Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, Senator Feinstein and I were upstairs a moment ago during the time allotted for discussion of the bill in general. Let me take a couple of minutes, if I could, to express my support also for the amendment pending that Senator Byrd offered. As Senator Feinstein said, it will strengthen what we are trying to do with the student visa program. Mr. President, the Judiciary Committee has a couple of subcommittees of jurisdiction. Senator Kennedy and Senator Brownback are the chairman and ranking member of the Immigration Subcommittee, and I have the honor of serving on that committee, as does Senator Feinstein. She chairs and I am ranking member of the Terrorism Subcommittee. So we have had the ability in both of these subcommittees to hold hearings and to discover after September 11 areas in which we can improve our immigration laws to make it much more difficult for terrorists to enter this country or to stay here illegally. This legislation is designed to close as many of those so-called loopholes as we can. I think it is a good effort in that regard. Each of the amendments that will be offered by Senator Byrd, in one way or another, strengthens the bill we have already offered. I wanted to make two quick comments. Eighteen of the terrorists who entered the country and flew airplanes into the World Trade Center, the Pentagon, and into the ground in Pennsylvania came in using B-1, B-2 tourist visas. According to the Department of State, 47 foreign-born individuals, including these 19, have been charged with, pled guilty to, or been convicted of involvement in terrorism over the past decade. All 47 of these people had contacts with an INS inspector. Yet, somehow, they were able to get into the country. The 19th of the 19 was Hani Hanjour. He entered the country on an F1 student visa, the subject of the specific amendment now before us. He supposedly came here to attend classes and study English. He never showed up for class. The school did not notify the authorities that he never attended classes. He overstayed his visa and just melted into our society. Another example of one of the terrorists, Mohamed Atta, came in on a tourist visa. According to several sources, he was placed on the FBI watch list 6 weeks before the terrorist attacks. But his name was never entered into INS's system. Before his visa expired in December of 2000, Atta actually went to the INS to change his status to that of student. After December of 2000, even without the information that showed his placement on a watch list, he should not have been allowed to reenter the country. Yet, on June 3, 2000, at Newark International Airport on a Czech Air flight from Prague, after being questioned by INS for an hour, he was admitted back into the United States. My point of illustrating with these two examples is to point out that the INS had contact with all of these people. They clearly should have been caught, but they were not caught because the INS officials either did not have the information they should have had or for some other reason did not ask the right questions. Mary Ryan, who is one of the people who testified before Senator Feinstein's subcommittee--her title is Assistant Secretary for Consular Affairs, Department of State--actually said: we felt like the woman driving through the school zone at 15 miles an hour and the little girl runs out behind the parked cars. She gets hit, and we feel terrible, but what could we do about it? That is why we set about trying to figure out what we could do about it. One provision is to tighten up the student visa requirements. Without going into anything further, I think it sets the stage for what we are trying to accomplish and trying to close some of these loopholes, how we hope it will have some good, positive effect--not the overall answer to terrorism, but it will help to some extent. As I said, the amendments Senator Byrd offers strengthen the bill. I am supportive of them, and I hope we can get to final passage.

Mr. KYL

Mr. KYL. Mr. President, I rise today to introduce legislation that would provide for a five-year temporary suspension of the duty on imports of Nylon MXD6, through December 31, 2007. Nylon MXD6 is polyamide, classified under Chapter 39 of the Harmonized Tariff Schedule of the United States, subheading 3908.10.10, HTSUS. It is a tough, transparent resin that is used by several companies throughout the U.S. to make packaging for food and other products. Temporary duty suspensions, when properly utilized, are an effective way to confer ``win-win'' benefits on consumers and the economy. Suspending the duty on an imported good encourages increased supply and availability of that good, and such increases benefit U.S. consumers. So long as we first ensure that no domestic businesses will be harmed, and that the impact on Federal revenue is negligible, such temporary duty suspensions clearly make for smart trade policy. The merits of a temporary duty-suspension bill are typically judged based on whether or not it is ``non-controversial.'' Such a bill is generally considered non-controversial only if there are no domestic producers who would be harmed by increased imports, and the revenue impact would be de minimis, that is, roughly $500,000 per year or less. Based on these criteria, this bill should not be controversial. It is my understanding that there are no domestic producers of Nylon MXD6, and that the duties paid on imports of the resin have historically been at or under $500,000. In addition to the usual benefits of this kind of legislation, it is my understanding that the importer of Nylon MXD6, Mitsubishi Gas Chemical-America, has plans to establish a domestic production facility in the United States, and hopes to have it on-line before this proposed duty suspension would expire. Temporarily suspending the duty on the compound would help ease the company's transition to domestic production. The planned facility, in turn, would create new U.S. manufacturing jobs and contribute to our overall economic vitality. The facility would purchase domestically one of the two principal raw materials used to make the resin, and the revenue that local, state, and federal governments would collect from a permanently established, domestic production facility are likely to far outweigh the amount that will be collected through the duties imposed under current law. This is a good bill with no substantial costs involved. I urge my colleagues to support it.

Mr. KYL

Mr. KYL. Mr. President, I rise today to introduce legislation that would provide for a five-year temporary suspension of the duty on imports of Nylon MXD6, through December 31, 2007. Nylon MXD6 is polyamide, classified under Chapter 39 of the Harmonized Tariff Schedule of the United States, subheading 3908.10.10, HTSUS. It is a tough, transparent resin that is used by several companies throughout the U.S. to make packaging for food and other products. Temporary duty suspensions, when properly utilized, are an effective way to confer ``win-win'' benefits on consumers and the economy. Suspending the duty on an imported good encourages increased supply and availability of that good, and such increases benefit U.S. consumers. So long as we first ensure that no domestic businesses will be harmed, and that the impact on Federal revenue is negligible, such temporary duty suspensions clearly make for smart trade policy. The merits of a temporary duty-suspension bill are typically judged based on whether or not it is ``non-controversial.'' Such a bill is generally considered non-controversial only if there are no domestic producers who would be harmed by increased imports, and the revenue impact would be de minimis, that is, roughly $500,000 per year or less. Based on these criteria, this bill should not be controversial. It is my understanding that there are no domestic producers of Nylon MXD6, and that the duties paid on imports of the resin have historically been at or under $500,000. In addition to the usual benefits of this kind of legislation, it is my understanding that the importer of Nylon MXD6, Mitsubishi Gas Chemical-America, has plans to establish a domestic production facility in the United States, and hopes to have it on-line before this proposed duty suspension would expire. Temporarily suspending the duty on the compound would help ease the company's transition to domestic production. The planned facility, in turn, would create new U.S. manufacturing jobs and contribute to our overall economic vitality. The facility would purchase domestically one of the two principal raw materials used to make the resin, and the revenue that local, state, and federal governments would collect from a permanently established, domestic production facility are likely to far outweigh the amount that will be collected through the duties imposed under current law. This is a good bill with no substantial costs involved. I urge my colleagues to support it.

Mr. KYL

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

Mr. KYL. In the remaining time I have I would like to address a matter that will be before the Senate as the pending business as soon as we conclude morning business; that is, the Enhanced Border Security and Visa Entry Reform Act, H.R. 3525. The sponsors of this legislation all spoke to the reasons for this legislation on Friday when the matter was brought to the floor at 11:30 by unanimous consent request of the majority leader. I thank Majority Leader Daschle for bringing this matter to the Senate floor so we can dispose of it. A little bit of history is in order. The sponsors of the legislation--Senators Kennedy, Brownback, Feinstein, and myself--had worked hard to develop this legislation in the aftermath of September 11 because we held hearings in two different subcommittees of the Judiciary Committee that revealed loopholes in our immigration laws, loopholes through which some of the terrorists who came here and carried out their horrible attack on September 11 were able to gain entry into the United States. They came on legal visas, visas that in some cases should never have been granted. They were here under student visas, even though they no longer attended the classes they had signed up to attend. In the case of some of them, they were out of status by the time of September 11. We set about to identify loopholes in our immigration and visa laws that we could close to make it much more difficult for terrorists to gain entry into the United States. That legislation was developed before the end of last year's congressional session and was actually adopted by the House of Representatives just before we adjourned for the year. We attempted to have it adopted by the Senate, but Senator Byrd objected on the grounds that it required Senate debate, and he didn't want to simply adopt it as a matter of unanimous consent. At the beginning of this year, we sought to find ways to bring the bill to the Senate floor for that debate and amendment, if need be, and had not been successful until the end of last week when, as I said, the majority leader successfully propounded a unanimous consent request that the Senate take the bill up. There is no limitation on time nor on amendments, but there has been such a strong outpouring of support for the bill--indeed, I think there are some 61 cosponsors, and that probably reflects the fact we have not gotten around to all the Members of the Senate, that it is clear the bill can pass very quickly as soon as we are ready to call for the final vote. But out of deference to those who believed it did need debate, that opportunity has been made available. The only people I am aware of who spoke on the legislation on Friday were the four cosponsors: Senators Kennedy, Brownback, Feinstein, and myself. We all laid out the case, to one degree or another, for the legislation and urged our colleagues who may have something to say about it to come to the floor and express themselves. Indeed, if there were amendments, we would be happy to entertain those amendments. We are obviously hopeful there will not be, so we can simply adopt the legislation approved by the House and we can send it to the President for his signature. Why is this our goal? Each week that goes by without this legislation being in place represents an opportunity for a terrorist to gain entry into the United States. We have to close the loopholes. Most of the actions the legislation calls for are going to take time to implement, so it is not as if we can slam the door shut the minute the President signs the bill. We have to put into place procedures, for example, whereby the FBI, CIA, international organizations, and others can all make available, to the people who grant visas, information that bears upon the qualifications of the people seeking entry to the United States, people who apply for the visas--information that might suggest, for example, that there is a connection with a terrorist group and therefore the visa ought to be denied. That is going to take time to implement, as will other provisions of the legislation. So time is wasting. We know there is no--I was going to state it in the negative. I was going to say there is no evidence the terrorists have given up the ghost here. I think there is a lot of evidence that they will try to strike us when they believe they can, and when they see us as having a point of vulnerability. That is why we have to begin to close these windows of vulnerability as soon as possible. The head of the INS has indicated he thinks some of the timeframes for achievement of results under this legislation may even be pretty difficult for INS to meet, which is to say it is all the more important to begin now to close these loopholes because it is going to take a while to get everything in place, to effectuate all of the pieces of this legislation. That goes back to my point that we have to get this signed as soon as possible. If there are amendments to the legislation here on the Senate floor, then it will have to go to a conference committee. That is all right, assuming we can get the conference to act quickly and bring the bill back to both the House and the Senate. But it is important we do that so the President can sign the legislation. I appeal to my colleagues who have something to say about this, especially those who believed we should not consider it without debate on the floor, to come to the Chamber and explain their views on it, and to offer any amendments if they have amendments, so we can deal with those amendments and get on with our business. I know the majority leader was reluctant to do this before without an agreement to have a specific time limit on debate because he wanted to complete work on the energy bill by the end of this week--as do, I think, almost all of us. I am sure all of us would like to be done with the energy bill. But we are not going to be able to finish that if we cannot quickly finish the Enhanced Border Security and Visa Entry Reform Act. Again, I call upon my colleagues to come over. Let's finish the job and get this done. I would like to say one other thing because there is a little element of confusion about something in section 245(i). Section 245(i) is a provision of the immigration law that allows for people who want to gain permanent status in the United States under two specific provisions to do so. Its provisions had terminated with respect to a large group of people, maybe 200,000 or 300,000 people, who wanted to gain permanent residence but whose legal status in the United States terminated and therefore they would have had to go back to their country of origin and apply for that status. What some people wanted to do, including the administration, was to extend the period of time that they could make their application and complete that process so they could be allowed to stay in the United States permanently. Some of this involves reunification of families, for example. In an effort to support the administration and to accommodate the interests of those who wanted to do that, there was an agreement between Senator Kennedy and myself--and others--about exactly how that should be done. We both committed ourselves to trying to achieve the ratification of the temporary extension of section 245(i). The House of Representatives actually passed a second version of the Enhanced Border Security and Visa Entry Reform Act, a version which included section 245(i) with it. They did that earlier this year. That bill is pending at the desk. It has not been called up for consideration, but I want my colleagues to know that is where this debate about section 245(i) comes into effect. There are some who believe section 245(i) represents a grant of amnesty to people. Perhaps one could argue that is, to a limited extent, true. They are concerned that it represents the first step in a broader grant of amnesty. I hope that is not the case. But they have some concerns they have expressed about it. I hope we do not confuse the issue of 245(i) with H.R. 3525, the bill pending at the desk that we will be taking up again in just a few minutes--we can quickly pass H.R. 3525, get it to the President for signature, and then deal with section 245(i)--because I believe we need to deal with it, but I believe it will be easier to deal with outside the context of H.R. 3525. Here is the reason I say that. I urge my colleagues who may be thinking about combining the two just to think about this for a moment. I believe we have an excellent chance of getting both of these things passed. But I think we may have an excellent chance of getting neither of them passed if they are combined. The reason is, I am concerned the Members of the House of Representatives may not be as inclined to vote for section 245(i) again as they were before. As a result, if we put this into conference and the question were put to the Members of the House, I am not certain they would vote for it. Nor am I sure that those who are opposed to section 245(i) in this body would permit it to come to a vote if it had to be brought back to this body as part of the Border Security and Visa Entry Reform Act. So I urge my colleagues who support this to bear with us and understand we can have both of these things if we treat them separately. Those who oppose 245(i) will have a full opportunity to debate it and amend it if necessary, and to have a vote on it. But I hope that in an effort to kill section 245(i), they will not also be willing to kill H.R. 3525. I just tell my colleagues, if you try to combine 245(i) with H.R. 3525, you may be signing the death warrant for both, and I do not think that is the intent, of some people, anyway, who have talked about the possibility of filing an amendment relating to section 245(i) on H.R. 3525. So I call on my colleagues to come to the floor and debate this legislation. If they have amendments, let's offer the amendments and try to dispose of them. I see Senator Kennedy is here, with whom I worked closely on this legislation. Frankly, we would not be where we are without all the work he has put into it. I am sure he will join me in asking those who have anything at all to say about it to come to the floor and say it so we can get on with it, take our vote, and then get back on the energy bill which obviously we want to conclude by the end of this week.

Mr. KYL

Mr. KYL. Mr. President, Secretary Powell at this very moment in the Middle East is striving mightily to effect a cease fire and develop more support for our war on terror, especially to the extent we may have to take military action against the country of Iraq. It is in that context that I discuss today another way the administration has prepared to deal specifically with the threat from Iraq and other countries similarly situated in the Middle East. On December 13, following a period of high-level negotiations, President Bush notified Russia of his intent to withdraw the United States from the 1972 Anti-Ballistic Missile Treaty. Since then, I have addressed the Senate on the military justification for the President's decision and the question of how much a national ballistic missile defense system will cost. Today, I would like to discuss the President's constitutional authority to unilaterally exercise the right of withdrawal without the consent of the Senate or Congress as a whole. The President withdrew the United States from the treaty pursuant to Article XV, which allows either party to withdraw upon 6 months' notice if it determines that ``extraordinary events . . . have jeopardized its supreme interests.'' I believe his action is a proper exercise of the authority of the chief executive to terminate a formal treaty to which the Senate had given its consent pursuant to Article II, Section 2, of the Constitution. The question of Presidential authority is illustrated by the following assertion in a New York Times editorial by Bruce Ackerman, a professor of constitutional law at Yale: Presidents don't have the power to enter into treaties unilaterally . . . and once a treaty enters into force, the Constitution makes it part of the ``supreme law of the land'' just like a statute. Presidents can't terminate statutes they don't like. They must persuade both houses of Congress to join in a repeal. While the Constitution is silent with respect to treaty withdrawal, the preponderance of writings and opinions on this subject strongly suggests that the Framers intended for the authority to be vested in the President. Article II, Section 1 of the Constitution declares that the ``executive power shall be vested in the President.'' And Article II, Section 2 makes clear that the President ``shall be Commander-in- Chief,'' that he shall appoint, with the advice and consent of the Senate, and receive ambassadors, and that he ``shall have power, by and with the advice and consent of the Senate, to make treaties.'' The Constitution approaches differently the duties of Congress, giving the legislative branch--in Article I's Vesting Clause--only the powers ``herein granted.'' The difference in language indicates that Congress' legislative powers are limited to the list enumerated in Article I, Section 8, while the President's powers include inherent executive authorities that are unenumerated in the Constitution. Thus, any ambiguities in the allocation of a power that is executive in nature--particularly in foreign affairs--should be resolved in favor of the executive branch. As James Madison once wrote in a letter to a friend, ``the Executive power being in general terms vested in the President, all power of an Executive nature not particularly taken away must belong to that department . . .'' The treaty clause's location in Article II clearly implies that treaty power is an executive one. The Senate's role in making treaties is merely a check on the President's otherwise plenary power--hence the absence of any mention of treaty-making power in Article I, Section 8. Treaty withdrawal remains an unenumerated power--one that must logically fall within the President's general executive power. A careful reading of the writings of the Framers strongly also confirms that they viewed treaties differently than domestic law, and that, while they desired to put more authority over domestic affairs in the hands of the elected legislative representatives, they believed that the conduct of foreign affairs lay primarily with the President. As Secretary of State Thomas Jefferson observed during the first Washington Administration, ``The constitution has divided the powers of government into three branches [and] has declared that `the executive powers shall be vested in the president,' submitting only special articles of it to a negative by the Senate.'' Due to this structure, Jefferson continued, ``The transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.'' In the same vein is the history of Supreme Court rulings on the subject of presidential powers. The Court has concluded that the President has the leading constitutional role in managing the nation's foreign relations. As one commentator, David Scheffer, noted in the Harvard International Law Journal, ``Constitutional history confirms time and again that in testing [the limits of presidential plenary powers], the courts have deferred to the President's foreign relations powers when the constitution fails to enumerate specific powers to Congress.'' In Harlow v. Fitzgerald, the Supreme Court observed that responsibility for the conduct of foreign affairs and for protecting the national security are `` `central' Presidential domains.'' Similarly, in the Department of Navy v. Egan, the Supreme Court `` `recognized the generally accepted view that foreign policy [is] the province and responsibility of the Executive.' '' The case most frequently cited as confirming that the President is the supreme authority in the Nation's conduct of foreign affairs is the Supreme Court's 1936 decision in the United States v. Curtiss-Wright Corp. In that case, the Court reversed the decision of the district court, and affirmed the constitutionality of President Franklin Roosevelt's declaration of an arms embargo against both sides in the conflict between Peru and Bolivia over the Chaco region. As stated in the opinion issued by Justice Sutherland, the power to conduct foreign affairs is ``the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations--a power which does not require for its exercise an act of Congress.'' Treaties represent a central tool for the successful conduct of foreign policy. Such international agreements typically reflect the circumstances of particular security or economic conditions which may, of course, change over time. As such, in the course of protecting national security, recognizing foreign governments, or pursuing diplomatic objectives, a President may determine that it is necessary to terminate specific United States' treaty obligations. That is precisely the subject we are facing with respect to the President's withdrawal from the 1972 ABM treaty. As the D.C. Circuit stated in Goldwater v. Carter, ``The determination of the conduct of the United States in regard to treaties is an instance of what has broadly been called `the foreign affairs power' of the President. . . . That status is not confined to the service of the President as a channel of communication . . . but embraces an active policy determination as to the conduct of the United States in regard to a treaty in response to numerous problems and circumstances as they arise.'' For these reasons, other unenumerated treaty powers have been understood to rest within the plenary presidential authority. For example, the President alone decides whether to negotiate an international agreement, and also controls the subject, course, and scope of negotiations. Additionally, the President has the sole discretion whether to sign a treaty and whether to submit a treaty to the Senate for advice and consent. The President may even choose not to ratify a treaty after the Senate has approved it. Vesting the power to terminate a treaty in the President is consistent with the accepted view that other such unenumerated powers are the responsibility of the President. Furthermore, the executive branch has long maintained that it has the power to terminate treaties unilaterally. The Justice Department has argued that, ``Just as the Senate or Congress cannot bind the United States to a treaty without the President's active participation and approval, they cannot continue a treaty commitment that the President has determined is contrary to the security or diplomatic interests of the United States and is terminable under international law.'' The State Department, in a 1978 memorandum advising that the President had the authority under the Constitution to terminate the Mutual Defense Treaty without Congressional or Senate action, opined that, ``The President's constitutional power to give notice of termination provided for by the terms of a treaty derives from the President's authority and responsibility as chief executive to conduct the nation's foreign affairs and execute the laws.'' One of the most well-known instances of treaty termination in recent history is former President Carter's decision to withdraw the United States from the Mutual Defense Treaty of 1954 between the U.S. and Taiwan in order to normalize relations with the People's Republic of China. That decision resulted in an extensive debate in the Senate and among scholars as to the President's constitutional authority to withdraw the United States from a treaty without the approval of the Senate or Congress. Several members of Congress, including former Arizona Senator Barry Goldwater, filed suit against President Carter, and the full Senate addressed treaty termination in a series of legislation that was debated by a number of my distinguished colleagues who remain in this body today. Senator Kennedy wrote a persuasive article for Policy Review in 1979 strongly supporting the notion that treaty termination is an executive power not requiring legislative consent. In that article, he argued: Article 10 of the treaty in question [the Mutual Defense Treaty] provided for its termination. In giving notice of an intent to terminate the treaty pursuant to that provision, the President was not violating the treaty but acting according to its terms--terms that were approved by the Senate when it consented to the treaty. As Charles C. Hyde, former Legal Advisor to the Department of State, put it in his leading treatise: ``The President is not believed . . . to lack authority to denounce, in pursuance of its terms, a treaty to which the United States is a party, without legislative approval. In taking such action, he is merely exercising in behalf of the nation a privilege already conferred upon it by the agreement'' . . . At the time that each treaty is made and submitted [for the advice and consent of the Senate, Senators] should seek to condition Senate approval upon acceptance of the Senate's participation in its termination. The Senate might have done so when it consented to the 1954 defense treaty with the Republic of China, but it did not. Any attempt, at this point, to invalidate the President's notice of intention to terminate that treaty is not only unwise . . . but also without legal foundation. As with the 1954 treaty, the ABM Treaty contains a withdrawal clause--article XV(2)--for extraordinary events. That clause states: Each party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests. It shall give notice of its decision to the other Party six months prior to withdrawal from the Treaty. That, of course, is precisely what President Bush did. The President was fully justified in using that withdrawal clause unilaterally. Just as the Senate did not condition its approval of the Mutual Defense Treaty with Taiwan upon its participation in termination of that treaty, the Senate also did not place such a condition upon its approval of the ABM Treaty. Senator Goldwater's suit over the President's termination of the Mutual Defense Treaty with Taiwan led to conflicting decisions by the trial and appellate courts and an eventual non-decision by the Supreme Court. The D.C. Circuit had reversed the trial court's decision, and upheld President Carter's authority to terminate the Mutual Defense Treaty, rejecting the arguments that (1) the advice and consent role of the Senate in making treaties implies a similar role in termination, and (2) that, because a treaty is part of the law of the land, a minimum of a statute is required to terminate it. The Circuit Court pointed out that the President is responsible for determining whether a treaty has been breached by another party, whether a treaty is no longer viable because of changed circumstances, and even whether to ratify a treaty after the Senate has given its advice and consent. The court said that, ``In contrast to the lawmaking power, the constitutional initiative in the treaty-making field is in the President, not Congress.'' Moreover, the court stated that, to require Senate or Congressional consent to terminate a treaty would lock the United States into ``all of its international obligations, even if the President and two-thirds of the Senate minus one firmly believed that the proper course for the United States was to terminate a treaty.'' It would, therefore, deny the President the authority and flexibility ``necessary to conduct our foreign policy in a rational and effective manner.'' Finally, the court determined that ``of central significance'' was that the Mutual Defense Treaty--as my colleague Senator Kennedy had also pointed out in his article--contains a termination clause that ``is without conditions,'' and spells out no role for either the Senate or Congress. As a consequence, the court concluded, the power to act under that clause ``devolves upon the President.'' The facts are the same with the 1972 ABM Treaty, and, therefore, the law must also be consistent. I should note that President Carter did not stand alone in exercising his power to unilaterally terminate a treaty. According to David Gray Adler's The Constitution and the Termination of Treaties, unilateral executive termination has been practiced since the Lincoln Administration, and seems to be the most commonly used method of terminating treaties. And as the D.C. Circuit stated in Goldwater v. Carter, It is not without significance that out of all of the historical precedents brought to our attention, in no situation has a treaty been continued over the opposition of the President. It is interesting to me members of the Senate have also raised the issue of the President's authority to withdraw from a particular treaty without legislative consent in the context of debating the resolution of ratification of a treaty. During the Senate's consideration of the Comprehensive Test Ban Treaty, CTBT, proponents of the CTBT argued that Safeguard F of that treaty meant that the President alone could exercise the right of withdrawal from the treaty. Safeguard F states: If the President of the United States is informed by the Secretary of Defense and the Secretary of Energy--advised by the Nuclear Weapons Council, the Directors of DOE's nuclear weapons laboratories and the Commander of the U.S. Strategic Command-- that a high level of confidence in the safety or reliability of a nuclear weapon type which the two Secretaries consider to be critical to our nuclear deterrent could no longer be certified, the President, in consultation with Congress, would be prepared to withdraw from the CTBT under the standard ``supreme national interests'' clause in order to conduct whatever testing might be required. As Senator Biden stated on the Senate floor on October 12, 1999: They have to assume, then, that the President, knowing that this stockpile is no longer reliable, would look at the U.S. Congress and say: I, President whomever, next President, certify that we can rely on our stockpile. They either have to assume that or they have to assume their concern about our stockpile is not a problem because the moment the President is told that, he has to call us and tell us and withdraw from the treaty . . . Senator Boxer likewise argued that withdrawal from the treaty would be exclusively the responsibility of the President during her remarks on the Senate floor on October 13, 1999, stating, If our stockpile is not safe and reliable, the President will withdraw from the treaty. There doesn't have to be a Senate vote. It's not going to get bogged down in the rules of the Senate. If there is a supreme national interest in withdrawing from the treaty, we will withdraw. Indeed, even some Senators openly opposed to the President's decision to withdraw the United States from the ABM Treaty have recognized his constitutional authority to make the decision without the consent of the Senate or Congress. In December 2001, Inside Missile Defense quoted Senator Daschle on the subject: It's my understanding that the President has the unilateral authority to make this decision. But we are researching just what specific legal options the Congress has, and we'll have to say more about that later . . . at this point, we're very limited in what options we have legislatively. Similarly, according to a July 2001 article in the New York Times, Senator Levin stated, The president alone has the right to withdraw from a treaty, but Congress has the heavy responsibility of determining whether or not to appropriate the funds for activities that conflict with a treaty. My own view is that while it would be anomalous for Congress to withhold funding for a national missile defense system, Senator Levin is correct on both counts: withdrawal is the President's decision and any funding for anything must be through Congressional appropriation. In conclusion, I believe history will judge President Bush's notice of withdrawal from the 1972 ABM Treaty as equal in importance to his historic decision to commit the United States to the war on terrorism. With the withdrawal decision, he has paved the way for the United States to work aggressively toward deployment of defenses to protect the American people against the growing threat of a ballistic missile attack. In announcing his intent to withdraw the United States from the treaty, President Bush acted in accordance with changed international circumstances and our national interests--reestablishing the important doctrine of ``peace through strength'' as the basis for U.S. security policy. And he acted within the authority granted by the Constitution to the Chief Executive. I commend the President for arriving at a very difficult decision. As we all know, the role of Congress has not ended with our withdrawal from the treaty--the annual budget process can be used to either undermine or support the President's decision, a matter I will address in a future presentation. But for now, an essential first step in moving forward to protect the United States against a serious threat has finally been taken, and the President should be commended for his action.

Mr. KYL

Mr. KYL. Madam President, I thank Senator Feinstein for her work on this amendment for several years now. She was tremendously helpful in working with the past administration. She and I have both worked with various victims groups. I think they rightly regard her as a champion of victims' rights in this country. She mentioned that next week is National Crime Victims' Rights Week. It begins Sunday. It is fitting that we could introduce this legislation today because tomorrow, at a ceremony at the Department of Justice, it is my understanding there will be a very important announcement by the President and the Attorney General with respect to this amendment. Just to be very brief about our support for this amendment at this time, I will simply address the differences between this year's amendment and last year's amendment. Even though last year's amendment to the Constitution had 40 cosponsors and was bipartisan, and was considered--incidently, I appreciate the efforts of the distinguished Presiding Officer as chairman of the committee, the Judiciary Committee. We had a strong bipartisan vote of 12 to 5 for this amendment out of the Judiciary Committee last year. I appreciate the Presiding Officer's assistance in that, notwithstanding some differences of opinion with respect to the specifics of the amendment. We withdrew the bill from consideration on the floor when we knew it would be the subject of prolonged discussion--we shall put it that way--and agreed to consider the criticism of some of the opponents at that time that the phrasing of the language was not elegant enough and perhaps too wordy. Now, the constitutional amendment contains 12 key lines of text with respect to the rights of victims. There are another 10 lines of text that provide for exceptions or caveats to that grant of constitutional protection. I think the language much more closely approximates the other amendments to the U.S. Constitution. I thank Professor Laurence Tribe for his consideration, expertise, and assistance in developing the language toward that end. I am hopeful my colleagues will give a close look at this new protection. The rights protected are essentially the same, but I think the way in which it is done is more in line with other constitutional amendments. I am hopeful we will have an opportunity to make a substantive case for this amendment and to discuss in detail, with our colleagues, the reasons for our desire that we get a vote on it this year. I will just conclude by noting--especially because starting Sunday we will be celebrating National Crime Victims' Rights Week--the number of groups that are represented here in Washington to participate in various presentations and celebrations of National Crime Victims' Rights Week and who will also be participating in the meeting tomorrow at the Department of Justice. Supporters include the National Governors Association, which has voted in favor of an amendment. Both the Republican and Democratic Party platforms of the last Presidential election and their nominees supported such an amendment. It is supported by major national victims' rights groups, including Parents of Murdered Children, Mothers Against Drunk Driving, and the National Organization for Victim Assistance, in addition to the Stephanie Roper Foundation, the Arizona Voice for the Crime Victims, Crime Victims United, and Memory of Victims Everywhere. And especially, in addition to Senator Feinstein and the Attorney General of the United States, who has been very helpful in helping us formulate the specific wording of the amendment, I thank the National Organization for Victims Assistance, the National Constitutional Amendment Network, Mothers Against Drunk Driving, Parents of Murdered Children, Roberta Roper, and the Stephanie Roper Foundation, and Steve Twist, who has been enormously supportive in working the language and coordinating the efforts with these various victims' rights groups. Steve is a lawyer in Phoenix, AZ, and has been indispensable in my efforts. Finally, Mr. President, Senator Feinstein has asked that I have printed in the Record a letter dated April 15, 2002, from Laurence H. Tribe to Senator Feinstein and myself. I will just read two excerpts from it, conclude my remarks, and submit it for the Record. Professor Tribe says: Dear Senators Feinstein and Kyl: I think that you have done a splendid job at distilling the prior versions of the Victims' Rights Amendment into a form that would be worthy of a constitutional amendment--an amendment to our most fundamental legal charter, which I agree ought never be altered lightly. . . . How best to protect that right without compromising either the fundamental rights of the accused or the important prerogatives of the prosecution is not always a simple matter, but I think your final working draft of April 13, 2002, resolves that problem in a thoughtful and sensitive way, improving in a number of respects on the earlier drafts that I have seen. Among other things, the greater brevity and clarity of this version makes it more fitting for inclusion in our basic law. That you achieved such conciseness while fully protecting defendants' rights and accommodating the legitimate concerns that have been voiced about prosecutorial power and presidential authority is no mean feat. I happily congratulate you both on attaining it. I would say, editorially, not without substantial help from Professor Tribe himself. Madam President, I ask unanimous consent that this letter be printed in the Record.

Mr. KYL

Mr. KYL. Madam President, I thank Senator Feinstein for her work on this amendment for several years now. She was tremendously helpful in working with the past administration. She and I have both worked with various victims groups. I think they rightly regard her as a champion of victims' rights in this country. She mentioned that next week is National Crime Victims' Rights Week. It begins Sunday. It is fitting that we could introduce this legislation today because tomorrow, at a ceremony at the Department of Justice, it is my understanding there will be a very important announcement by the President and the Attorney General with respect to this amendment. Just to be very brief about our support for this amendment at this time, I will simply address the differences between this year's amendment and last year's amendment. Even though last year's amendment to the Constitution had 40 cosponsors and was bipartisan, and was considered--incidently, I appreciate the efforts of the distinguished Presiding Officer as chairman of the committee, the Judiciary Committee. We had a strong bipartisan vote of 12 to 5 for this amendment out of the Judiciary Committee last year. I appreciate the Presiding Officer's assistance in that, notwithstanding some differences of opinion with respect to the specifics of the amendment. We withdrew the bill from consideration on the floor when we knew it would be the subject of prolonged discussion--we shall put it that way--and agreed to consider the criticism of some of the opponents at that time that the phrasing of the language was not elegant enough and perhaps too wordy. Now, the constitutional amendment contains 12 key lines of text with respect to the rights of victims. There are another 10 lines of text that provide for exceptions or caveats to that grant of constitutional protection. I think the language much more closely approximates the other amendments to the U.S. Constitution. I thank Professor Laurence Tribe for his consideration, expertise, and assistance in developing the language toward that end. I am hopeful my colleagues will give a close look at this new protection. The rights protected are essentially the same, but I think the way in which it is done is more in line with other constitutional amendments. I am hopeful we will have an opportunity to make a substantive case for this amendment and to discuss in detail, with our colleagues, the reasons for our desire that we get a vote on it this year. I will just conclude by noting--especially because starting Sunday we will be celebrating National Crime Victims' Rights Week--the number of groups that are represented here in Washington to participate in various presentations and celebrations of National Crime Victims' Rights Week and who will also be participating in the meeting tomorrow at the Department of Justice. Supporters include the National Governors Association, which has voted in favor of an amendment. Both the Republican and Democratic Party platforms of the last Presidential election and their nominees supported such an amendment. It is supported by major national victims' rights groups, including Parents of Murdered Children, Mothers Against Drunk Driving, and the National Organization for Victim Assistance, in addition to the Stephanie Roper Foundation, the Arizona Voice for the Crime Victims, Crime Victims United, and Memory of Victims Everywhere. And especially, in addition to Senator Feinstein and the Attorney General of the United States, who has been very helpful in helping us formulate the specific wording of the amendment, I thank the National Organization for Victims Assistance, the National Constitutional Amendment Network, Mothers Against Drunk Driving, Parents of Murdered Children, Roberta Roper, and the Stephanie Roper Foundation, and Steve Twist, who has been enormously supportive in working the language and coordinating the efforts with these various victims' rights groups. Steve is a lawyer in Phoenix, AZ, and has been indispensable in my efforts. Finally, Mr. President, Senator Feinstein has asked that I have printed in the Record a letter dated April 15, 2002, from Laurence H. Tribe to Senator Feinstein and myself. I will just read two excerpts from it, conclude my remarks, and submit it for the Record. Professor Tribe says: Dear Senators Feinstein and Kyl: I think that you have done a splendid job at distilling the prior versions of the Victims' Rights Amendment into a form that would be worthy of a constitutional amendment--an amendment to our most fundamental legal charter, which I agree ought never be altered lightly. . . . How best to protect that right without compromising either the fundamental rights of the accused or the important prerogatives of the prosecution is not always a simple matter, but I think your final working draft of April 13, 2002, resolves that problem in a thoughtful and sensitive way, improving in a number of respects on the earlier drafts that I have seen. Among other things, the greater brevity and clarity of this version makes it more fitting for inclusion in our basic law. That you achieved such conciseness while fully protecting defendants' rights and accommodating the legitimate concerns that have been voiced about prosecutorial power and presidential authority is no mean feat. I happily congratulate you both on attaining it. I would say, editorially, not without substantial help from Professor Tribe himself. Madam President, I ask unanimous consent that this letter be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, I inquire of the Senator from West Virginia, is it correct that it was not only defense but homeland security that is above and beyond the 1 percent; and if that is the case, then could not this money be included within the homeland security part of the budget? I am not certain, but I believe the 1 percent does not include the homeland security requirements.

Mr. KYL. If I could respond to that, to some extent, it is a chicken- and-egg proposition. You have to have an authorization before you can have an appropriation. And the administration merely has the benefit of both. It can put something in the budget which then encourages us to do an authorization or it can respond to an authorization which the Congress passes. The intent here, since we have been working with the administration, is for the Congress to authorize a program which the administration then is supposed to carry out, and that would include an inclusion in the next budget of an amount of money sufficient to fund the authorization that we provide. Then the chairman of the Appropriations Committee would have the jurisdiction to determine how much of that to fund in the appropriations request. But the idea here is to authorize the program, which gives direction to the administration as to what we want it to do. Hopefully, that direction would be then to include that money in the budget. I certainly would be encouraging them to do that.

Mr. KYL. If I could respond to the Senator, the $3.2 billion is the estimated total cost over the 3-year period of time. And as Senator Brownback said, the request would not come in three equal tranches. So you would not multiply $743 million times 3. The administration would have to include in its next budget an amount of money to make up the difference. Now, there is, we are informed, $327 million not yet expended from the $40 billion supplemental, some or all of which might be made available in the first year, which comes close to meeting the $1 billion amount. But the Senator from West Virginia is correct, there will have to be an amount included in the budget in the subsequent year to reach the $3.2 billion. That is correct.

Mr. KYL. Mr. President, the main point is, on the question of the deadlines, the Senator from West Virginia raises an absolutely valid point. The question is, What should we do with regard to two of the dates? I think we can pretty clearly meet the first one. And we have a choice of setting a later date and, therefore, maybe not spurring them to action within a timeframe that really we need to, or setting a more aggressive date which, of course, we can always extend if we are not able to meet it. But there is one other point; that is, the Senator is also correct, we are going to have to get another request from the administration in the final year in the administration's budget to adequately support this. Having the earlier date focuses, then, on getting that money in their budget, so the chairman of the Appropriations Committee has the ability to then plan and incorporate that into the overall budget. So that is part of the rationale. It is nothing more magic than that. If the Senator agrees with us--and I think he does--that it is important for us to get going as soon as possible, then perhaps he can accept that rationale, at least for this first year, and then we can, of course, see what happens after that.

Mr. KYL. Mr. President, I am happy to yield to the Senator from Kansas.

Mr. KYL. Yes, Mr. President, the Senator is exactly correct.

Mr. KYL. If I could, Mr. President, specifically, $3.132 billion. But almost $3.2 billion, yes.

Mr. KYL. About $3.2 billion.

Mr. KYL. I certainly will continue to yield.

Mr. KYL. Mr. President, the Senator partially answered that question in previous comments he made. The first is to put a deadline in there that they have to shoot for rather than just, in effect, saying, ``well, whenever you can,'' because that will probably result in delay. Second, we have to fund the programs adequately. The Senator from West Virginia made the point at a hearing we had the other day--he made the point earlier, and he made the point again today, and the Senator from West Virginia is absolutely correct--that we have an obligation, as the Senate then, to fund this to the extent that will be necessary. We think we have the elements of that built in here, but that will be the other half of what has to be done.

Mr. KYL. Yes.

Mr. KYL. Our thinking in putting those deadlines in was to try to give them something to shoot for so we could at least get them going to try to get it done as soon as possible.

Mr. KYL. I am sorry. It was my understanding that the Senator from West Virginia raised a question about three of the deadlines in the bill, and on two of the three there is no good answer. I will give the best answer I can. On the first one, I think there is a good answer. That has to do with the so-called standards for biometrics. On that, there seems to be a pretty good consensus. That can be developed within the year timeframe that we have in the bill. The Biometric Foundation has provided that information to us. But the Senator is absolutely correct about the readers--the machines--that will have to read the passports or other documents that have this data embedded in them. As to precisely how long it will take to get those online, there is not a good specific answer, nor is there an answer as to when we can have the interoperable system developed, which is one of the central features of the bill. That is the system that takes data from the FBI, the CIA, and others and makes it available to the consular offices that have to issue the visas. In fact, I was just speaking with the FBI Director this afternoon about what we can do to make this happen as quickly as possible. As Senator Kennedy said, everybody wants to make it happen as soon as possible. The question is how to do that. I will share with the Senator from West Virginia some of thinking that went into our putting in those dates. If the Senator has other ideas, we can certainly discuss them. I regret to say that there has been an attitude among some people at the INS that perhaps it has not been--to use the military phrase--as forward leading as some of us would like to see in terms of their willingness to tackle some of these problems. I am trying to say it nicely. There are a lot of people who work at INS who really work hard, and they are trying to do things on time. But I must say that there hasn't necessarily been the so-called can-do attitude that some of us would like to see. When we asked them can you do this, or could you do that, what you get back in response is that may take a long time. That is going to be really hard. Naturally, we would like to see them take the bull by the horns and say, We will do our best to get that done as quickly as we can. That is the answer we are looking for. We don't necessarily get that. Frankly, what went into some of our thinking in putting some of these deadlines in--they may be pretty tough deadlines to meet--was let us get those deadlines in there so the people at INS are going to have to work hard to try to meet the deadlines. They know that we mean business and we are trying to get this done as soon as we can. They may not be able to meet the interoperable system deadline or the readers deadline, both of which are October 26, 2003.

Mr. KYL. Mr. President, if it would be helpful to the Senator from West Virginia, I would be happy to address the deadline issue that he discussed. The Senator from West Virginia raises a good question with respect to those deadlines. Frankly, on two of the three, there is no good answer. The Senator is absolutely correct about that.

Mr. KYL

Mr. KYL. Madam President, I ask unanimous consent to grant the privilege of the floor to Dustin Pead, who is a detailee on the Judiciary Committee, for the duration of the consideration of H.R. 3525.

Mr. KYL

Mr. KYL. Mr. President, might I acknowledge Senator Feinstein. She has talked about our cooperation and working together. I share the pleasure she has had in that relationship. There is nobody I have worked closer with in the Senate, Republican or Democrat, than Senator Feinstein. It has not only been a good experience but has produced good results, such as this legislation. Since she mentioned LaVita Strickland, I will mention Elizabeth Maier of my staff. Elizabeth is one of the experts on immigration in the Senate. Working with Senator Brownback's staff and Senator Kennedy's staff, those four staff people, working together in a bipartisan manner, might suggest to Senators how we can work together in the future. I appreciate the work all of them did. I thank the Chair.

Mr. KYL. Mr. President, I wish to take 2 minutes of my colleagues' time on an extraneous matter, if my colleagues will permit me. We would not be able to do the work we do--I see Senator Feinstein's staff and my colleagues can see my staff sitting here. LaVita and Elizabeth are people who have made it possible for us to get this legislation before the Senate. Our staff means a great deal to those of us who work with them closely. We know to a significant extent the successes we have are due to their efforts. Today one of my staff members is leaving my employment to go to the Department of Labor. It is our loss and Secretary Chao's gain. He has worked with me since 1994. Most staff members do not stay around that long. His name is Tom Alexander. There is not a staff member who has ever been employed by me who has worked harder, has been more dedicated, more loyal, and has been more effective on the issues that he has handled than Tom Alexander. I have told the rest of my staff that if they want an example of who to emulate, how to act, they should think of Tom. He is the kind of person who sets the example, I said, with one caveat: Do not stay around in the evening as long as Tom does. I have told him to go home at 8 or 9 o'clock at night, and that is staying too long. Other than working too hard, Tom has been that exemplary employee who, again, makes us look good. I will give a couple of notes about him so my colleagues have an idea of the kind of person he is. He is a former Missouri tax prosecutor and worked in the Reagan White House and served in the first Bush administration Labor Department. He also previously served on the legislative staff of Representative Jim McCrery. I talked with Representative McCrery before I offered Tom the job in my office. Jim recommended him highly and, as a result, I was able to hire him. He is married to Patricia. They have a son born last year, Shane. Tom also has a 14-year-old son, of whom I know he is very proud, a sophomore in high school. As I said, he has served on my staff since 1994 primarily--that, by the way, is January 1994--primarily working on health care matters. He has also served as my legislative director for the last year or so. He has worked on issues dealing with emergency medical treatment, EMTALA, Medicare private contracting, Patients' Bill of Rights, IHS off- reservation reimbursement issues for Native Americans, antitrust, antigag rule, HMOs, and the teacher tax credit--a variety of issues that are important to the people of Arizona and have resulted in good policies for all of the people of the United States. It is very rare I come to this Chamber to speak about an employee, but Tom Alexander is special, and I hope by doing so, it will allow folks who are not necessarily familiar with the staff of Senators to get just a little bit of an appreciation as to how much these people mean to us, how important they are in representing all Americans. They are what allow us to make the policies and do the work we do. From the bottom of my heart, I thank Tom Alexander for his service on behalf of the people of Arizona and the United States and service in my office. Thank you, Tom. Mr. President, I yield to Senator Feinstein.