. None of them was more than 15 or 20 feet high, if that. They were not very pretty. They precluded any grass from growing. There were no animals, obviously, that could wind their way through it. It was a pretty sterile environment, and they were obviously crowding out other kinds of trees that one would have preferred to see grow there. We came to this huge ponderosa pine, one of the biggest trees I had ever seen other than a redwood or a sequoia. The boughs literally came all the way down to the ground. All around this tree was this brush, these little scrub trees--maybe as tall as I am, maybe a little bit higher--with trunks 3 or 4 inches around. It was literally a tinder box. This BLM agent said: We have to clear this stuff away immediately. Any spark anywhere near here is going to set off a fire that is going to come all the way through. It is going to run right up the boughs of this tree and destroy this beautiful old tree. He told me there were many more in this same area, and that is why we had to hurry up and get this area treated. That is what we are trying to do. We are not going to cut that tree or any other trees that even approximate that size. The object is to clear out all the other stuff so these big beautiful trees can continue to grow in a healthy state, they will not have the competition for air and water and nutrients from all of these little trees, and there will then be grasses reintroduced, the animals can come up, as well as the birds and the butterflies. All of the studies by Dr. Covington that I mentioned earlier have demonstrated that the species come back within a year. The pitch content of the trees is enhanced significantly, so they are impervious to the bark beetles. The protein content of the grass is increased by an order of magnitude, so the elk and the deer come back. When all of the little mammals come back, then the hawks and the eagles come back, the butterflies begin to pollinate, and all of a sudden there are hundreds of more species of flowers and weeds and grasses than there were before, and there is a park-like condition where there are far fewer trees per acre but it is to the carrying capacity of the land. So there may only be 150 or 250 trees per acre at that point, but they are all beautiful trees that are going to be healthy and in an environment where the rest of the forests can survive as opposed to the kind of thing about which I was talking. Now why would people object to doing that? I had a group of environmentalists come into my office, and I asked them: Don't you agree that this is the right science? And they finally said: Yes. I then said: Why won't you do it? They said: Well, you do have to have commercial companies come in and do this thinning; right? I said: Yes, of course. And they do have to make a profit; right? And I said: Yes. And they are not going to work for free. They have to make some money. I said: You don't object to that, do you? They said: No, but what we are worried about is that 25, 30, or 40 years after all of this is done and you have treated all of the forests that need to be treated this way, then they will turn their chain saws on the big trees because they will want to save their jobs and save their mills and stay in business, and that is what we are concerned about. I was dumbfounded at the suggestion that that would actually happen. If all of us who want to save the forests are as concerned in 40 years as we are now--and there is no reason to believe we will not--none of that would ever be permitted to happen. This again falls into the ``cut off your nose to spite your face'' category. In order to achieve something good, we are going to have the potential of something bad occurring 40 years down the road, a potential that is so small that it is just unthinkable it would ever happen? But because of that little potential in their minds, they are going to prevent us from treating the patient now? It seems very illogical. It is like saying we are not going to treat the patient's cancer now because the patient will live but eventually the patient is going to die; therefore, there is no point in treating the patient now. It does not make sense to me, and that is why I think it is a shame we have not been able to reach some kind of agreement on the kind of plan we were talking about that would have limited the amount of acreage that would be treated. It would have limited it to those areas that are so-called class 3 areas, which are the ones most in need of treatment where the danger of catastrophic wildfire is the greatest. We are not even talking about the class 2 or class 1 areas, just class 3. Within that, it would be further limited in the legislation we have been discussing. We were even willing to limit it to areas of municipal watersheds and urban interface as long as those were broadly enough defined to include the kind of forests we are talking about here, the part of the area that needs to be treated. None of that was acceptable to those groups that do not want us to treat the forests. As a result, we are going to have another year pass, presumably, unless we are able to do something next spring, where we are subject to these catastrophic wildfires and the forest continues to deteriorate. At what point, do we finally say, it is worth it to go in and treat these forests? Since there is not enough money in the world to pay AmeriCorps volunteers to go in and do this by one-half acre at a time, we have to have commercial enterprises that are able to go in and take out enough product that they can stay in business. That product can be very small diameter product. It can be poles for construction of cabins. It can be 2-by-4-sized timber. It can be the chipped product that makes fiberboard. In some cases, they may get to medium-sized trees that can actually produce some timber. But if so, why not? If the carrying capacity of the acre is such that some of the trees should be removed, even the so-called medium-sized maybe even 15 or 20 inches in diameter, why wouldn't one do that if what they were leaving were still the very large growth trees we are all talking about protecting? Senator Craig made the offer that at least 10 of the biggest old- growth trees would have to be left. We can probably multiply that and say 100. The bottom line is, those are the trees we are trying to leave. So if the carrying capacity of the land will carry 100, 150, or 200 of those trees, that is how many would be left. Nobody is trying to cut the big beautiful trees down. In the areas Senator Domenici and I represent, it is a dry enough condition in Arizona and New Mexico that we cannot stand many more summers of drought before these forests are going to be all burned up. That is why we have been so disappointed at not being able to get into those forests now and begin this process of taking out the dead and dying timber and cutting out the small-diameter timber that is precluding the rest from growing. I saw the treatment area we have been experimenting with in Arizona. I saw the results of this thinning, and the species that have come back are just amazing--the birds and the butterflies and the wildflowers. It is incredible what can be done if this is actually permitted to go forward, and so I hope there is a way to do it. I regret we have not been able to find that way yet. I thank Senator Craig and Senator Domenici for their work, and I yield the floor.

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

Mr. KYL. Mr. President, I will go on to explore this a little bit more. One of the techniques of the opponents of what we propose is to say-- we all agree with the management. I have not heard anybody say they disagree with this thinning and prescribed burning management technique, but they want it done in an area called the urban/wildland interface; that is to say, where the forest meets communities--summer homes, small towns, so on. We will thin an area a quarter of a mile, maybe half a mile, around these communities and structures and, therefore, save them from catastrophic wildfire; that ought to do the trick. That will not do the trick. In the first place, it is a nice sentiment to try to save small communities and buildings, but that is only part of what we are about here. We are literally about saving the forests themselves, the entire ecosystem, the place where all the flora and fauna live and survive, where the endangered species live. Most of the endanger species do not live right on the edge of the communities. Why would we not want to create a healthy environment for the endangered species and for the other flora and fauna in the forests? Why would we not want to treat in the middle of the forest rather than just along the roads, by the homes or small communities? Of course, we want to save them from catastrophic wildfires, but the best way to do that is to treat the entire forest so the fires do not get a big momentum to roll into the communities. We had the unfortunate experience with the Rodeo-Chediski fire this last summer where the fire was so large and burning so rapidly with such intense heat that it was skipping right over areas that had been treated. While it did not burn those areas, fortunately, because they had been treated, it went on to burn other parts of the forest. It is no salvation necessarily that we treat a small perimeter around buildings or communities. That is not necessarily going to save them from fire. Even if it does, as I said, we still have not treated the rest of the forest, which is the whole object of returning health to the forest. That is why you cannot just limit this thinning project to the areas immediately surrounding communities. We will have done nothing to save the rest of the forest from insects, disease, mistletoe, and catastrophic wildfire that will destroy the trees and the habitat for the mammals, birds, insects, and the fish that live in the area we want to preserve. That is why it is no answer to say: Let's do treatment in the urban interface area. There were also attempts to put limits on how many board feet of trees could be removed from these areas--250,000 board feet in an area, for example; I think up to 1 million board feet in an area that had burned. The board feet of timber calculated to exist in the Rodeo- Chediski burned area is 100 million board feet. What was offered was literally a drop in the bucket. If we are going to salvage the timber that was burned, as the White Mountain Apache Tribe is permitted to do on its part of the forest that was burned, then we are going to have to have special relief because there is no time to do all the studies that are necessary if anybody files an appeal. If they do not file an appeal, then we can salvage that timber, just as the White Mountain Apache Tribe is doing. If someone files an appeal, there is no way to get to the timber before the insects get to it. That is the choice we have. That is why we were so anxious to get something done now instead of waiting. As I said, it does not appear we have reached a consensus to do that, and that is too bad because as the editorial I just put in the Record points out, we do not have time to waste. We have to treat these forests now or they will be subject to burning next year, and, in any event, we will not be able to save them from the diseases that have infected many of the forests today. If there are others to speak, I will be happy to relinquish the floor to them. In that regard, I suggest the absence of a quorum, but if no one appears thereafter for a minute or two, then I will reclaim the floor and speak some more. I suggest the absence of a quorum.

Mr. KYL. Mr. President, I see no one else in the Chamber to yield time, so I ask unanimous consent to speak an additional 5 minutes.

Mr. KYL

Mr. KYL. First of all, the discourse of the Senator from Texas has really pointed out the primary problems here. They are both political and substantive. The political problem is that there are those who have a different agenda than the President of the United States, who is simply trying to reorganize Government to deal with the threat of terrorism, to create homeland security for the American people. Instead of cooperating in that effort, there are those who would settle old scores, create new agendas, or add new things. Everybody's motives are pure in this. The problem is that by getting the legislation so complicated, so convoluted, and so loaded down with other things, they are going to destroy the original intent, which was to streamline the process and make it easier to deal with the threat of terrorists. My grandmother had great sayings, and one was: Too many cooks spoil the broth. It is not that we all should not have a hand in the drafting of the legislation, but I do think when you are trying to create something such as a new Homeland Security Department, you have to give some deference to the people in the executive branch who have painstakingly put this together, who have experience with making executive offices work, and to the President who has an idea of what he wants to do here. Instead, we have a lot of extraneous ideas floating around that I think, in the end, complicate it and add extraneous matters that don't have to be in there, such as Davis-Bacon requirements, which will add costs to construction. Ironically, they have the effect--I cannot believe this is the intent of the authors, but it has the effect of giving the President less power to deal with these problems than he has today. Right now, the President would be better off with the agencies as they exist, coupled with his authority, from an administrative or executive point of view, to move people around within those agencies; he would be better able to achieve his goals than by adopting the legislation that is before us. Let me point out a couple of other examples of why this is true. Senator Gramm had several examples in areas of the bill he was looking at. Let me refer to another area. For some time, there has been an appreciation of the fact that in dealing with border and immigration issues, we really have two separate types of issues, and while both are dealt with as a part of the Immigration and Naturalization Service, which is under the Justice Department, I think some consensus has been developing that, in some way, we need to separate the border control function, which includes entities such as the Border Patrol, and the investigative services, and so on. To separate those out--those are sort of law enforcement, border protection functions--to separate those from the more customer- oriented--I don't like that word, but that is the word in vogue now-- customer-oriented services of immigration visas, student visas, and the legal immigration into the country, in other words--there is some sense to that division of responsibility. This is something the President had offered. Initially, it looked as if the legislation that would be written here contained a version of that division of authority. But as it turns out, under the Lieberman proposal, it gets a lot more complicated than that. I don't know whether this is really intended, and there doesn't seem to be any particular rhyme or reason why it is done this way, but it ends up being convoluted, very complicated, unnecessarily bureaucratic, ineffective, and confusing at end of the day. Let me describe precisely what I am talking about. Division B of the Lieberman bill creates the Immigration Affairs Directorate. That includes all immigration functions of the U.S. Government. So far so good. Division A of the bill creates, among other things, the Border and Transportation Affairs Directorate. So far so good. That is supposed to be the entity that deals with the Border Patrol--basically controlling illegal immigration and terrorism threats on our border. Under the Lieberman bill, it goes off track right after that because this Immigration Affairs Directorate is supposed to handle the visas, citizenships--all immigration functions, including all immigration enforcement functions, intelligence, investigations, detention, Border Patrol, and border inspections. All of those are moved into this immigration affairs box. One might say: What is left in the other box? I cannot find much that is left there. The problem is, we thought we had a solution to a problem. I thought everybody agreed to it. Now we are going right back to the problem we had in the first instance by putting all of the law enforcement, antiterrorism, Border Patrol, investigations, detention, inspections--all of that--right back into the Immigration Affairs Directorate. One of the biggest priorities of the President, in addition to dealing with terrorism, in the homeland security bill is to streamline the process at the border. Coming from a border State, I can tell my colleagues this is critical, and it goes all the way from Customs, which has a significant responsibility here, to INS and all the related agencies. We have two somewhat contradictory needs that come together at the border. We have a big security need. We want to make sure no illegal immigrants, no illegal contraband, drugs, weapons, and the like are smuggled into the country. We saw recently how we were able to check out a ship that we suspected had cargo that was radioactive. It checked out OK, but we were able to have it stand offshore until we had an opportunity to run the equipment over it to make sure there was not a bomb or something radioactive on board. That happens every day at our land borders, at our seaports, and at our airports many hundreds of times--in fact, thousands of times. There is specialized equipment to make sure nothing is brought in that should not come into this country. That is critical to both the security of the country from a terrorism standpoint, as well as a law enforcement standpoint. At the same time, we want to enhance commerce. We do not enhance commerce by having long lines of trucks or cars or people waiting to be checked out before they can come into the country. On my border in Arizona, we have a huge problem with long lines, with trucks having to literally park on the Mexican side of the border and wait overnight to come through customs. That is detrimental to trade, commerce, to people and their lives. I was reacquainted with a former staffer from Tucson, AZ, whose family lives in both Nogales, AZ, and Nogales, Mexico--two towns on either side of the border. She told me how hard it was going back and forth visiting family and friends. She had to wait in line literally hours. Therefore, we have these two competing needs, and we have to streamline the process. Kudos to the Bush administration. They were coming up with a lot of good ideas about how to expedite the process of crossing for family and trade, while also making sure that we protect against contraband, illegal immigration, and terrorists entering the country. The Lieberman bill, by contrast, gets us all the way back to where we started by refusing to move the enforcement function out of the immigration affairs box and into the Border Affairs Directorate where it belongs. Instead of streamlining our activity at the border, I fear it will be the same mess it has been in the past. I hate to describe it that way, but that is exactly the way it is. The administration's proposal, by contrast, created this separate Border Transportation Protection Directorate, and that is where all of the Border Patrol activity, investigations, and the like, is embodied. As I said, under the Lieberman bill, all of that has been put into this immigration affairs box. At the very least, it seems to me the Border Patrol and border inspections functions should be included in the border and transportation affairs box. One might ask: Can't reasonable adults work on this and get this straight? We have tried. What I am saying, Mr. President, is there will be a substitute offered. Senator Gramm has mentioned this, as has Senator Thompson. The substitute is a compromise of what the President proposed and features of the Lieberman bill and, I suspect, also features of the Byrd amendment. I believe this issue is pretty well straightened out in this compromise substitute that is going to be offered. It puts most of these functions that are law-enforcement-related functions, the antiterrorism-related functions back into the right box. If we do not do this, the bottom line is security is going to be compromised. This is not something that is irrelevant and unimportant. It is very important to the whole purpose of developing the homeland security bill. One might ask why this border transportation affairs box was created. What is left in it? The primary function that is left is Customs. Yet it describes the Customs Service still as a separate entity. So I am not exactly sure how that is going to work. Presumably, Customs will continue to operate almost independently from the Under Secretary of the Border and Transportation Directorate, which is not what was intended. It has the Coast Guard. Again, that is deemed a distinct entity. And it has the Animal and Plant Health Inspection Service and the Federal Law Enforcement Training Center, but the Federal Law Enforcement Training Center trains what? Border Patrol agents. We have a division there that does not make sense at all. This is very confusing, it is unnecessarily complicated, and it is just another example of what Senator Gramm was talking about. Let's get back to the simple, direct approach that has been presented by the administration. That is a much wiser approach. It moves all the immigration affairs, with an emphasis on the importance of immigration services, to the Border and Transportation Protection Directorate, and it sends a message that we are serious about streamlining all of our activity at the border, whether it be the immigration-related activity or the law enforcement activity, and still effectively fights terrorism. Let me mention one other problem before I finish. It is a related problem with this division B, the immigration affairs. It has language included which would abolish the Executive Office for Immigration Review and create within the Department of Justice what amounts to an independent agency for immigration judges. Immigration law is complicated enough. There are a whole series of precedents. There is a process by which you have a decision made, a review of that decision, and eventually the final review all the way up the chain in the Department of Justice by the Attorney General of the United States. There is a body of case law built around this. There are procedures that are built around it. As far as I know, those procedures are working. I do not know of any reason, for homeland security, why we would want to change that. This legislation fundamentally alters the INS administrative process. It seems at the very least the language, which designates when and how this new Executive Office for Immigration Review operates, needs to be changed so the checks and balances that exist today in the Department of Justice will either continue to exist there or in the new Homeland Security Department. Unfortunately, this simply has not been written in a way that will guarantee we have the same kind of review and fairness and justice in the immigration process. There are other things. I have a 5 o'clock engagement, so I am not going to go into more detail at this time. As I said, I do not question at all the motives of those who come up with different ideas on how to do different functions. The problem is we all have our own wonderful ideas about how everything should be fixed, and if we try to do that all in the homeland security bill, we may be biting off more than we really need to chew. We may need to get back to the basic task, which is to ensure we can protect against terrorism and have real homeland security and have a reorganization of Government that enables us to do that and not take on every other issue that people have that they have wanted to deal with and settle up over the years and use this bill for the opportunity to do that. Those things that work well enough the way they are, leave well enough alone. But with respect to this question of border security, I think we have to pay a lot of attention to the experts who have suggested it is critical the emphasis on border security be recognized and that we understand what happens when we put the group of people who do that work in a box or a division or directorate which has other responsibilities. This is arguably one of the most critical functions of the reorganization of homeland security, and we have to get it right. I am hoping my colleagues will consider, when we offer the substitute that I believe fixes this and gets it back more to the original intention, that whatever else they may think about aspects of the Byrd amendment or the Lieberman bill, they will recognize this is an improvement and support that feature of the substitute.

Mr. KYL

Mr. KYL. Let me now discuss one of the concerns that has cropped up during the discussions about the kind of legislation we want. There are those organizations in the environmental movement that understand there is too much public opinion in favor of doing something to manage our forests now because of this wildfire season, this catastrophic fire season. They understand they have to make some concessions. They have concluded that the best thing to be for is what they call urban/wild interface management. What that is supposed to mean is that you can go in and thin the areas right around communities and right around people's expensive million-dollar summer homes, and the like, but you cannot go out into the forests themselves. We will put up the chart that shows the class 3 lands. The problem is, first of all, it treats very few acres. This will illustrate the point. We don't have very many communities in these forests. There are five or six little towns in this whole area here. To do urban/wild interface management alone, by going out a half mile around the city limits of those little towns, is going to do nothing to enhance the environment in the rest of the forest. It will do nothing to protect the habitat of the endangered species out there. Actually, it does very little to protect the communities themselves. The Rodeo-Chediski fire--and I will show you the chart later--burned with such ferocity and intensity that the small areas that had been treated provided little or no protection. It was only the areas where there had been a larger area of treatment that were protected as a result of the fire. I can tell you, while the fire was still burning in the eastern area, we helicoptered up to the Rodeo-Chediski lookout and we drove about another 2 miles on a road that divided between an area that had been treated--that is to say, there had been thinning, and I believe prescribed burning in the area as well, and on the other side of the road it was not treated. The side that was not treated looked like a moonscape. There was no living thing. Every tree had all of the branches and pine needles burned off--nothing but ghostly, ghastly sticks. On the side that was treated, you could hardly see that a fire had gone through there. It laid on the ground, and it burned itself out. It was in a large enough area that it did not burn in that area. Unfortunately, where you had just a thin, light, little strip of a quarter mile or half mile, the fire jumped right over it. I saw that as well in different areas. Part of the problem is a phenomenon that exists particularly in the West, where you have dry, hot conditions on the ground. The fire crowns out, as you have seen on television, and these massive spires of flame go 100, 150 feet in the air, which creates a plume of high, hot air, smoke, ashes, cinders, carried upward, and it looks like a mushroom cloud from an atomic kind of explosion because the column of hot air rises like this and it creates a mushroom effect. It gets up into the cooler atmosphere, 15,000, 20,000 feet, and it cannot rise any more because the heat doesn't sustain it. The cool air dampens it down and begins to create condensation. Eventually, the weight of the plume that has risen is greater than the capacity of the hot air to sustain it and it collapses. The firefighters call it a phenomenon of a collapsing plume. What happens then is the whole thing comes crashing down, creating a huge rush of air down on the ground, which pushes out all of the hot cinders, sparks, smoke, and ash out, like this, for 2 or 3 miles. That happened many times in the Rodeo-Chediski fire. I witnessed the creation of one such plume in an area of Canyon Creek, where I have been hiking and camping. It was devastated by this fire. So it doesn't do you any good to create a bulldozer kind of a firebreak, or a quarter of a mile or half mile of thinning, if the fire can spread with such ferocity. That is what happened over and over in this particular fire. Let me explain that, notwithstanding the fact that there had been some treatment around some of our communities. Just stop and think about this for a moment. About 30,000 Arizonans had to pick up everything they had within about a 6-hour--I forget exactly how many hours of warning it was, but it was very few hours. They had to pick up what they could in their pickup trucks and cars and find somewhere else to live for the next 2 weeks. Show Low, AZ, is a town of over 20,000, 25,000 people, and in Pinetop and Lakeside and McNary, a few smaller towns, they had all had to leave. They could not go back in for anything. A few people tried to feed livestock and keep horses and cattle and pets alive, but a lot was lost when these people had to be gone for 2 weeks. Just think of having to leave your home and not knowing whether it was going to burn or not. Some did burn, but the towns were saved. Interestingly, one of the reasons Show Low was saved was that a canyon to the southwest had been treated. It had been thinned, and there had been prescribed burning in that area I believe 2 or 3 years before; I have forgotten exactly how long before. When the fire hit that area, the combination of that plus the backfire they lit in this particular canyon prevented the fire from reaching the outskirts--it reached the outskirts but prevented the fire from burning the town of Show Low. Think about that. What we need to do is not treat quarter-mile or half-mile or even mile-long strips of property around fancy summer homes or small communities but, rather, treat the forest itself--as much as we can treat, as quickly as we can treat it. Only in that way will we get the environment back to the healthy state it was. Only by treating large areas of the forest will we be able to return it to the status shown on this chart, where the small mammals will have a place to graze, really small animals will have a place to hide from the hawks, which will have a place to get the small mammals. We will have the birds, the butterflies, and more introduced as a result of this kind of treatment. I mentioned before the issue of salvage timber. There is objection even to going in and cutting down the trees. I will show a chart of these trees. This is a huge amount of timber that could be salvaged as a result of the fire. In this kind of landscape, we need to cut some of the trees to lay it down and stop some of the erosion which inevitably occurs because of this kind of fire. It will enhance the regrowth of that area. Even seeding and planting does not do any good because the water washes all that material into the streambeds and it does not take. This is timber that has a huge amount of value if it is able to be removed quickly, but disease will set in and deterioration will occur within a few months. If it is not removed in a 12-to-18 month period, it is lost. This is one way to help pay for what we are trying to do. Rabid, radical environmentalists do not want to even salvage that timber. Why? Again, because it will actually provide some jobs for the commercial timber industry and the mills that would mill the trees into lumber. They do not want them to be in existence because they then pose a threat to the rest of the forest. That is their logic. It is amazing logic. Most of the Rodeo-Chediski fire was not on Forest Service land. Sixty-some percent was on the White Mountain Apache Indian Reservation. One can see on this chart the area of the fire. The green area is the Apache-Sitgreaves National Forest, and the yellow area is the Fort Apache Indian Reservation. The White Mountain Apache Tribe relies a great deal on the revenues of its timber operations to sustain its tribal operations. In fact, it is the tribe's biggest source of revenue. Also significant to the tribe is the revenue it derives from the hunting that it permits on its land. The White Mountain Apache Tribe for decades has been very smart about how they have managed their forests. They understand that if you are going to have wild turkey, if you are going to have bear, if you are going to have wildcat, huge elk that people are willing to pay $10,000 to hunt, if you are going to have that kind of wildlife that will bring in these kinds of trophy hunters who will pay the tribe a lot of money to hunt on the reservation, then you have to do a couple of things. First, you can only take out the number of animals necessary to keep healthy herds, a healthy group of bear or lion, or whatever it might be. So they take out very few of those animals, just enough to keep the forest ecosystem in balance. Second, you have to have a healthy forest. You have to have a forest that is not all grown over in this dog-hair thicket environment but, rather, the more open forest that I showed before. The reason is that these elk have to have grass on which to graze, as I said. You are not going to have an environment where the lions are going to be able to go after the smaller critters because there will not be any small critters if they do not have places to forage and places to hide. The White Mountain Apache Tribe has been very smart about the way they have managed the forests. They have not been subject to the same restrictions as has the Forest Service. They have been able to do more prescribed burns. They have been able to do thinning and utilize that small-diameter timber in their mills, and they have taken out modest amounts of medium- and a little bit of larger diameter timber as well. Some environmentalists say: You cannot do that; there has to be a diameter cap of 20 inches, 16 inches, or some number. The tribe has not been subjected to that. It has asked itself the question--it is the type of question experts, such as Wally Covington from Northern Arizona University, ask: Not to define old growth or diameter cap, but take a look at the area and determine its carrying capacity. What will this particular area carry? What did it carry 100 years ago in terms of the kinds of trees, and other growth, and the number of trees? When one determines that, then one knows what kind of treatment is called for. In some areas, you are going to cut all but 150 trees, leaving mostly large trees with a few more intermediate-size trees. In other areas, you may cut less. It may be that an area is so full of medium-size growth trees, let's say 20-inch diameter trees--you may be taking several of those out or maybe quite a few of those out. It does not mean you are harming the environment. It means you are reducing the number of stems to the carrying capacity of the land so it can rejuvenate, so it can grow back, and the trees left will be the magnificent trees we are trying to preserve. We will have grass and all the rest that is necessary for healthy flora and fauna. That is the idea of this treatment. Over the years, the Apache Tribe has done a good job managing their forests. As a result, they have had less of a problem with fire. There are several different areas that have been treated, and in the bear report that followed the devastating fire, there is quite a bit of discussion about the kind of timber that was lost, the areas that were not as heavily damaged, and a discussion of the areas preserved, by and large, because they had been treated in the past. I find it interesting, by the way, and I am going to digress here-- let me make this point. We need to help the Fort Apache Tribe salvage the timber that is salvageable in this area. They do not have the capacity in their mills to do it, but they can mill some of it and then sell some of it to others. They have to get to it right away. They are making plans to do that. They need about $6.7 million to complete this project. I hope we will be able to provide that to them and it will help sustain the reservation. As to the Forest Service, there are objections already to salvaging the same timber. We do not know where this boundary is when we are on the ground. It is all the same. Why the Apache area can be salvaged but not the Forest Service area I cannot explain. Nobody can rationally explain it. We need to salvage there as well. Yet there are those who object to any opportunity to salvage this timber. One of the ideas for legislation was to have an opportunity to complete some stewardship projects or enhanced value projects that would in a temporary way--maybe over a 3-year-period of time, for example--treat areas of the forest that have not burned to see how well this kind of management worked. This has been tried in the past. One of the cases is the so-called Baca timber sale. When we talk about timber sales, some of the more radical environmentalists get all upset because we are actually going to sell some timber to a mill that can mill it into lumber and build homes and lower the price of homes, by the way, so we do not have to buy all the timber from Canada at higher prices. This Baca timber sale was proposed in 1994 to reduce hazardous fuels both in the interface and to improve forest health. It followed 5 years of planning and public participation. All the stakeholders were involved. But environmentalists appealed and litigated the case for 3 years. The Baca timber sale was in this area. When the Rodeo fire went through that area, it burned about 90 percent of the proposed area. An area that could have been treated, that could have been made healthy, that the fire would largely have skipped around, was left to be ravaged by this catastrophic fire. The same environmental groups currently threaten lawsuits that would prevent the restoration of this area, which is why I mention that. I ask my colleagues, when are we going to say we are no longer going to be jerked around by the radical environmentalists' agenda to destroy the commercial timber industry so they never have to worry about any big trees being cut, in the process permitting the forests to burn, destroying the habitat, endangering lives, burning homes, and burning up the same trees they want to save, as well as the environment for the species? I mentioned before some of the species. The goshawk is an example. In 1996, the Forest Service proposed a project to thin near the nest of the goshawk, partly to reduce the fire hazards that were presented to the goshawk. These radical environmentalists appealed. That year the fire burned through the forests, including the goshawk nest. That is what happens when irresponsible environmentalists have control. What does the control result from? It results from the fact we have a legal system that was designed to provide the maximum environmental input into decisions about abuse by some of the radical environmental groups. Let me cite some statistics from a report released in July by the Forest Service that covered the appeal and litigation activities on the mechanical treatment projects during the last 2-year period. Out of 326 Forest Service decisions during this study period, 155 were appealed, more than half; 21 decisions that were administratively appealed ultimately led to Federal lawsuits. What happens with the lawsuits? You get an injunction which prevents you from moving forward with the project. In many cases either it burns while the project is pending or the Forest Service decided to move on rather than fight the appeal. The appeal, therefore, goes away, the work never having been done. In the southwestern region of Arizona and New Mexico, 73 percent of all treatment decisions were appealed. Nationwide it was almost half-- 48 percent of the project decisions in fiscal year 2001 and 2002. Again, 73 percent in our area were appealed. We cannot operate that way. The Forest Service is spending half of its budget preparing for these projects and fighting them and doing the work in litigation and on appeals to respond to the environmental community activity. About half of their budget is spent directly fighting the appeals, dealing with the injunctions, or preparing the projects in such a way as to be immune from this kind of litigation, which almost inevitably appears anyway. On administrative appeals alone in 1999 through 2001, in Arizona-- just one State--environmental groups filed 287 administrative appeals; 75 of these were filed by two groups that are very active. In litigation in the last 5 years, the Sierra Club and the Center for Biological Diversity litigated 11 projects in Arizona and in 10 years litigated 17 projects, including the Baca timber sale which was 90 percent burned while on appeal because of the litigation that ensued. This is what has to stop. The administration, President Bush, has visited these areas and has concluded that the best way to try to deal with this problem is to keep the environmental laws in place so there is never any question about the application of the proper standards for the projects that are developed but to make it more difficult for those who are appealing for the sake of delay, to delay projects to the point they are no longer worth proceeding. In other words, move the process along. The President's idea is you still have to have sales or projects that comply with the NEPA process where there is environmental review by the State holders, but you cannot get a temporary restraining order or preliminary permanent injunction in court unless the court decided the case and imposed a permanent injunction on the sale, but you could not go in advance and get that injunction, which is frequently what happens today. In addition to that, the administrative appeals would be reduced or eliminated for certain sales. If you want to file suit, you can file suit and go directly to the judge. The hope would be that the judge would decide the case quickly and therefore either the project moves forward or it doesn't, but everyone knows they can move forward with alternative plans if the project cannot move forward. It seems to me on a trial basis, a limited basis, that would make sense. What we proposed was we limit this proposal to class 3 areas--in my State of Arizona it would be only the red areas--that we limit it in time to maybe a 3-year authorization so we see how it works. If people do not think it works, we do not have to continue it. And that we limit the amount of acres that would be treated--maybe 5, 7, or 10 million acres per year, something like that. That, obviously, could be negotiated. And you would limit the way in which the appeals could be brought and have no temporary restraining order or preliminary injunction to be able to stop a particular sale. There would also be no limitation on the salvage projects I mentioned before. Now, would these projects be logging? Would they be clearcut, et cetera? Of course not. First, they would have to be pursuant to the plans that have been developed by the forests. All of these regional plans have long ago discarded any kind of clearcut cutting. They have basically adopted the management theory of reducing the small diameter underbrush and small diameter trees, leaving, by and large, the larger older trees that we want to preserve. Those are the plans in place now. They are the plans that would be proposed. If there is any plan that is not consistent with that, obviously, people could file a lawsuit and they could go to court and say, judge, this is not consistent with what we had in mind. And the court, of course, could say, that is right. If the proper environmental analysis had not been done or was inconsistent with the plan, the project could be stopped. That is what we are proposing. As I said before, we have been in negotiations with our friends on the other side of the aisle. I mention in particular Senator Feinstein from California has been very helpful in trying to find some middle ground, to craft a plan to permit us, over a very short period of time, to be able to treat a small amount of acreage and see how well it works. If it works well, perhaps we could go on from that. We got to the point of having a 1-year authorization, with 5 or 7 million acres maximum to be treated. It would be limited to this class 3 area. And a high priority would be given to urban wildland interface and to municipal watershed areas. Even that has not been accepted. The question is whether or not we are going to be able to reach an agreement that permits us to fairly quickly pass an amendment, have it adopted and sent to the other body so we can begin negotiation for a conference report that enables us to send something to the President and begin treating these forests or whether we are basically going to be in a stalemate or gridlock with the two different camps in the Senate, neither one having the votes to prevail, with the result that nothing comes out of this legislative session and we will be left with an opportunity missed, and a heightened risk for the forests that we want to preserve. That is the choice before the Senate. I call upon my colleagues who have been working on this to try to find a way to enable us to be able to treat some of the acres in good faith, and see how it works, and if it does work well, as we predict it will, to enable us to expand that to the roughly 30 million acres that the General Accounting Office said we need to treat or else see burned. Those are the stakes. I call upon my environmental friends, who are mostly concerned about protecting these areas of the forests, to think about the priorities. Do we want to protect the habitat for those endangered species that we all would like to preserve? Do we want to protect the habitat for all the other flora and fauna? Do we want to have a healthy forest or do we want, in effect, to let it go to seed, risking catastrophic fire, disease, and insect devastation which will not protect the environment but will destroy it for all the purposes I mentioned before? That is the choice before us. It seems to me there is no better time to act and, in fact, this may be the last opportunity to act this year in order to achieve this result. I urge my colleagues to find this compromise; if not, to support the kind of effort I propose that is a limited project with very tight constraints--in effect, a pilot or demonstration project to see if we can make this kind of forest management work. I thank my colleagues for their indulgence.

Mr. KYL. Mr. President, I would like to speak directly to the issues raised both by the majority leader and the Senator from Montana; specifically, with respect to how we are going to resolve issues related to the health of our forests. I know the discussion has greatly focused on fires and the catastrophic results of fires this year. I am going to talk about that to a great extent. But I would like to make a point at the very beginning which I hope we don't lose sight of; that is, fire is merely one component of the problem we have to deal with. What we are really talking about is the health of our forests, both for the protection of people from catastrophic wildfires and also for the ecological benefits that a healthy forest provides. It provides wonderful recreation for our citizens. It provides habitat for all of the flora and fauna we not only like to visit and like to see but to understand that it is very important for ecological balance in our country. It protects endangered species. It provides a home for all of the other fish, insects, birds, mammals, and reptiles we would like to protect, whether they are endangered or not. In order to have this kind of healthy forest, we have come to a conclusion, I think pretty much unanimously in this country, that we are going to have to manage the forest differently than we have in the past. What the debate is all about is how the Congress is going to respond to this emergency, not just from the catastrophic wildfires but from the other devastation of our forests that has created such an unhealthy condition that it literally threatens the health of probably somewhere between 30 and 70 million acres of forest land in the United States. The administration has come forth with a far-reaching proposal that will begin to enable us to treat these forests in a sensible way. We have legislation pending before us--an amendment by the Senator from Idaho--that was put in place as a means of being able to discuss this. And we have been trying, over the course of the last week or so, to negotiate among ourselves in the Senate to be able to come to some conclusion about what amendment it might be possible to adopt as part of the Interior appropriations bill so that it will be easier for us to go in and manage these forests. I am sad to say that so far our efforts at negotiation have not borne fruit. I think, therefore, it is necessary today to begin to recognize that unless we are able to reach agreement pretty soon, we are going to have to press forward with the kind of management approach that I believe will enable us to create healthy forests again. Let me go back over some of the ground that has been discussed but perhaps put a little different face on it in talking about my own State of Arizona. Some people may not think of the State of Arizona as containing forests. They may think of it as a desert State. The reality is, a great deal of my State is covered with some of the most beautiful forests in the entire United States--the entire world, for that matter. We have the largest Ponderosa pine forest in the United States. Ponderosa pines are enormous, beautiful trees, with yellowing bark. It is not uncommon at all for them to have a girth of 24 inches and above in a healthy forest. They are a little bit like if you want to think of the sequoia trees in California--not quite as big but coming close to that kind of magnificent tree. One hundred years ago, the ponderosa pine forests in Arizona were healthy. These trees were huge. They were beautiful. There were not very many per acre; and that, frankly, was what enabled them to grow so well. They were not competing with a lot of small underbrush or small trees for the nutrients in the soil, the Sun, the water, which is relatively scarce in Arizona, and they grew to magnificent heights. Several things happened to begin to change the circumstances. First of all, loggers came in and, seeing an opportunity, cut a lot of these magnificent trees. Secondly, grazing came in, and all of the grasses that grew because of the meadow-like conditions in which this forest existed were nibbled right down to the base in some cases. A lot of small trees, therefore, began to crop up and crowd out the grasses, and pretty soon there was not any grass. There was simply a dense undergrowth of little trees that began to crowd out what was left of the bigger trees, as well. Then came the fires because these little trees were so prone to burning. It is a dry climate. They are crowded together. Instead of having maybe 200 trees per acre, for example, you might have 2,000 trees per acre or more. But they are all little, tiny diameter trees that are very susceptible to fire. And the big trees that are left, of course, are susceptible to fire as well because when the lightning strikes, it sets the small trees on fire, which then quickly crown up to the larger trees, creating a ladder effect, going right on up to the top of the very biggest trees. It explodes in fire, as you have seen on television. That kind of environment is what we are faced with today. The old growth has come back. We have some magnificent, big trees, but they are being crowded out by all of these very small-diameter trees and other brush and other fuel that has accumulated on the forest floor. So what happens when there is a fire--whether man set or lightning created--is that the fuel begins to burn. It burns quickly just like a Christmas tree, if you can imagine, if you have ever seen a Christmas tree burn. It quickly burns the smaller trees and underbrush, and then catches the branches, the lower branches of the bigger trees, and then crowns out, and then you have a big fire. What is the result of the big fires in Arizona this year? First of all, we can talk about the size of the fires. We can talk about the size of the Rodeo-Chediski fire in Arizona. It was about 60 percent the size of Rhode Island. This is simply one fire. You can see from this map the size of the Rodeo-Chediski fire. Here is the size of the State of Rhode Island. If you add in other fires that have occurred in Arizona this year, you have a size that exceeds the size of Rhode Island. That is in my State. That is how much has burned in my State-- about 622,000 acres in this fire alone. Let me show you what it looks like after that burn. And I have been there. I have walked it. I have driven through it. I have seen it from the air by helicopter. It is a devastating sight. Here it is, as shown in this photograph. The ground is gray. It burned so hot that it created a silicone-like glaze over the soil. And, of course, it just absolutely takes all the pine needles and branches off the trees, so all you have are these sticks left standing. Some of these, by the way, are pretty good size trees. And there is salvageable timber in here if we are permitted to go in and do that salvaging. But because of the glaze over the soil, the report from the experts in the field is that when the rains finally began to come, it did not soak into the soil; it ran off. And what you now find throughout the central and eastern part of Arizona is massive mud flow into the streams. It kills the fish. It makes the water unpalatable. It devastates the free flow of the water, so it creates new channels and erodes the soil. It goes around bridges, and there is one bridge that was very much in danger. It flows into the largest lake in the State, Lake Roosevelt. And Roosevelt Lake is the biggest surface water source of water for the city of Phoenix and the other valley cities. There has been great concern that mud flow will affect the water quality and the water taste, as well as damaging the environment for the aquatic life in the lake and in the other streams. There are some other sad things about this fire. Just to mention some of the devastation, the total of this fire was about 468,000 acres burned. The total in Arizona is about 622,000 acres. The structures burned in Arizona were about 423, the majority of which were homes and some commercial structures. In the United States, this year alone, we have lost 21 lives as a result of the wildfires, and over 3,000 structures. The impacts on our forests in Arizona, the old growth trees will take 300 to 400 years to regenerate--300 to 400 years. To have a tree of any good size takes at least 100, 150 years. We have endangered species in our forests, the Mexican spotted owl, for example. The fire burned through 20 of their protected active centers. So I think those who claim to be environmentalists, who want to protect a forest by keeping everybody out of it, and rendering it subject to this kind of wildfire have a lot of explaining to do when 20 of these protected centers for the Mexican spotted owls were ruined, devastated, burned up in this fire. The recovery time for this habitat is 300 to 400 years as well. Twenty-five goshawk areas--this is another one of our protected species--and postfledging areas were impacted or destroyed. Wildlife mortalities--and these are just those that were actually documented--46 elks, 2 bears, and 1 bear cub, and, of course, countless other small critters. I think it is interesting that air quality is something that is frequently overlooked when you think of these fires. I was up there. I know because I had to breathe it. But just one interesting statistic is that the greenhouse gases from the Rodeo fire emitted during 1 day-- just 1 day of the fire; and this thing burned for 2 to 3 weeks in a big way, and then longer than that in a smaller way--but 1 day's emissions of greenhouse gases from the Rodeo fire surpassed all of the carbon dioxide emissions of all passenger cars operating in the United States on that same day. So if we are really concerned about greenhouse gases, just stop and think, all of the emissions from all of the cars in the United States did not equal 1 day's worth of emissions from this one fire. Of course, there were a lot of other fires burning in the country as well. Let me try to put this in perspective in terms of the amount of area of Arizona that is subject to this kind of fire. We have about 4 million acres of forest in Arizona that is classified as condition 3. That is about one-third of all the forests in Arizona. Condition 3 is the area that is in the most danger of catastrophic wildfire. Here is a State map of Arizona. And the area in yellow is pretty much the forested area of our State, with the area depicted in red the class 3 area. So you can see that a great deal of our ponderosa pine forest here is in very dire condition and needs to be treated as soon as possible. The Grand Canyon is right here. You can see on the north rim, there are significant areas that need to be treated. Over here, near the Navaho Indian Reservation, there are areas that need to be treated. Flagstaff is here; you can see the mountains that rise over 12,000 feet just north of Flagstaff. Those areas are very much in danger. You have the Prescott National Forest, Coconino National Forest, the Tonto National Forest. The Apache Indian Reservation is probably the largest. This area is the watershed for Phoenix, the Gila River and its tributaries. It provides a great deal of the surface water for the city of Phoenix and surrounding areas. These are beautiful mountain areas with a base elevation of over 7,000 feet. This area over here is 9,000 feet. The mountains rise over 11,000 feet, covered with ponderosa pines, spruce, fir, aspen, and others trees. All of this area is in grave danger of beetle kill disease, mistletoe, wildfire, and being weakened and dying from insufficient nutrients and water because of the condition of the forest. It is a very matted, tightly packed forest with all of the little diameter trees literally squeezing out the big trees that we all want to save. It is called a dog hair thicket. It is so thick that a dog can't even run through it without leaving some of his hair behind. Let me show you an example of what the forest used to look like and how it looks today. On the top you see a photograph of 1909. You can see these beautiful big ponderosa pine trees. There are some smaller ones back here. You have different age growths, and that is the way you like to have a forest so as the big ones grow older and die, there are others to take their place. You see a great deal of grass, sunshine, open space. You can imagine this is a very healthy forest because you don't have too much competition for what the trees need to grow. It is also a wonderful environment for elk and deer and butterflies and birds. It is open. You have plenty of grass for forage and so on. This is the same area in the year 1992. This is the way much of our forests look today--absolutely dense, crowded. I am not sure if the chart is observable here, but you can see that the forest is now very crowded. Here you have beautiful, large ponderosa pines, a couple more back here, but they are being squeezed out by all of the smaller diameter trees. What we are talking about in management is not cutting the big trees, not logging the forest. We are talking about taking out the bulk of these smaller diameter trees that are not doing anybody or anything any good and are clogging up the forests, preventing the grass from growing. They are ruining the habitat for other animals and creating conditions for insects, disease, and catastrophic wildfire. For those who say we don't want to go back to logging, nobody is talking about that. We are talking about saving these big trees, not cutting them down. The problem is, a lot of the environmental community is in total concert with this general management. But you have a very loud, activist, radical minority that is so afraid commercial businesses will want to cut large trees, that they want to destroy any commercial industry. In the State of Arizona, there is essentially no logging industry left. We have two very small mills, and the Apache Indian Reservation has two mills. The Apache Reservation I will get to in a moment because that is where the Rodeo-Chediski fire occurred. What we are talking about here is having well-designed projects, after consultation with all of the so-called stakeholders, with the Forest Service having gone through all of the environmental planning and designating projects, stewardship projects with enhanced value so that they can go to these commercial businesses and say: Can you go into this forest and clean all of this out and make it look like this? Whatever you take out of here that we mark for you to be able to take out, you can sell that. You can turn it into chipboard, fiberboard. You can turn it into biodegradable products for burning and creating electricity. You can perhaps take some of the medium-size trees and get some boards out of them, maybe some two-by-fours. Can you make enough of a profit to do this for us because there is not enough money for us to appropriate to treat 30 or 40 or 50 million acres? We are talking about a lot of money we simply don't have. You have to rely upon the commercial businesses to do that. Some of the radicals are so concerned that when they are doing this job for us, they will say: We don't have anything more to do; we want to take the big trees. And they are concerned that we won't have the ability to tell them no. Therefore, they are going to prevent us from cleaning up the forest for making it healthy again. They will create a condition that results in the catastrophic wildfires I was talking about; in effect, cutting off our nose to spite our face. We are not going to do what everybody recognizes needs to be done because maybe when that is all done, 40 years from now, somebody will say: We want to go after the big trees. Does anybody believe the political environment in that setting is going to permit us to do that? None of us are going to agree to that. I don't agree to it today. Let me tell you a story. Former Secretary of Interior Bruce Babbitt is a very strong supporter of what we are talking about. An area he used to hike in when he was young is called the Mt. Trumbull area on the north rim of the Grand Canyon north of Flagstaff. As Secretary of Interior, being BLM land under the jurisdiction of the Department of Interior, he was able to do the rules and regulations that enabled us to go in and do the clearing. So they hired a couple of brothers that had a small business. They brought some pieces of equipment down from Oregon. One of them was a very small caterpillar thing that could snip all these small diameter trees. They cleaned out a fairly good size area. They made enough money to be in business, and isn't that fine. What they left was a forest that looked more like this. I remember one tree that a BLM person there said: I have to show you this. Here was a tree that looked like a big California sequoia. It was a big ponderosa pine. The boughs came all the way down to the ground. And all around it were these small dog hair thicket kind of trees and brush. He said: We have to get them to clean this out because this tree is very much in danger of burning. If any spark comes within a mile or so, it will just climb up this ladder. That beautiful tree, that was maybe 200 or 300, 400 years old, is going to go up in flames. That is the kind of tree we are trying to protect. For those who say we want to somehow do logging and so on, I simply say they are wrong; we are not. This is what we are trying to create, not this. Let's go on to talk about some of the other aspects. In Arizona, there were about 4 million acres classified as condition 3, meaning most subject to catastrophic wildfire. Nationally, there are just under 75 million such class 3 acres. Out of this, the Forest Service identifies about 24 million as the highest risk of catastrophic fires. And this definition means they are so degraded that they require mechanical thinning before fire can be safely reintroduced. According to the General Accounting Office, we have a very short period of time in which to treat these acres. According to a 1999 study, the GAO says we have 10 to 25 years to treat this 30 plus million acres of class 3 land if we are to prevent unstoppable fires. This shows you what can be done when you treat the acres. This is full restoration, meaning we have gone in and cut out quite a few of the small diameter trees leaving relatively few, mostly larger trees per acre. This is exactly what this particular acre had on it when the cutting and thinning had been done, going in and cutting out the small diameter trees. In Arizona you can introduce fire in prescribed burns during the month of October and November because it is cooler. It is moist, and the fires are not going to get out of control. Fire was introduced here in this area in October, the wet month, and you can see that it is burning along the ground, burning the fuel that has accumulated on the ground. It is not going to go through this tree here or these trees here. It may burn some of the smaller trees, but what is going to be left is a nice environment in which you have grasses that can crop up the next spring and reintroduce a lot of species and habit and protect, as well, from fire. If lightning were to strike one of these trees and start a fire, it would return along the ground like this. In the hot summer months, once it has been treated, it is likely, with all of the fuel having burned off the previous winter, the fire will move around the ground and it will not crown out to a higher degree of fire. The reason you cannot treat these forests with fire alone, and you have to mechanically thin and cut out some of the underbrush first, is demonstrated by the next chart. This shows you what happened when we left this many trees per acre. This shows you when you do minimal thinning. They didn't do very much thinning, and they reintroduced fire, and you can see this fire is starting to climb the trunks of these trees and is going to crown out. You see it coming up along the top of this tree. It is going to catch the crowns of a lot of these larger trees. They are at great risk of burning and a fire starting. This is during the wet month of October when you have a lot of moisture. If you don't take out very many trees, a la this particular treatment here, minimal thinning, and you introduce fire, you are going to have a risk of fire in the hot months. It is going to be a very grave risk. Let's turn to the third chart, which shows what happens when you don't do anything at all, you only burn. This demonstrates why you have to do thinning first. No thinning was done on this particular acre. This is during the cool, wet month of October in Arizona. They introduced fire, and look at what happened. It got out of control and created a crown fire. This is the beginning of what the Rodeo-Chediski fire looked like. So it is too late in much of our forests to introduce prescribed burning. It will go out of control. You have to go in, as I said, and thin it out first and then, that fall, you set a prescribed burn and you burn all of the fuel on the ground. Thereafter, the grasses grow and everything regenerates and you have a very nice environment. There is another myth. I talked about cutting old-growth trees. When people talk about saving old growth, we need to be careful because the reality is that a lot of old-growth trees, particularly in Arizona, are not big trees at all. They are not the ones you necessarily want to save. If you have been on the California coast, perhaps you have seen trees over a thousand years old. Some of the oldest ones are gnarled. Which tree here is the oldest? Interestingly, this smaller tree is 60 years old and this bigger one is 55 years old. This is the younger tree--the big one. This tree was in an area that wasn't competing for a lot of nutrients, water, and sun. It was in a more open area. It grew as you would expect it to--very well, very quickly, and very big. Obviously, this is a tree we are going to want to preserve. It will get bigger and bigger. But if you have that area in which the trees are crowded together in these very dense thickets, you can have a tree no bigger than this small one after 60 years. In fact, I have another one about the same size that is 88 years old. Old growth would be something over 120 to 150 years. We have trees not much bigger than this that are designated old growth. We desire to create an environment in which you get these big beautiful trees that grow old and big and create the habitat for all of the fauna I discussed before for which we are trying to preserve the forests. This is an illustration of why you don't want to have arbitrary limits on cutting old-growth trees. The tree you want to save is this big one, not that one, the small one. That makes a much nicer environment and one that is better for the wildlife. (Mrs. CLINTON assumed the Chair.)

Mr. KYL

Mr. KYL. Mr. President, this week, which will be one Americans remember for a long time as the anniversary of the September 11 attacks of last year, a lot of second-guessing has been going on about what we might have done differently. Part of that is based on the fact that there was a lot of evidence that the United States should have been prepared to deal with the kind of attack that occurred, even if not at that precise time and place. I think history will show, notwithstanding all of the evidence, it would have been very difficult for us to actually defend against those attacks, but it should not dissuade us from acting on similar evidence in the future. I fear there is another situation developing which, both because we are focused on the war on terror and because it presents us with some unpleasant choices about what to do, is creating a similar situation where there is evidence that we should be paying attention to a problem, but either because we do not want to deal with it or because there is a lack of consensus about how to deal with it, the United States is not taking adequate precautions or taking adequate steps to deal with the situation. What I have in mind is a concern that has been now discussed in two very recently released Government reports on the threat that is posed by the nation of China against the United States. The first, produced by the congressionally-mandated United States- China Security Review Commission, offers a sobering analysis of the national security implications of the economic relationship between our two countries. It flatly states that trade alone has failed to bring about serious political change in China. The second, the Defense Department's annual report on the military power of the People's Republic of China, paints an unsettling picture of China's military buildup, the main objective of which is to prepare that country for a military conflict in the Taiwan Strait, and to counter potential U.S. intervention in the conflict. Proponents of unconditional engagement with China opine that the Chinese people's access to the Internet, modern telecommunications, and free trade will make that country a more free and open society. They suggest that entrenched vestiges of the Communist system will eventually fade away as new leaders, who are committed to capitalism, take the reins of power. In other words, economic freedom will invariably translate into political freedom, and democracy will be the clear result. But, particularly with the release of these two reports, it seems more and more clear that China's willingness to engage in the world economy has not translated into evolution toward democracy. Indeed, the United States-China Security Review Commission concluded that: . . . Trade and economic liberalization have not led to the extent of political liberalization much hoped for by U.S. policymakers. The Chinese government has simultaneously increased trade and aggressively resisted openness in politically sensitive areas such as the exercise of religious, human, and worker rights. Consider, for example, Chinese Government control over the Internet. While many expected that access to the Internet would facilitate the influx of Western ideas and values, the Commission stated that those hopes ``have yet to be realized.'' Indeed, Beijing has passed sweeping regulations in the past two years that prohibit news and commentary on Internet sites in China that is not state-sanctioned. The Commission noted that China has even convinced American companies like Yahoo! to assist in its censorship efforts, and others, like America Online, to leave open the possibility of turning over names, e-mail addresses, or records of political dissidents if the Chinese government demands them. It is impossible to predict China's future. That country has embarked on an uncertain path, opening its economy while simultaneously attempting to strengthen the Communist Party's political and social control. The consequences, given that Chinese policies run directly counter to U.S. national security interests, are potentially grave. Thus, the Commission established benchmarks against which Beijing's future progress can be measured, including China's proliferation of weapons of mass destruction; its cozy relationships with terrorists states like Iran, Iraq, and North Korea; its bellicose posture toward Taiwan; and its pursuit of asymmetric warfare capabilities to counter U.S. military capabilities. China's proliferation of technology and components for ballistic missiles and weapons of mass destruction to terrorist-sponsoring states--including North Korea, Iraq, Iran, Syria, Libya, and Sudan--is of serious concern. The Commission found that, despite numerous bilateral and multilateral pledges to halt that proliferation, ``Chinese proliferation and cooperation with [such] states has continued unabated.'' Just in the past year, the administration has sanctioned Chinese entities three times for their proliferation to Iran of equipment and materials used to make chemical and biological weapons. Yet these sanctions are unlikely to curb China's proliferation activities. As the Commission concludes, ``Current U.S. sanctions policies to deter and reform Chinese proliferation practices have failed and need immediate review and overhaul.'' The Commission recommended that the United States expand the use of economic sanctions to apply against entire countries, rather than just individual entities. Suggested sanctions include import and export limitations, restrictions on the access of foreign entities to American capital markets, restrictions on direct foreign investments in an offending country, and restrictions on science and technology cooperation. I should note that these measures are very similar to those proposed by my distinguished colleague from Tennessee, Senator Thompson, in 2000 during the debate on granting China permanent normal trade status. His amendment, which I strongly supported, was rejected by this body. As to Taiwan, Beijing is deadly serious about pursuing unification-- through force, if necessary--with our long-standing, democratic ally. The Chinese military is actively pursuing capabilities and strategies that it would need to accomplish that task, and according to the Commission, it is believed that the military has been directed to have viable options to do so by 2005 to 2007. Mr. President, let me repeat that: It is believed that the Chinese military has been directed by the Communist leadership to be prepared to move against Taiwan by 2005 to 2007. If there is one sentence in this report that ought to serve as a wake-up call, this is it. What is so significant about that time-frame is that, during those two years, a number of factors fall in line. First of all, the Defense Department has projected that the balance of power across the Taiwan Strait will shift toward China by 2005. Second, it is estimated that our theater missile defense system, which China fears we will share with Taiwan, will be up and running by 2007. Finally, it is estimated that China's myriad conventional weapons recently purchased from Russia--including submarines, fighter jets, and air-to-air missiles-- will become fully operational within that 2-year period. Indeed, the Defense Department, in its report, concluded that China's ``ambitious military modernization casts a cloud over its declared preference for resolving differences with Taiwan through peaceful means.'' The Pentagon observes that, over the past year, Beijing's military exercises have taken on an increasingly real-world focus aimed not only at Taiwan, but also at increasing the risk to U.S. forces and to the United States itself in any future Taiwan contingency. The Defense Department warns that China's ``military training exercises increasingly focus on the United States as an adversary.'' Its military modernization concentrates on weapons that could cripple our military strength, including anti-ship missiles to counter our naval fleet and cyber-warfare to disrupt our infrastructure. Beijing is also modernizing its ballistic missile program, improving its missile force across the board both quantitatively and qualitatively. Beijing currently has about 20 inter-continental ballistic missiles, ICBMs, capable of targeting the United States, is projected to add up to 40 longer-range, road-mobile missiles by 2010. In light of the Pentagon's conclusions, it is more important than ever that the United States provide Taiwan in a timely manner with the equipment and training it needs to defend itself against a potential Chinese attack. That training should include joint operational training, which would facilitate an allied U.S.-Taiwan response to an attack on Taiwan by China. Taiwan is currently outnumbered 10 to 1 in combat aircraft, 2 to 1 in ships, 60 to 4 in submarines, and its air force is beginning to lose its qualitative edge over China. The United States should also expand and multilateralize its security relationships with Taiwan and other allies in East Asia to deter potential Chinese aggression. No doubt China is a very different country than the former Soviet Union, but there is something to be said for the deterrent factor that comes with a NATO-like coalition. As President Bush stated during his campaign, ``We should work toward a day when the fellowship of free Pacific nations is as strong and united as our Atlantic partnership . . .'' Additionally, the United States needs to develop and deploy missile defenses at the earliest possible date. I am pleased that President Bush recognizes the importance of having such a defensive system, and has made it a top priority among our military objectives. What is frustrating is that the United States continues to play a facilitating role in China's military buildup and its proliferation of dual-use technologies--technologies that have civilian and military uses--to rogue states. China's buildup and its proliferation both harm U.S. national security. The United States China Security Review commission agreed with the conclusion of the 1998 Rumsfeld Commission that: The U.S. has been and is today a major, albeit unintentional, contributor to the proliferation of weapons of mass destruction [through] foreign student training in the U.S., by wide dissemination of technical information, by the illegal acquisition of U.S. designs and equipment, and by the relaxation of U.S. export control policies. Our progressive relaxation of controls on the export of high performance computers is just one example. These computers can assist China in its efforts to rapidly design modern nuclear weapons and their delivery systems. Our lax controls over the export of these computers allow China to legally obtain U.S. technology that helps to improve its military capabilities. Indeed, the Commission concluded that, despite the existence of nominal controls, most high performance computers are no longer licensed and monitored. Not only is China using U.S. technology to build its own military capabilities, it is transferring this technology to countries that support international terror networks. The China Commission found that: Chinese firms have provided dual-use missile-related items, raw materials, and/or assistance to Iran, North Korea, and Libya. Chinese companies have also exported substantial dual-use telecommunications equipment and technology to countries like Iraq. Media reports indicate that the Chinese firm Huawei Technologies--an important player for many U.S. firms who want to reach the Chinese telecom and data communications market--assisted Iraq with fiber-optics to improve its air-defense system. This was not only a violation of U.N. sactions, it also greatly increased the danger to U.S. and British pilots patrolling the no-fly zones. Despite the serious concerns of some policymakers, Members of this body, and others about the national security implications of transfers of such technology to China, the Senate, in September 2001, passed S. 149, the Export Administration Act. If enacted, this legislation would significantly relax our export control regulations and make it far easier for China to obtain sensitive U.S. technology. it would decontrol a number of items--including electronic devices used to trigger nuclear weapons and materials used to build missiles and produce nuclear weapons fuel--by giving these items ``mass market status.'' Mr. President, it is my hope that, as the anniversary of September 11 approaches, the administration and Congress recognize the potential danger of allowing business interests to continue to trump our national security needs. I am a strong proponent of free trade and open markets. But our national security should not be sacrificed for potential commercial gain. The federal government's first responsibility is the protection of the American people. How the United States chooses to manage its relationship with China will have a far-reaching impact on our long-term national security. As that country continues to play a more prominent role on the world stage--no doubt a product of its economic liberalization--it is imperative that U.S. policy appropriately address not only our trade relationship, but also the threat posed by China to U.S. national security. Our actions should be based not on wishes, but on facts--even if they are unpleasant. I thank the Chair.

Mr. KYL

Mr. KYL. I thank the Chair.

Mr. KYL. Mr. President, I am going to speak in morning business.

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

Mr. KYL

Mr. KYL. Mr. President, I regret to say this day is a very dark day in the history of the Senate. The Senate Judiciary Committee, of which I am a member, has just rejected, on a purely partisan party line vote, the nomination of one of President Bush's finest nominees to the U.S. Circuit Court, Justice Priscilla to the Fifth Circuit Court of Appeals. First, there was a vote to reject her 10 to 9. Then, Senator Hatch asked she be reported to the full Senate without recommendation so that all of our colleagues could have an opportunity to cast their vote on her nomination. That was rejected 10 to 9. Finally, he said, all right, then, I will move that we report her out unfavorably since the majority of the committee, 10 to 9, does not support her confirmation. That, too, was rejected on a party-line vote. The full body of the Senate will not have an opportunity to vote on the confirmation of Justice Priscilla Owen. The reason this is so distressing today is because it marks a new era in the judicial confirmation process. That much was made clear by the Democratic members of the committee today. It is clear now that there is a new test to be applied to the President's nominees. It is no longer enough that the nominee be well qualified and above reproach in terms of judicial ethics. It is now necessary that the candidate be committed to actively pursuing the political agenda of the majority of the members of the committee. If not, they will characterize the nominee as ``extremist,'' as ``right wing,'' as Justice Owen was characterized today. Now, some time ago the chairman of the committee said the American Bar Association, which had historically rated the qualifications of nominees, was 6really the gold standard because they were very careful in how they considered the qualifications of nominees and their recommendations were not made lightly. The highest recommendation that the American Bar Association can give to a nominee is ``well qualified.'' Justice Owen received the recommendation of ``well qualified'' not by a majority of the members of the ABA who decide these matters, but unanimously. Every single person involved in the ABA who rated the nominee, rated her well qualified. In other words, she could not have gotten a higher rating from the American Bar Association. As I said, the chairman of the committee characterized this process as the gold standard for nominees. I said today that I guess the Senate has now gone off the gold standard; that is no longer enough. The Senator from New York was quite candid in articulating again, as he has on numerous occasions, what he believes the new standard should be. And central to the application of the new standard is a determination by the members of the committee of the purported ideology, political ideology, of the nominee with the right to determine whether the nominee is within the mainstream, as they identify it, and then the right to vote down any nominee considered to be outside the mainstream. Never mind that our great and distinguished colleagues, such as Senator Kennedy of Massachusetts, Senator Schumer of New York, Senator Leahy of Vermont, in my opinion, are not necessarily the most qualified to describe what is mainstream in American politics--as least not as qualified as a person who has been elected by all of the people of the country, the President of the United States. Apart from the fact that I think President Bush probably has a better handle on what is mainstream in the country than my colleagues on the committee, myself included, the rejection of the previous standard and the insertion of this new political standard into the Judiciary Committee deliberations is a breach of tradition, highly dangerous to the continuation of the rule of law in the United States, and itself an exercise in blatant, political activity. When the Senator from New York suggested this new standard, he held a hearing. Among the people who testified were Lloyd Cutler, counselor to several Democratic Presidents. Lloyd Cutler is a man of great distinction in the bar with a long history of activity in the judicial nomination process. He said it would be a grave mistake to insert politics into the nonpolitical branch of Government, the third branch, the judicial branch. He said if an ideological litmus test ever became the Senate's reason for confirming or rejecting a nominee, that it would have injected politics into the third branch, and the citizenry could then well conclude that the third branch of Government was merely an extension of the other two, subject to political decision making, and that the public could then rightly lose faith; that the designates of the third branch of Government would be devoid of political influence, that they would be fair and honest. And I would just add in my own words that it would be pretty hard to believe anymore that when you went into a court and you expected to receive blind justice, as we are all accustomed to, that you might well be faced with the decision of a political judge who would not base the case on the law or the Constitution, but rather on political ideology. That is wrong. It is dangerous. It is unprecedented. That is why I say this was a black mark in the history of the Senate because today we had a committee that made a decision that I can only characterize as applying a political litmus test to the nominee--and a faulty one at that. If my colleagues can characterize Justice Priscilla Owen as a right- wing extremist, an ideologue, an activist judge--as they did--then anyone can be so characterized. Senator Gramm made the point a few minutes ago. He said: I know a political ideologue when I see one because I am. Most of us in the Senate, in fact, are political ideologues in the finest sense of that word. We believe in a political ideology and we care enough, no matter what other occupation we might have had, to try to advance our political philosophy in the U.S. Senate on behalf of our constituents. That is in the great tradition of the United States and applied to the second branch of Government, the legislative branch. But it has never been appropriate to apply that to the third branch of Government, our judges. As I said, if Priscilla Owen can be so characterized, then anyone can be. She is about as far from being an ideologue or an extremist or an activist as anybody I have ever seen nominated to the court. A bit about her: She has earned the support of Texas Democrats and Republicans. She has been three times elected to the Texas Supreme Court. She had the endorsement of every major Texas paper in her last race. She is not a partisan. She is brilliant. She had the highest score on the Texas bar exam when she took it. As I said, the American Bar Association rated her unanimously with their highest rating of ``well qualified.'' Everything that was said about her in the committee deliberations this morning was considered by the bar association in making that recommendation. I suggest the charges that those outside the Senate have made are trumped up charges that bear no resemblance to the truth. In characterizing her as somehow outside the mainstream, these groups have done a great disservice, not just to the President and to the court system and the rule of law, but to this fine individual, personally. That is, perhaps, the biggest tragedy of all. The Washington Post, which is not known to be, by conservatives anyway, a friendly newspaper to the President or to conservatives or to the conservative philosophy, in an editorial on July 24, made clear its view that it would be inappropriate to reject Justice Owen; that she was highly qualified and that her conservative views, if indeed she had them, would not be a reason for her to be disqualified and rejected. The Post characterized her as a conservative in the editorial, concluding: In Justice Owen's case, the long wait has produced no great surprise. She's still a conservative. And that is still not a good reason to vote her down. I remember in the last few weeks of the campaign for the Presidency, Al Gore said one thing I agreed with. He said: You should not vote for President Bush because if he's elected President then he'll nominate conservatives to the court. It is no great surprise that a President would nominate people to the courts who think like the President does. That is traditional in this country and Al Gore was right. If you elected him, you are more likely to get people who are more liberal. If you elected President Bush you are more likely to get people who are more conservative. That is our system and that has never been a basis for the Senate to substitute its political judgment for that of the President--who after all, again, was elected by all of the people in the country--and vote the nominee down based on ideology. Instead, it has always been the tradition to determine whether the candidate was well qualified, had the right ethics and judicial temperament, and was otherwise qualified. If so, then the candidate was confirmed. As a member of the committee and as a Member of this body, I have voted on a lot of nominees with whom I did not agree politically. There are members of the Ninth Circuit Court of Appeals sitting now who have voted wrong in every controversial case, as far as I am concerned. But I voted for them. I voted to confirm them because I believed that President Clinton, having been elected by all of the people of the country, deserved his nominees. I couldn't argue with the qualifications or ethics of the people for whom I voted. These, too, were rated highly by the American Bar Association. They, too, were smart people who had good judicial ethics. So I voted for them, knowing that probably they would come down on the wrong side of decisions that mattered to me in certain situations. And that has been the case. But I do not regret voting for them because that has been the tradition for over 200 years in this country. Senator after Senator on the floor of the Senate has made that point: I don't necessarily like this candidate's views, but I am going to support the candidate because of the tradition of the Senate to give the President's nominees the benefit of the doubt. The new ideology in the Senate, according to the majority members of the committee, is that the burden of proof is now on the nominee; that unless the nominee can demonstrate to the members of the committee the nominee's willingness to abide by this test that has been established, that the committee has the right to turn these nominees down. The burden of proof has heretofore been on the committee members to find a reason to reject the nominee if, in fact, there was one. To be candid, Members of the Senate have sometimes gone looking for reasons to oppose a nominee when they believed that the ideology was too far one way or the other. Sometimes they found those reasons and sometimes they did not. But up to now, anyway, unless you could find a darned good reason to oppose a nominee, you didn't do so. Now that has changed. That is why I said this is a very dark day in the Senate. If this persists, we are going to get to the point where we have judges sitting who were confirmed based upon political ideology so the citizens of the country are no longer going to be able to go into court and be satisfied regarding the one person who will rule on their fate, on their property, and in some cases even their lives--that the individual litigant can no longer count on the decisions made to be fair and in accordance with the law and the Constitution of the United States. I know of very few countries in the world where a citizen is willing to volunteer and go into court and say: I believe I am absolutely right, but I am willing to let a judge, somebody I have never met before, who I do not know, make a decision that could dramatically affect my life because I believe in the rule of law as applied in the United States of America, in fairness and in the application of the rule of law in the U.S. Constitution. There are not very many places in the world where you feel good about going into a court and literally placing your life in the hands of someone you don't know. But we trust those people in the United States because of the tradition that has enabled us to appoint people to the bench who, by and large, rule on the basis of their view of the law and of the Constitution rather than on a political ideology. But if this persists, you are not going to know when you go before the judge whether this was a judge who was chosen because of ideology and, if so, how that might be applied in your particular case. That is a very bad thing. It begins to undermine the rule of law in this country. That is why people, such as Lloyd Cutler and others, were very wary of a change in the practice of confirming judges this way. I think it is interesting that liberals in this country were always very concerned about President Reagan and the first President Bush applying a litmus test to nominees. They both made it clear that they applied no such litmus test. The litmus test that was of most concern related to the issue of abortion. It is clear, from at least some of the nominees President Bush appointed, that he did not have a litmus test in mind because those judges have not agreed with the Reagan-Bush kind of political philosophy. But I think it is appropriate that there be no litmus test on abortion or any other issue. When I recommended a judicial nominee to the President--either to President Clinton or to President Bush--I did so on the basis that I could easily say I never asked this candidate about his or her position on an issue such as abortion. In fact, to this day I don't know those candidates' positions, by and large, on that particular issue. But it appears to me now the litmus test is being applied, and specifically on the issue of abortion, if you listened to the members of the committee who discussed Justice Owen's nomination today. It is interesting that the Judiciary Committee, in response to the concern about a President applying a litmus test, has a question that has always been put to the nominees before it. We have a list of questions. But one of the key questions is: Has anybody at the White House or in the Government asked you about your position on any issues that might come before the court? If so, specify who, when, and so on. Because the members of the Judiciary Committee wanted to know if anybody in the executive branch queried them about their political views on issues that might come before the court. And, of course, if anybody had done so, the committee would have risen as one and said: That is improper; you are applying a litmus test, and you can't do that. Some of the witnesses who came before the committee when we had the hearings on this alluded to that questionnaire. And we said: You can't substitute the traditional advice for confirmation with a political litmus kind of test and only apply it in the legislative branch. If the members of the Judiciary Committee are going to begin applying a litmus test--if we are going to begin making our decision on ideology--then you can expect the President of the United States is going to do the same thing, continuing down that road. I think there is an element of hypocrisy because that question still exists. It is still asked by the members of the Judiciary Committee. But we say the President dare not ask it. I think we have to get our thinking straight. Are we going to allow decisions such as the one that was made today by the majority of the Judiciary Committee to become the prevailing view in the Senate and the traditional practice and test of the Judiciary Committee of the Senate or are we going to take a big, deep breath and say: Wait a minute--whether it is a Republican or Democratic President and whether it is a Republican or Democratic Senate--this is taking us down a very wrong and dangerous path. I believe that in the great tradition of partisan Members of this body, who nevertheless understood that politics was no way to make decisions on judges, good sense will ultimately prevail and the Senate will return to a standard that is appropriate--whether the candidate is well qualified based upon traditional temperament and ethics, and on their ability to apply the law fairly, and understanding and knowledge of the law. If we don't return to that kind of a standard, then we are on an inevitable decline in the way that our country applies the rule of law; and, since the rule of law underpins everything in the United States-- from our guaranteed constitutional rights to our economic free market system, our property rights, and all the rest--it would be the beginning of the end of this country. I do not exaggerate when I say that nothing less is at stake and that this body needs to address this question very seriously before decisions such as today's become the rule rather than the aberrant exception. I believe this is a dark day in the history of the Senate, that history will judge the actions of the committee today very harshly. I just hope my colleagues will consider whether in the future we need to return to the tradition that has served Presidents and the Senate and the Nation so well. I hope so. I yield the floor.

Mr. KYL

Mr. KYL. Mr. President, I rise today in reluctant support of this conference report. The underlying bill granting the President authority to negotiate trade agreements is critical. The problem is all of the other extraneous costly provisions in the trade assistance portion of the report. On balance, it has only been marginally improved during conference, and, in fact, one could argue that it has been made worse by the addition of a misguided and fiscally reckless new entitlement program. When this bill last came before the Senate, I outlined four main concerns, and said that how those issues were addressed in conference would influence my vote on the final version of the bill. First, I said the conference report would have to maintain the 2002-2006 suspension of the 4.9 percent tariff on steam generators for nuclear power facilities. That was accomplished. Second, the conference report would have to remove the so-called Dayton-Craig language. That was accomplished. Third, it would need to either eliminate or substantially amend the language creating a ``wage insurance'' program for workers age 50 and older who are certified under the Trade Adjustment Assistance Program. That was not accomplished. Fourth, the conference report would have to make significant changes in the health-insurance tax credit for TAA-certified workers. That was not accomplished, and arguably, the provision was made worse. More specifically, the Senate-passed bill and the conference report will suspend for a period of five years the 4.9 percent tariff on steam generators used by nuclear facilities. These generators are not manufactured in the United States, so there is no domestic industry to protect through the imposition of tariffs. Tariffs should never be imposed on products that are not domestically manufactured, especially those products that are critical for maintaining the U.S. domestic supply of energy. The existing tariff amounts to a ``tax'' of approximately $1.5 million per generator. Although ostensibly paid by utilities, the cost would actually be passed on to ratepayers and consumers. In the case of the Palo Verde plant in Arizona, the nation's largest nuclear power facility in terms of production, the additional cost, due to the tariff, would be over $8.2 million for the six generators that it will need to import. The tariff suspension will save ratepayers money, which is why it has strong bipartisan support. I appreciate the conferees maintaining this provision in the conference report. I am also pleased that the conferees agreed to remove the so-called ``Dayton-Craig'' language. This is a provision that would have made it easier to defeat legislation negotiated under trade-promotion authority if it amended U.S. trade remedies, no matter how technical or even beneficial the change might be. It would have resulted in the unraveling of successful trade negotiations. Moreover, the provision was unnecessary since language is already included in the bill to ``preserve the ability of the United States to enforce rigorously its trade laws'' and ``avoid agreements that lessen the effectiveness of domestic and international disciplines on unfair trade.'' The next issue of concern to me involved the many trade-adjustment assistance, TAA, provisions in the bill. One such provision was the new ``wage insurance'' entitlement, which would provide a subsidy of up to $5,000 for older TAA-certified workers who are subsequently employed at lower-paying jobs. With no data supporting the efficacy of such a proposal, this provision would create significant disincentives for workers to forgo needed training or conduct a more intensive job search, likely resulting in workers choosing lower paying and perhaps lower-skilled jobs with taxpayers liable for the difference. It is indeed unfortunate that conferees were unable to remove this provision. Although the nature of the entitlement is altered somewhat, it remains deeply flawed. Another provision in this conference report would provide an advanceable, refundable health-insurance tax credit to TAA-certified workers. Although the conferees agreed to lower this tax subsidy from 70 percent to 65 percent, the credit remains at an arbitrarily high percentage of the premiums' cost. With one small exception, the credit can only be used to subsidize the cost of company-based, COBRA, or pooled health-insurance policies. I believe that it is unfair for American taxpayers, many of whom may not have health insurance themselves, to provide such a generous health-insurance subsidy. Under an extremely small exception, individuals will be able to use the credit for the purchase of an individual health insurance if the policy is bought at least one month before unemployment. This restriction makes the small exception for the purchase of individual health insurance nearly worthless. Worst of all is the poison pill that was added to the conference report. By expanding the eligibility for the health tax credit to retirees receiving benefits from defunct pension plans taken over by the Pension Benefit Guarantee Corporation, PBGC, the conference report has taken a significant step backwards. Potentially, this provision could end up covering individuals who worked for companies that went out of business 20 years ago. Today, these individuals will be eligible for this new benefit. These individuals, who will often be 55 years or older, will be included in the pool of workers benefitting from new Trade Adjustment Assistance health provisions, making it even more expensive for the relatively younger workers to purchase health insurance. Aside from doubling the costs of these health provisions, which now total over $4.8 billion over 10 years, this legislation could have numerous other unintended consequences on our pension system. It allows companies that over-promised benefits to walk away from their obligation and leave taxpayers with the bill. As a matter of principle on the one hand, and sound economic policy on the other, I still believe it is imperative that we grant the President trade-promotion authority. As a Senator who is committed to expanding free trade and its accompanying benefits, I am frustrated that this legislation has been loaded up with costly new entitlement programs. I will vote for this bill because I know how important it is to grant the President Trade Promotion Authority. But because of the numerous bad provisions in the bill, and the bad precedents they set, the decision does not come easy. That shouldn't have been the case.

Mr. KYL

Mr. KYL. I think the amendment is an excellent amendment in support of victims, and therefore I am very pleased to support it.

Mr. KYL. One final question: Your amendment in no way limits the amount that the individual can recover in economic damages, or pain and suffering damages, at all, but it would put at least an upper limit of one-third on a contingency fee that the lawyers could charge for that plaintiff or victim?

Mr. KYL. Directly on this point, I learned in law school sometimes it is hard for people to get a lawyer to take their case if they do not have a very good case. Lawyers charge a higher and higher and higher contingency case. But if the case was a pretty good case, back when I was in law school, contingency fees were pretty low. As I understand your amendment, limiting the contingency fee to one- third of what is recovered is a pretty high contingency fee. Under the Federal Tort Claims Act, since the late 1940s, the limit has been 25 percent, and there has been no dearth of cases. It is actually higher than we already have under the Federal Tort Claims Act. Continuing this line of thought, if you have a good case, then the contingency fee tends to be lower. The worse the case is--the less likelihood of succeeding--generally, the higher the contingency fees. What would you say to the argument that we have to have no limit on the contingency fees or cases will not be taken?

Mr. KYL. Will the Senator yield for a request?

Mr. KYL

Mr. KYL. Madam President, on June 13 the United States officially withdrew from the 1972 Anti-Ballistic Missile, ABM, Treaty, closing a chapter in U.S.-Soviet relations, and beginning another with Russia. The lapsing of the ABM Treaty, combined with the Senate's defeat of the Comprehensive Test Ban Treaty in 1999 and the signing of a new type of nuclear reduction treaty with Russia in May, represent a fundamental shift in the way the United States approaches strategic security. We have moved away from reliance on traditional arms control treaties toward a reliance on our own capabilities--namely missile defenses and a credible nuclear deterrent. Proponents of the ABM Treaty were convinced that it was the ``cornerstone of strategic stability,'' and that U.S. withdrawal would damage the improving U.S.-Russia relationship, spark a new arms race, and even lead, as one of my colleagues remarked, to ``Cold War II.'' Those predictions were wrong. Yet some still cling to the notion that arms control is the key elements in U.S. national security. Over the past 6 months, I have addressed the Senate on the strategic justification for U.S. withdrawal from the ABM Treaty, the question of how much a missile defense system will cost, and the President's constitutional authority to exercise the right of withdrawal without legislative consent. And, today, in response to those who continue to believe in the utopian aims of traditional arms control agreements, I rise to address the President's decision to abrogate the ABM Treaty, this time in the broader context of the utility of such measures as a means to protect U.S. security interests. The past 10 years have completely changes the Cold War strategic environment that gave rise to the ABM Treaty and other traditional arms limitation and arms reduction agreements. First, the United States and Russia have moved beyond enmity toward a more cooperative relationship. Second, the threats we face today are far more numerous and complex than those we faced during the Cold War. The proliferation of weapons of mass destruction has become one of our most pressing national security challenges. As many as three dozen countries now have or are developing ballistic missiles. Used by once between 1945 and 1980, such weapons have become an increasingly common component in regional conflicts. In fact, thousands of shorter range missiles have been used in at least six conflicts since 1980. And, as a recent National Intelligence Estimate NIE, on foreign ballistic missile developments warned, ``The probability that a missile with a weapon of mass destruction will be used against U.S. forces or U.S. interests is higher today than during most of the Cold War, and it will continue to grow as the capabilities of potential adversaries mature.'' Iran, for example, continues to place much emphasis on its missile activities. According to the recent NIE, that country's ``longstanding commitment to its ballistic missile program . . . is unlikely to diminish.'' In early May, Tehran conducted a successful test of its 1,300 km-range Shahab-3 missile--capable of reaching Israel, as well as U.S. troops deployed in the Middle East and South Asia--and some press reports indicate that Iran is now set to begin domestic production of the missile. Additionally, on May 7, the Associated Press, citing an administration official, reported that Iran is continuing development of a longer-range missile, the Shahab-4. With an estimated range of 2,000 km, the Shabab-4 will be able to reach well into Europe. North Korea's missile programs are also of great concern. That country has extended its moratorium of testing its intercontinental- range Taepo Dong missiles until 2003; however, its surprise August 1998 test flight over Japan of the Taepo Dong 1 missile should serve as a clear indication of its intent to develop missiles with intercontinental ranges. Indeed, Pyongyang is continuing its development of the longer-range Taepo Dong 2 missile, capable of reaching parts of the United States with a nuclear weapon-sized payload. According to the NIE: The Taepo Dong 2 in a two-stage ballistic missile configuration could deliver a several-hundred kg payload up to 10,000 km--sufficient to strike Alaska, Hawaii, and parts of the continental United States. If the North uses a third stage similar to the one used on the Taepo Dong 1 in 1998 in a ballistic missile configuration, then the Taepo Dong 2 could deliver a several hundred kg payload up to 15,000 km-- sufficient to strike all of North America. In Iraq, Saddam Hussein continues to obstruct the international verification of commitments made to the United Nations, and still fails to comply with arms control agreements he accepted at the end of the gulf war. The recent NIE concluded that, ``Despite U.N. resolutions limiting the range of Iraq's missiles to 150 km, Baghdad has been able to maintain the infrastructure and expertise to develop longer range missile systems.'' And Iraq's ability to surprise us in the past with the scale of its missile, nuclear, chemical, and biological programs should serve as a warning. Secretary of Defense Rumsfeld recently discussed Baghdad's weapons of mass destruction capabilities, stating: They have them, and they continue to develop them, and they have weaponized chemical weapons. They've had an active program to develop nuclear weapons. It's also clear that they are actively developing biological weapons. I don't know what other kinds of weapons fall under the rubric of weapons of mass destruction, but if there are more, I suspect they're working on them, as well. China presents an even more complex case. While not a member of the axis of evil, that country's exceedingly belligerent attitude toward the United States and our longstanding, democratic ally Taiwan requires a clear-eyed approach to our relationship with the communist government in Beijing. China currently has about 20 intercontinental ballistic missiles capable of reaching the United States, and is in the midst of a long-running modernization program to expand the size of its strategic nuclear arsenal and to develop road-mobile and submarine- launched ICBMs. According to the NIE, by 2015, ``Chinese ballistic missile forces will increase several-fold.'' Additionally, by that time, ``Most of China's strategic missile force will be mobile.'' As Secretary Rumsfeld stated on September 6 in reference to China's strategic missile modernization and buildup, ``It is a long pattern that reflects a seriousness of purpose about the People's Republic of China with respect to their defense establishment.'' President Bush's fresh approach to strategic security with Russia-- called the ``New Strategic Framework''--takes into account these changed circumstances. The President's framework entails unilateral reductions in offensive nuclear weapons and the development and deployment of defensive systems to deter and protect against missile attacks. President Bush outlined this approach before his election, and upon taking office, immediately began to develop a plan for action. The central component of that framework is the development of missile defenses, critical to which is U.S. withdrawal from the ABM Treaty which totally prohibits deployment of a national missile defense. Indeed, our withdrawal represents a fundamental shift away from reliance on consensual vulnerability, perpetuated by arms control treaties, and a move toward prudent defensive measures. The ABM Treaty was a classic example of arms control--promising much more than it was ever able to deliver. The theory was that by ensuring mutual vulnerability to nuclear missile attack, the incentive to build increasing numbers of offensive forces would be removed. History proved that theory wrong. Between the treaty's signing in 1972 and 1987, the Soviet Union's inventory of strategic nuclear warheads grew from around 2,000 to about 10,000; and the U.S. arsenal grew from around 3,700 to 8,000. In fact, strategic nuclear forces expanded not just quantitatively, but also qualitatively. The decade following the ABM Treaty's signing witnessed the introduction into the Soviet arsenal of entire generations of new long-range missiles, not just in contradiction of the intent of the ABM Treaty, but in contravention of the accompanying SALT I accord as well. Clearly, deliberate vulnerability did not promote arms control; rather, it fueled the arms race. It is important to reiterate the history of the ABM Treaty because those who purport that it was the ``cornerstone of strategic stability'' seem to misunderstand the original impetus for it. The truth is that the United States gave up the right to field defensive systems because the Nixon administration was faced, in 1971, with a Congress that refused to fund more than two of the original 12 sites that the Administration had proposed in 1969. This, in addition to a rapid Soviet offensive buildup, caused the Nixon administration to acquiesce in the negotiation of the ABM Treaty, to be coupled with the SALT agreement. And I should note that, two years after the ABM Treaty was negotiated, it was amended to limit to one the number of sites allowed because Congress did not even continue to fund the second site. Thus, making necessity a virtue, political theorists embraced the notion that, in order to deter a nuclear attack, the threatened response had to be the murder of millions of innocent civilians. President Reagan once referred to this philosophy, named Mutual Assured Destruction, as ``a sad commentary on the human condition.'' And, in my view, its acronym ``M-A-D'' describes it well. It is debatable whether that theory explains the absence of a nuclear exchange in the second half of the 20th century. Whatever the case, this idea certainly seems mad today, when we have friendly relations with Russia, and are confronted with an entirely different set of threats. It simply does not make sense to remain deliberately vulnerable to the increasing threat of a ballistic missile attack, especially when alternatives, such as missile defenses, now exist. Surely a sign of the changed times, President Bush returned from Russia in May having signed a new treaty under which both sides intend to reduce strategic warheads to 1,700-2,200. Just three pages long, this treaty merely states what both sides intend to do. There are no interim limits, no sub-limits, or verification schemes. More importantly, the treaty simply affirms what the United States had already decided were its strategic requirements--President Bush announced that we were unilaterally going to this level of warheads last November. This is important enough to repeat: this treaty memorialized what President Bush determined were our strategic requirements. Thus, this treaty is a complete break with the arms control orthodoxy of the past, which made each side's limitations or reductions dependent on the other, required difficult verification and enforcement provisions, and artificially pre-determined our strategic levels. Recognizing that we no longer live in a bipolar world, we must shift our attention to the threat to our security from a number of rogue states that already have, or are seeking to obtain, weapons of mass destruction capabilities. Despite the existence of a plethora of multilateral arms control agreements, the threat to the United States and its allies from chemical, biological, and nuclear weapons has not been limited. The fundamental flaw of such measures lies in the fact that they focus on weapons, rather than on the real problem: the dangerous regimes that possess them. And whether they've signed these treaties or not, the rogue regimes cannot be trusted to comply. Historians have traced that flawed approach back to the Catholic Church's attempt to ban the crossbow--the terrible new weapon of the 1100s--in 1139. That endeavor proved as ineffective as the arms control efforts that followed in later centuries. Perhaps there is no better example of this futility than the attempts after World War I to outlaw war altogether. The 1928 Kellog-Briand Pact, to which the Senate provided its advice and consent on January 25, 1929 by a vote of 85 to 1, was signed by all of the major countries. It renounced war as ``an instrument of national policy.'' It also paved the way for other arms control treaties and negotiations that left the Western democracies unprepared to fight and unable to deter World War II, a mere decade later. Indeed, in looking back at the arms control efforts of the 1920s and 1930s, Walter Lippman, the celebrated historian who championed the agreements when they were signed, wrote that, ``The disarmament movement was, as the event has shown, tragically successful in disarming the nations that believed in disarmament. The net effect was to dissolve the alliance among the victors of the first World War, and to reduce them to almost disastrous impotence on the eve of the second World War.'' Mr. Lippman's assessment offers an important lesson. Arms control works best where it is needed least--among honorable, morally upstanding nations. It does not work where it is needed most--against rogue nations. Countries that act clandestinely and in bad faith will simply ignore the legal requirements of arms control agreements when it suits their interests. Moreover, morally-upstanding nations depending upon these agreements for security and stability have often lacked the will to respond forcefully to violations. Even when evidence is clear, there are almost always overriding diplomatic reasons for overlooking or treading lightly on the violating parties. The international community's response to Iraq's use of chemical weapons is a prime example. When that country used chemical weapons against Iran in the 1980's in violation of the 1925 Geneva Protocol banning the use of such weapons, the U.N. Security Council passed a resolution calling for both sides in the conflict to exercise restraint. After Saddam Hussein again used chemical weapons--this time against his own Kurdish population--the Security Council again passed a resolution of condemnation that failed even to mention the use of chemical weapons. International resolve was so weak that when the United States proposed a resolution at the U.N. Human Rights Commission in 1989 condemning Iraq's use of those weapons against the Kurds, the initiative was defeated by a vote of 17 to 13. Unwilling to enforce the existing Geneva Protocol when Iraq had, without dispute, violated its terms, the international community, in an effort to demonstrate its commitment to arms control, agreed upon a new ban on the possession of chemical weapons. Yet possession is inherently harder to verify than already-banned use. This new ban--the Chemical Weapons Convention, CWC-- unrealistically aims to control states that are confident that they can violate its terms without detection and without punishment. And while the United States is destroying its chemical deterrent under the requirements of the CWC, chemical weapons programs in other states that have signed the treaty--like Iran--have not been curbed. Still others, like Iraq, North Korea, Libya, and Syria have not even joined the convention. There is no moral equivalence between Western democracies and rogue regimes like those in place in Iran, Iraq, and North Korea. Yet arms control treaties like the Biological Weapons Convention BWC and the CWC assume that all participants operate with the same objectives in mind. They place under one umbrella--under a unitary set of constraints-- states that are certain to comply and those that are certain to cheat. And therein lies their failure to serve any meaningful purpose. As Richard Perle, former Assistant Secretary of Defense, stated in a 1999 speech, ``The failure to distinguish guns in the hands of cops and guns in the hands of robbers is not just a practical absurdity, it is a profound moral failure.'' Other arms control efforts like the Nuclear Nonproliferation Treaty NPT, while more realistic in terms of their objectives, have also had questionable success. Under the terms of the NPT, the five declared nuclear weapons states--the United States, the United Kingdom, Russia, France, and China--agreed ``not in any way to assist'' any nonweapons state to acquire nuclear weapons. Other parties to the treaty agree not to develop nuclear weapons and to allow the International Atomic Energy Agency, IAEA to inspect their nuclear facilities. Just a brief examination of the records of parties to the treaty illustrates that its objectives are not supported equally by all. The United States intelligence community suspects that Russia and China, despite their NPT obligations, may be providing assistance to the nuclear weapons programs of certain states. North Korea--despite the optimism of some that the 1994 Agreed Framework would curb that country's nuclear weapons program--continues to evade certain IAEA inspections needed to ensure that country is in full compliance with the NPT and the Framework. And yet, the United States continues to support the Agreed Framework with U.S. taxpayer dollars. The U.S. intelligence community suspects that Russian nuclear-related assistance to Iran--ostensibly for Tehran's civilian nuclear program may, indeed, be contributing to Iran's nuclear ambitions. And the full extent of Iraq's covert nuclear programs, after years without inspections, is not fully known. In fact, even when inspectors were in the country, Saddam made use of information provided by Iraqi IAEA inspectors to evade detection. It is clear that multilateral arms control agreements have not delivered on their promise to make the world a safer place. As such, prudence demands that we take steps to ensure the safety of the American people--this will involve a combination of defense and deterrence. Though the ABM Treaty was bilateral agreement between the United States and the Soviet Union, President Bush's decision to withdraw the United States was, in fact, necessitated by our need to deal with other states that are developing ballistic missiles. Deterrence is simply inadequate in dealing with rogue dictators. To depend on nuclear deterrence alone with a dictator like Saddam Hussein, for instance--a man who used chemical weapons against his own people--would be to place American lives in the hands of a madman. As Winston Churchill warned in his 1955 ``Balance of Terror'' speech, ``The deterrent does not cover the case of lunatics or dictators in the mood of Hitler when he found himself in his final dugout.'' The alternative--which will be permitted now that we have withdrawn from the ABM Treaty--is to develop and deploy missile defenses. A missile defense system will give us more flexible options in a crisis. First, defenses against missiles will help the United States to avoid nuclear blackmail, intended to freeze us into inaction by the very threat of a missile attack. Imagine the impact on our decision to go to war against Saddam Hussein in 1991 had he been able to threaten the United States or our allies with nuclear missiles. Additionally, missile defense will reduce the incentive for ballistic missile proliferation by de-valuing offensive missiles. Finally, missile defenses, in a worst-case scenario, will save American lives. The development of missile defenses and the end of the superpower rivalry does not obviate the need for traditional deterrence, however. As the world's remaining superpower, we need to maintain maximum flexibility and the ability to play the ultimate trump card if need be. Deterrence and defenses--with neither, of course, being 100 percent fail-safe--will be mutually reinforcing. The prudence of maintaining a nuclear deterrent was shown during the Gulf War when we hinted that we might draw on that capability if Iraq attacked allied troops with chemical or biological agents. As then-Secretary of Defense Dick Cheney warned during a visit to the Middle East on December 23, 1991: ``Were Saddam Hussein foolish enough to use weapons of mass destruction, the U.S. response would be absolutely overwhelming, and it would be devastating.'' Iraqi Foreign Minister Tariq Aziz acknowledged several years later that Iraq did not attack the forces of the U.S.-led coalition with chemical weapons because such warnings were interpreted as meaning nuclear retaliation. Of course, with the end of the U.S.-Soviet standoff, we can maintain our deterrent at lower levels--thus President Bush's decision to unilaterally reduce our arsenal. But lower levels require greater attention to the safety and reliability of our remaining arsenal. This will, I believe, require renewed testing of that arsenal at some point. Thankfully, this body defeated the Comprehensive Test Ban Treaty, CTBT--which would have obligated the United States to give up for all time the option of testing our nuclear weapons--in October 1999. The Bush administration has made it clear that it strongly opposes the treaty. While it has no plans to do so, the administration has retained the option of nuclear testing to assure the safety and reliability of our nuclear arsenal. It is also moving to improve the test readiness posture. As Assistant Secretary of Defense J.D. Crouch stated during a briefing on the Nuclear Posture Review, NPR, the ``NPR does state . . . that we need to improve our readiness posture to test from its current two to three year period to something substantially better.'' I am pleased that the House version of the Defense authorization bill contains a provision that requires the Department of Energy to reduce to one year the time between the Presidential decision to conduct a nuclear test and the test itself, and I hope that the Senate will ultimately choose to include such a provision, as well. The threats to the United States today are more complex and difficult to predict than those we faced during the cold war. Recognizing their inherent limitations, it is therefore time to move beyond traditional arms control treaties as a means to protect American lives from these threats. President Bush has committed to do just that. He has set the United States on a course that unequivocally places faith not in traditional arms control, but in the time-honored philosophy that led to the West's victory without war over the Soviet Empire: Peace through strength. As a result, we will be able to pursue the development of missile defenses and maintain a credible nuclear deterrent. These demonstrations of strength, coupled, of course, with the maintenance of robust conventional capabilities--not more pieces of paper--are what will keep this nation secure. President Bush's overall security strategy rightly focuses on the root of the problem--the dangerous regimes that possess the weapons. As Margaret Thatcher once stated, ``. . . the fundamental risk to peace is not the existence of weapons of particular types. It is the disposition on the part of some states to impose change on others by resorting to force.'' The heart of the matter is that our strategy should seek to change the regimes themselves, whether through military, diplomatic, or economic means. The United States has made clear its intention to pursue that objective, and I have no doubt that our efforts will lead to success.

Mr. KYL. Madam President, I thank the distinguished assistant majority leader and would note that Senator Specter also wanted to address the Senate, but since he is not here, I will go ahead with my remarks.

Mr. KYL

Mr. KYL. Mr. President, I rise to express my concerns with Senator Rockefeller's amendment. As you know, it would provide every state with a 1.35 percent point increase in their Federal Medical Assistance Percentage, FMAP,--the amount that the Federal Government supplements States for their Medicaid costs. Under FMAP, Medicaid funds are distributed to States based upon a formula designed to provide a higher Federal matching percentage to those States with lower relative per capita income, and a lower Federal matching percentage to those States with higher per capita income. This formula, although not perfect, is justified because States cannot manipulate it for their own gain; the data is periodically published and can be estimated with reasonable accuracy. Additionally, the use of per capita income is a proxy for State tax capacity which, in turn, relates to a State's ability to pay for medical services for needy people. To put it simply: poorer states get more help than wealthier States. The Rockefeller amendment ignores the Medicaid formula and gives each State a 1.35 percent point increase. Under the amendment, states that have been determined by the Medicaid formula to receive the lowest FMAP of 50 percent receive the greatest percentage increase in FMAP. States with the highest FMAP receive the lowest percentage increase. This is the exact opposite of how the funds should be allocated. The Medicaid formula, whatever its faults, does indicate a relative sense of need. It would be wrong to the give the least needy States the largest percentage increase. For example, Illinois' FMAP for fiscal year 2003 is 50 percent. Increasing this to 51.35 percent, as the chairman's mark does, increases Illinois' FMAP by 2.7 percent. Arizona's FMAP for fiscal year 2003 is 67.25 percent. Increasing this to 68.60 percent, as the amendment does, increases Arizona's FMAP by only 2 percent and, obviously, a much lower dollar figure. Illinois is receiving a 35 percent greater increase in its FMAP than Arizona, yet by the formula's standards, Arizona has shown that it needs a far greater FMAP than Illinois. While the amendment is supposed to be a temporary increase in the FMAP for just 18 months--I also worry that this temporarily increase would become permanent, in which case it could cost upwards of $30 billion over 10 years. Additionally, the Chairman of the Finance Committee had scheduled a mark up on a proposal similar to this amendment. Unfortunately, the mark up was canceled. I do not think that having an amendment on the Senate floor without the legislation going through the committee process is the best way to make changes in the Medicaid formula that could become permanent. Given these facts, I will not be able to support the Rockefeller amendment.

Mr. KYL

Mr. KYL. Madam President, I rise today in support of an improved supplemental appropriations bill for fiscal year 2002. I am glad to see that the Senate conferees have reassessed their position and agreed to reduce the amount they had originally sought by more than $2.5 billion. The conference report now totals $28.9 billion, which is only $1.8 billion over the President's request, and an amount he said he would support. Additionally, the vast majority of the funds will now be appropriated as a contingent emergency, giving the President discretion on whether they should be spent, instead of forcing him to designate ``all or none'' of the non-defense funding items as emergency items. The bill has been improved in other areas as well, signifying a marked realignment of priorities by the conferees. For example, I am pleased that this report increases defense funding by $330.9 million. Although this is an increase over the President's request, the conferees used updated Department of Defense execution data to make many of their adjustments. They also made rescissions to un-executable programs and took back unobligated funds resulting from revised economic assumptions in order to offset much-needed increases to the defense budget. I note that the increase is primarily focused on operations and maintenance, $723.6 million, an area most critical to the Department. Specifically, I support increases to the Navy flying hour account by $140 million, the ship operations account by $225 million, the Air Force airlift account by $626 million, and the Army's logistical support account by $1.03 billion. These increases will go a long way in helping our troops around the globe. In the procurement line, much of the funding is related to purchasing advanced C3I equipment. And in the Research and Development line, the conferees provided additional funds to upgrade existing C3I programs, increases that will be crucial to the successful execution of our war on terror. Additionally, this bill includes the American Service Members' Protection Act language that was proposed by both Chambers, and it maintains the Senate's provision giving our military the flexibility to conduct operations in coordination with international efforts to pursue foreign nationals accused of war crimes, crimes against humanity, and genocide. On the domestic front, I would also note that the conference report includes $100 million in disaster assistance for fires and floods, funds that are critically important to the State of Arizona. I strongly believe that this amount of funding is still woefully inadequate to address the dire circumstances surrounding the fires in the Western States; however, I am confident that there will be other legislative opportunities in which to adequately fund these firefighting efforts. While this bill has improved in many ways, I still believe it spends too much money on low-priority programs that are not truly emergencies, for example, provisions dealing with another Amtrak bailout and numerous non-emergency pork projects such as coral reef mapping. That said, especially given the need to support our war on terrorism, the merits of this legislation now outweigh its deficiencies. Although not perfect, the bill deserves the support of my colleagues. President Bush has asked that we get this bill to his desk before August recess. I am glad that we will be able to do so.

Mr. KYL

Mr. KYL. Madam President, I rise in support of the nomination of Dr. Richard Carmona to be Surgeon General. He is clearly the person we need at this critical time for this position. Dr. Carmona is exceptionally qualified for this important position. The President has announced that the new Surgeon General will address a number of important health issues, among them, helping America prepare to respond to major public health emergencies, such as bioterrorism. Dr. Carmona's education and extensive career in public service have prepared him to lead ably on all health issues facing Americans today. He received his medical education from the University of California at San Francisco and a Masters of Public Health at the University of Arizona. He is currently a Clinical Professor of Surgery, Public Health, and Family and Community Medicine at the University of Arizona, as well as Chairman of the State of Arizona Southern Regional Emergency Medical System. Dr. Carmona has published numerous scholarly articles on such varied subjects as emergency care, trauma care and responses to terrorism. He is also currently a Deputy Sheriff in the Pima County Sheriff's Department SWAT team and the National Association of Police Organizations named him the Nation's Top Cop in 2000. Dr. Carmona has also been an administrator of a community hospital. Additionally, he was a Special Forces Medic and served in Vietnam, where he received the Bronze Star, two Purple Hearts, and a Combat Medical Badge. As you can tell, Dr. Carmona not only has the medical experience to be Surgeon General, but also other expertise that will be necessary for the Surgeon General position at this crucial time. Unfortunately, one of the key areas Dr. Carmona will be involved in is bioterrorism. He will provide valuable leadership in helping to prepare the United States for possible future attacks. It is very important for America to be able to turn to trusted leaders if such a terrible event should occur and Dr. Carmona has the experience and skills necessary to respond to such events. I have no doubt that Dr. Carmona will be an excellent Surgeon General and help our nation deal not only with bioterrorism, but other pressing issues such as alcohol and drug abuse, and overcrowding in hospital emergency rooms. Dr. Carmona will also be able to bring guidance in these other critical areas. His experience in trauma care will help guide him in dealing with the multitude of problems that are affecting hospital emergency rooms. I urge every Senator to support his confirmation.