Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, following the terrorist attacks in New York and Washington, Chinese officials pledged to join the global effort against terrorism. But comments made by Chinese officials following the attacks indicate that they may try to exact policy concessions from the United States in exchange for support for anti-terrorism efforts. For example, according to a Reuters article on September 18, China's Foreign Ministry Spokesman Zhu Bangzao stated, ``The United States has asked China to provide assistance in the fight against terrorism. China, by the same token, has reasons to ask the United States to give its support and understanding in the fight against terrorism and separatists.'' He went on to discuss the importance of combating Taiwan's independence activists. And more recently--at the Asia-Pacific Economic Cooperation summit in Shanghai--press reports have indicated that China's support is lukewarm at best. It is my hope that the Chinese government will ultimately choose to offer support in our war effort; however, it is important that as we seek China's assistance, we not lose sight of the myriad concerns that remain regarding the communist regime's failure to abide by internationally recognized norms of behavior--including Beijing's proliferation of technology used to make ballistic missiles and weapons of mass destruction, and military buildup aimed at our long-standing, democratic ally, Taiwan. The Chinese government's continuing sale of arms and other assistance to many of the countries on the State Department's list of state sponsors of terrorism is of particular concern. Beijing has sold ballistic missile technology to Iran, North Korea, Syria, Libya, and Pakistan. It has sold nuclear technology to Iran and Pakistan. It has sold Iran advanced cruise missiles and aided that country's chemical weapons program. And it has provided technological assistance to Iraq. We should also keep a close eye on the Chinese military's continued modernization and buildup--the immediate focus of which is to build a military force capable of subduing Taiwan, and capable of defeating it swiftly enough to prevent American intervention. According to the Department of Defense's Annual Report on the Military Power of the People's Republic of China, released in June 2000, ``A cross-strait conflict between China and Taiwan involving the United States has emerged as the dominant scenario guiding [the Chinese Army's] force planning, military training, and war preparation.'' Amidst China's alarming behavior, on October 17, the Washington Post reported that the Administration was considering a waiver on the sanctions placed on China following the Tiananmen Square crackdown that would have allowed the U.S. sale to China of spare parts for Blackhawk helicopters. Richard Fisher, editor of the China Brief newsletter at the Jamestown Foundation, addressed that possibility in an op-ed published in the Washington Times on October 21. He stated. . . . it is not time to end Tiananmen massacre sanctions on arms sales to China, such as allowing the sale of spare parts for U.S.-made Blackhawk helicopters. The Administration is considering this move to reward China and to allow it to rescue U.S. pilots that may be downed over Afghanistan. China has plenty of good Russian helicopters to do the job, and it makes no sense to revive military-technology sales to China as it still prepares for war against Taiwan. The Washington Post later reported that the administration is not planning to waive sanctions that would allow the sale of the helicopter parts. And it is my hope that the United States--in our effort to gain China's support for our war on terrorism--will not consider such a move as long as China fails to live up to its international commitments. As Richard Fisher also stated in his op-ed, ``...to qualify as a U.S. ally in the war on terrorism, China must stop lying about its nuclear and missile technology proliferation and prevent states like Pakistan and Iran from fielding nuclear missiles. Also, China must end its economic and military commerce with regimes that assist terrorists, like the Taliban and Iraq. In addition, China must halt its preparations for war against Taiwan, a war that will likely involve U.S. forces.'' The past month has seen longtime foes, at least for now, espouse a common goal in America's efforts against terrorism. Scores of nations have taken the side of America in a battle to eradicate terrorists of global reach--but the most populous nation on the globe must truly back its words with actions. Until it does so, Beijing should not be rewarded by any relaxation of U.S. restrictions aimed at curbing the communist regime's unacceptable behavior. Mr. President, I ask unanimous consent that the full text of that op- ed be included in the Congressional Record.

Mr. KYL

Mr. KYL. Madam President, I ask unanimous consent to be added as a cosponsor to the amendment of the Senator from Florida.

Mr. KYL

Mr. KYL. Thank you, Mr. President. I will not take the entire time. I marvel at how directly the rule of law in the United States is connected to this attack on the United States and how the judges play a crucial role in that, which simply brings home to me again the urgency of getting these judicial nominations confirmed so these judges can take their place on the bench. I just finished a meeting with a group of victims' advocates who are preparing to deal with the problems that have resulted or will result from the terrible tragedy of September 11 and its aftermath. There will undoubtedly be a lot of trials. There will undoubtedly be a lot of people prosecuted, even if the primary perpetrators are not brought to justice in American courts but brought to justice in other ways. But there are cases pending right now all over this country against people who peripherally were involved, and questions about who the victims are and how those victims will be treated in court by judges are now beginning to bubble up, as they did at the time of the Oklahoma City bombing case and other tragedies. It reminds me again of what distinguishes the United States from these other people. In the West generally, and in the United States specifically, the rule of law is everything to us. Ultimately, the judges are the arbiters of that law. We have an obligation, as the Senate, to act upon these nominations of the President, either to confirm them or to reject them, but to give the President our advice and consent. That is our constitutional responsibility. We abdicate that responsibility if we put it off either because we are too busy doing other things or because, for political reasons, we do not want to confirm more of Bush's nominees than were confirmed in the Clinton administration, or some similar kind of political consideration. That would be wrong. I hope my colleagues will help us bring these nominees to the floor and get them confirmed. At the conclusion of today, if I understand the comments of my colleague correctly, we will have reached a sum total of 12 confirmations for the entire year. That is woefully inadequate. There are 36 nominees pending whose nominations were made prior to the August recess. Surely we can act upon all of them. The final point I will make is there has been some suggestion that in some cases paperwork is not done. Do not be deceived by this, my colleagues. We have a moving goalpost problem here. After all of the paperwork has been completed for weeks, new questions are submitted by colleagues, thereby creating the situation in which they can say: Well, not all the paperwork is in. There has to be an end to that at some point. The new questions have to be terminated, and it is time to have a vote. So I urge my colleagues to help us get these nominations to the floor, find a time to vote on them, and get the votes done so we can fill the vacant court positions with these important judges. Remember, there are 42 judges identified as emergency nominations. They have been emergencies from the beginning of the year. So we have to fulfill our responsibilities as the Senate and take action on these nominations. Until we are able to do that, it is our view that we should call a timeout on other certain portions of the Senate business so we have the ability to take up those nominations and bring them to the floor. I hope my colleagues will permit us to take up those nominations and will defeat the motion to proceed on the appropriations bill. The ranking member of that committee, Senator McConnell, has made the point that we can afford, at this point, to lay that aside temporarily to take up these judges and then return to that business. I thank the Chair.

Mr. KYL. The Senator had an interesting question. I guess I will ask the question to you this way. Since the distinguished Senator from Nevada has said on more than one occasion that this is not about payback--I think that is a direct quotation, on several occasions--I wonder why, if the withholding of confirmations on judicial nominations is not about payback, that most of the argument that the Senator from Illinois and the Senator from Nevada keep making is how poorly they believe that President Clinton's nominees were treated by Republicans. What relevance would that have, if their action today isn't about payback?

Mr. KYL. Mr. President, I guess I will ask a question. I thought there was a question posed to the minority by the distinguished Senator who said, would Republicans like it if he treated them as they treated us? And I thought, as a Republican, I might be in a better position to answer that than a Democratic Senator.

Mr. KYL. Will the Senator yield? That was a question directed to my party.

Mr. KYL

Mr. KYL. I commend the Senator for the points he is making. I will add one other point, which he hasn't mentioned yet, but I am sure he was probably getting ready. Pakistan has not been the same kind of democracy as the United States. The military of that country has pretty well controlled its nuclear armaments and forces, rather than being under civilian control. That is the way it is in Pakistan, and I know it to be important for the United States to know where the Pakistani military is coming from. As long as they have great relations with the United States, which the Senator from Iowa was referring to, I don't think we have too much concern that Pakistan's nuclear weaponry would fall into the wrong hands. If this younger officer corps, which is not as closely aligned with the West and the United States, were to become dominant in their military, and if the influence of the Taliban should continue to increase in Pakistan, I would think the United States would have great concern about who is controlling the nuclear weapons in Pakistan. That is another very important reason to support what the Senator is talking about right now.

Mr. KYL. Exactly. At the rate of 1.4 judges per hearing, there is no way we will be able to have enough judge nominations that can come to the Senate floor for confirmation before we adjourn for the year. That is why we have to not only have more hearings but we have to have more judges at each hearing. Basically, there are a couple of dozen, or more, of these pending 36 that haven't had hearings. That means that even if you have one hearing per week rather than one per month, and you have maybe five candidates per hearing, you are just barely going to be able to have enough hearings to get the candidates voted on and get them to the Senate floor in order for us to be able to confirm them before year's end. While it is true that it is not too late, it will be too late if we don't get a commitment right away to have the Judiciary Committee hold hearings for the candidates and have business meetings at which the committee can then vote on them, and then have the ability for the full Senate to take up the nomination. To further validate what the Senator from Kentucky just said, the fact is that in almost every case in the past several years the nominees are voted on as a bloc by voice at the end of the day, or by a unanimous consent. In other words, the majority leader will usually stand up and say: I ask unanimous consent that we now go to Executive Calendar number such-and-such and consider the following 14 candidates for judge. The clerk reads the names. Is there any objection? Without objection, it is so ordered. It is done. That is all the time it takes. It is true that the chairman of the Judiciary Committee since June has insisted on rollcall votes on the Senate floor. That is fine, too. That takes 20 minutes per judge. We can do that. We can have debate before that. No problem. We are saying that we now have an opportunity do to that; let's do it. I want to make the point that you can try to change the subject if you want, but you can't deny that we are not moving as rapidly as possible. For anybody to stand here and say we are moving as rapidly as possible runs counter to the facts. We could be holding hearings. We are not. We could be voting to approve those who have had hearings. We are not. We could bring those people to the floor for a vote. We are not doing that. It is simply incorrect to say we are moving as fast as we can or that we are doing as much as we can. Unless somebody brings all of this to the attention of the American people and also the other people in the body, this matter simply slides until it becomes too late to consider those candidates. We should not be using the horrific events of September 11 and the business we have had since as an excuse not to take action on a matter. In fact, one can make the argument that it is more important than ever that we fill these important positions. That is simply the point I wanted to make. But I want to defer now to the Senator from Iowa who I know has an important point to make about this war on terrorism and the position of the United States in supporting one of our allies, in particular the country of Pakistan, something that is very important for us to do. In advance, I applaud his remarks. I yield the floor.

Mr. KYL. Mr. President, I wanted to make a couple of comments and then I know the Senator from Iowa wants to speak to a subject which is very, very important: U.S. relations with Pakistan. I am anxious he have that opportunity so I will be very brief. One of the things the Senator will say is that Pakistan has really stuck its neck out in support of the United States position in this war against terrorism. Pakistan is in a very dangerous neighborhood, and the United States has to do everything we can to support Pakistan in its time of need. Almost all of us in this body, and certainly the administration, agree with that proposition. So we are going to have to do everything we can to assist them. By the way, there are some things in the appropriations bill that will be before us, hopefully relatively soon, that will assist in this regard as well. In the meantime, there are a lot of other things we can be doing to assist Pakistan. In response to what has been said here with respect to the motion to proceed on the Foreign Operations bill, Senator McConnell is absolutely right about the delay that has been occurring in the consideration of judges. As he has said, he is the ranking member of this appropriations subcommittee and has chaired the subcommittee for the last several years. While it is important to get the foreign ops appropriations bill before us, the fact is we are going to have a foreign ops appropriations bill. We have a supplemental that covers the situation until then, so there is not a single day that goes by that we are not providing the money that is called for under this legislation. So this is not about holding up the Senate's business or holding up the Foreign Operations Appropriations Bill. All of that is going to be done. That is not the issue before us. The issue before us is occasioned by the fact that there were some who said we are so busy we just can't get to these nominations. My response is: Fine, we will just call a time out until we can catch up with some of the nominations. In each of the three preceding administrations--the Reagan administration, 8 years' worth; the Bush administration, 4 years; and 8 years of President Clinton--in their first year every single one of the nominees that had been sent to the Senate by the August recess were confirmed by the end of the year with only one exception. Yet it is going to be virtually impossible for that to occur now. There were 44 nominees sent up by President Bush before the August recess. We have confirmed eight. That leaves 36. At the pace the Judiciary Committee, of which I am a member, is holding hearings, we are not going to be able to complete work on even half of those nominees. Part of the reason we have tried to focus attention on this matter is to say we have to get to work in the Judiciary Committee. We have to have the Judiciary Committee hold hearings, approve the nominees for consideration by the floor so all of us can then consider the nominees. They are going to be approved on the floor. I doubt very many, if any, are going to be disapproved. But certainly, in any event, whether you like the nominee or not, the argument has been made for years that they at least deserve a vote, and I think all of us would agree with that. So we have to do something to take up consideration on these nominees. Time is short. We have only another 4 or 5 or 6 weeks to go in this session. If we don't get to work here pretty soon, we are not going to be able to confirm the same percentage of judges that have been confirmed in prior administrations. There have been two parliamentary or rhetorical tacks taken by those on the other side of the aisle. One is the red herring, the President hasn't sent up very many nominees for U.S. marshals. That has nothing to do with the fact that a whole lot of nominees are pending for judge. I daresay, as important as the marshals are, the judges are more important. We have got to get them confirmed. Then there was the comment that the President could send up a lot more U.S. attorney nominations than he has. Again, it is a red herring. He could. We will confirm them, too. They are also important. But let's get back to the judges. In other words, let's stop trying to change the subject. President Bush has nominated more candidates for judgeship at this point in his Presidency than any of the past three Presidents. With respect to nominees to the court, the President has done his job. Granted, he got a bit of a late start because his term as President got a bit of a late start because of all of the business following the election results. But, once he got started, he named nominees at a faster pace than his three predecessors. That is what is pending before us--60 nominations with only 8 confirmed. We are saying that all of those ought to be considered by the Senate and by the Judiciary Committee. But, at a minimum, those nominated prior to the August recess should be considered by the full Senate.

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

Mr. KYL

Mr. KYL. Mr. President, I will respond to a couple things the Senator from Vermont had to say. I very much appreciate the burden he carries as chairman of the Judiciary Committee, and the fact he was not in the majority until June. However, I think it important to point out there is a reason the chairman of the Judiciary Committee before him did not hold hearings on nominees. We will all recall that it took President Bush a little while to secure his office this time, and he was probably a good 6 weeks or so behind. I am not sure how that translates into making nominations to the bench, but by early May he, indeed, was making nominations. There are a whole number of nominations that were made on May 9, as a matter of fact, and then following that, on May 25 and then in June, and so on. Very shortly after he was sworn in, he began the work of nominating people to fill the vacancies on the court. It is important to point out that, probably more than any of the last four Presidents, himself included, he has acted with alacrity to fill vacancies. As a matter of fact, by the beginning of the August recess, in the short time that President Bush held office, the President had submitted to the Senate 44 judicial nominees. Let me put this in perspective. President Reagan had submitted 8 nominees before the end of the August recess, President Bush submitted 8 nominees before the August recess, and President Clinton submitted 14 nominees before the August recess. President Bush submitted, as I said, 44 nominees before the August recess. It is true that those were not submitted in February and March and April. Obviously, he was just taking office at that time. To point out no hearings were held before the distinguished Senator from Vermont became chairman of the committee I think does not represent the situation in any accurate way for us to take action now. The fact is, we had 44 nominees pending prior to the August recess, 108 vacancies currently, and therefore it is time to act. Whatever the situation was before June, we now know we have all of these nominees. My question is, Why are we not acting on them? In terms of hearings, it is true the Senator from Vermont has held hearings, but the problem is he does not put very many judicial nominations on the hearing calendar. In contrast to his predecessor, Senator Hatch, who averaged 4.2 judicial nominees per confirmation hearing, Senator Leahy has been moving at about a third of that place-- 1.4 judicial nominees per confirmation hearing. It is a little hard to fill these 108 vacancies when you are only having 1.4 nominees per hearing and you only hold the hearings on the schedule they have been held so far. As a result, we have only confirmed eight judges. That is the reality of where we are today. The fact that we have 41 designated emergency judges as indicated by the Administrative Office of the Courts does not concern anyone? It certainly concerns me as a Senator representing a border State, where I have three nominations pending, with no action being taken on those. There are 21 nominees pending in the Judiciary Committee who are slated to fill positions which have been declared judicial emergencies by the Administrative Office of the Courts. Why are we not holding hearings on these nominations? As far as I know, there is nothing to prevent us from holding hearings, and if I am wrong, I ask the distinguished chairman of the committee to tell me how I am wrong. He says anyone who takes the position I have taken is utterly lacking in judgment. I ask him to perhaps reconsider that comment. Perhaps I can ask the Senator from Vermont who he thinks is acting like petulant children in the schoolyard--the other comment he made. The fact is, we have had time to hold hearings, and there are all of these nominations pending. They were pending before the August recess. There is nothing preventing us from holding the hearings. There is nothing preventing us from voting on those nominations in the hearing, nothing except politics, I submit, and that, at the end of the day, is apparently where we are. I do not like to hold up other business any more than anyone else. It is important to get the foreign operations bill done. Clearly, we will do that. But for those who say we are just so busy doing other things, then I am forced to say, fine. Then let's stop until we can get some of these nominations to the floor for a vote and acted on. Mr. President, I wish to make one other comment. These are not my words but the words of the distinguished Senator from Vermont. When Bill Clinton was President and there were fewer than 85 vacancies--now there are 108--Senator Leahy took the position that ``[a]ny week in which the Senate does not confirm three judges is a week in which the Senate is failing to address the vacancy crisis.'' When there were fewer than 70 judicial vacancies, the Senator told the Judiciary Committee: [W]e must redouble our efforts to work with the President to end the longstanding vacancies that plague the Federal courts and disadvantage all Americans. That is our constitutional responsibility. I certainly agree with the Senator. Finally, in May of 2000 Senator Leahy argued that we should move more judges than had been moved before at a time when they were being moved faster than they are now. He said: I have challenged the Senate to regain the pace met in 1998 when the committee held 13 hearings and the Senate confirmed 65 judges. I suggest if it was an appropriate pace then, it is an appropriate pace now. There is no reason not to do it. Therefore, we should get on with that task.

Mr. KYL. Senator McConnell asked that during the period of time prior to the vote I represent him. I will be happy to do that. I assume that since the proponent of the legislation is the Senator from Vermont, he will want to begin, and I respect that. I presume from the shrug, the Senator from Vermont does not wish to move forward, in which case I will be happy to continue with the discussion.

Mr. KYL. Mr. President, for the edification of the Senator from Vermont.

Mr. KYL

Mr. KYL. Mr. President, I could not help thinking, particularly as I listened to the distinguished majority leader discuss the activity in his office today and the concern about his staff and their current terrorist threat that reaches the U.S. Capitol staff now, about how many ways this threat of terrorism affects all of us. I certainly hope all of the majority leader's staff is well and suffers no ill effects from what may well have been another reach of terrorist attack here in the United States. It reminds us how this kind of unlawful extralegal activity can affect a society which has always been so free and so open, precisely because we are a nation of laws and precisely because we believe in the rule of law. Of course, in our society that rule of law ultimately rests upon the judge and our courts for its administration. Of course, it is the judges who are the ultimate arbiters of the law. We could not function long as a free society without our judges. Yet today we are speaking about the fact that an unacceptable number of vacancies exist in our courts, vacancies that must be filled if we are to be able to properly administer that law we revere so much. Currently, there are 108 empty seats in the Federal judiciary. We are speaking of the Federal courts alone. That represents a 12.6-percent vacancy in the total number of judgeships. I note, as others I believe have perhaps also noted, that of those, there are 41 judicial emergencies. In other words, more than a third of these vacancies, according to the Administrative Office of the Courts, represents judicial emergencies--meaning that they are in districts and in courts in which there is an overwhelming burden of cases in which, without having a judge to fill the court position, essential justice will not be done. It certainly raises the question about why we as a Senate are not able to act on the judges or the candidates for judge whom the President has nominated. It is in this regard that I feel my responsibility most strongly because not only am I a Member of this body but I am also a member of the Judiciary Committee. Until the Judiciary Committee acts, we as a body are not able to give our final advice and consent. In fact, I am especially keen on the issue because three of these vacancies represent nominations for a district court for my own State of Arizona. All three of them are also designated by the administrative office as judicial emergencies. This is not a hypothetical or a theoretical matter; it is a very real matter for us today, which should touch all of us, but it certainly touches some of us very strongly. It is, therefore, with some sadness that I hear my colleagues talk about the potential of holding up action on appropriations bills in order to take up the matter of judicial nominations. Historically, the Senate has been able to do many things at the same time. We have considered legislative matters on the floor when we have had other calendars from which we took up matters. Indeed, many of the nominations, including judicial nominations, are considered as a relatively routine matter, sometimes at the end of the legislative day when the majority leader will simply ask for unanimous consent to consider a number of nominees. It is mostly the case that judicial nominees as well as others are considered in that fashion without even having a rollcall vote. It has been the custom of the current chairman of the Judiciary Committee this year to call for, I believe in most all cases, rollcall votes, which is fine. I would actually prefer to do it that way. But it has not been deemed necessary in the past because most of these nominations are not controversial--my point being that we can consider and act upon frequently large numbers of nominations without having to take a lot of the Senate's time for debate. It has always been that way. The Senate can do many things at once. We hold committee hearings when we have actions pending on the floor. It is simply not true that we can only do one thing at a time. Part of the reason we don't have the number of judges confirmed we should is that some have made the arguments that we are too busy doing other things and we have to be on the floor doing the antiterrorist legislation, or some other business before the Senate, and therefore we can't take up the nominations. That, I submit, is not an accurate statement of the way the Senate operates. But for those who say we can't do more than one thing at a time, I have said: Fine; then given the fact that we have time and time again asked for action on judicial nominations that has not been forthcoming by and large, perhaps it is time to give those nominations the proper priority they deserve and to get them on the calendar so we can consider them. As a result of that, I, on a couple of other occasions, suggested that rather than taking up a particular appropriations bill, we should get on with nominations. No. Some colleagues argued: We need to get on with these appropriations bills. We will take up those nominations in due course. As a matter of fact, there have been two explicit agreements reached between the majority leader, minority leader, and others about how to follow this process, with the specific commitment made to take action on those nominees, at least those who were nominated prior to the August recess. Still, we do not see action occurring at a pace fast enough to be able to conclude that by the end of our session this year we will have, indeed, taken action on the nominations pending prior to the August recess. That is why I have decided that if, in fact, it is the case that we cannot do more than one thing at a time, then we will simply call a timeout on the appropriations process, go to these nominations, see how many of them we can get done as appropriate, and then return to the appropriations process. No one suggests we will not complete that process this year. We have to do it. We will do it. I will be supportive of it, as well. That is essentially the reason why I have suggested we call a timeout on that process, so we can get those nominations done. I will continue my statement, but I know the distinguished majority whip wishes to speak.

Mr. KYL. I say to the Senator from Nevada, Senator McConnell has asked me to represent him during this period of time. I would be happy to do that if that would be the preference of the Senator from Nevada and the Senator from Vermont.

Mr. KYL

Mr. KYL. I thank the Chair.

Mr. KYL. Mr. President, I believe that among staff there is an informal agreement we would extend the morning business time for a period up to 5 o'clock, which would take us beyond the 4:30 time. When someone is ready to propound that unanimous consent request, I will be prepared to stop since my time will go beyond 4:30, which I understand is the current time. I thought I would note that. I will be particularly speaking after 4:30 based upon that understanding.

Mr. KYL

Mr. KYL. Let me summarize where I was, Mr. President. The point is, we are a country that relies upon our courts to administer the rule of law. At the Federal level that means we need to have a fully staffed Federal judiciary. We always know there are a certain number of vacancies at any given time. But we need to complete action on as many of the nominations pending before us as possible, certainly before we leave perhaps some time next month. In the past, it has been the case that Members of both parties have expressed concern about the fact that we have vacancies and that we need to fill those vacancies. I will make note of that in just a moment because some of my colleagues on the other side have been eloquent about their commitment to try to get the process done. My point is, with over 40 vacancies designated as emergencies by the Administrative Office of the Courts that characterizes vacancies as ``emergency'' or ``nonemergency,'' with over 100 vacancies now, over 40 of which are emergencies, it is not business as usual. We cannot continue to have maybe one hearing a week, with maybe one or two judges being considered. We have only confirmed eight judges this entire year; most of them quite recently--only eight. At that pace, we are clearly not going to be able to act even on the President's nominees that existed at the time we began the August recess. These are nominations made in May, in June, I believe, mostly-- maybe a couple in July. Clearly, we ought to at least act on those nominations before we terminate our business this session. But if we do not get about that task very soon, there will not be enough in the pipeline coming from the Judiciary Committee to get that work done. That is why I have said we are going to have to have a timeout. If the argument is we just don't have time, we are too busy doing other things, then I am willing to say: Then let's call a timeout. Let's get to the nominations. And when there is a sufficient number of nominations completed, then we will go back to our other priorities. We will continue to pass continuing resolutions to fund all of the various operations that are the subject of the appropriations bills. There will be nothing lost from that process. We will pass the appropriations bills. No one suggests otherwise. But in terms of priorities, if we do not act soon on these judges, two things will happen: No. 1, we are not going to have enough time to complete the work on those before we quit; second, we will not fill these vacancies that have been declared emergency vacancies by the Administrative Office of the Courts. So that is my reason for calling this timeout. It is my reason for urging people to vote against the motion to proceed to the foreign operations bill, which I very strongly support, incidentally. I will represent to my colleagues that Senator McConnell, who is the ranking member of that subcommittee, did, indeed, ask me to represent him until he arrives this afternoon. He may be in the Chamber by 5 o'clock. He may not. But it is his view that this is an appropriate objection at this time to moving forward with action on that bill. Since I see a couple of my colleagues are in the Chamber to speak, let me simply say, when I resume my comments, I will speak statistically to where we are in this current situation vis-a-vis past administrations and make the point that it pretty much does not matter how you cut it. By any statistical measure, we are far behind. In the Reagan administration of 8 years, in the Clinton administration of 8 years, in the previous Bush administration of 4 years--in every case, with one exception, every single Presidential nominee for the courts that was made prior to the August recess was acted upon before Congress adjourned for the year. There are 30-some vacancies for the courts now. I do not see, at the current pace at which we are operating, how we can come close to completing action on those nominations. Actually, if you were to compare the numbers through October 31, it would be a better measure, and that would make it virtually impossible for us to get all these nominations done when we are so far behind at this point. I think an even more conservative proposal of just acting on those nominees the President sent to the Senate prior to August would be perfectly appropriate. I see no reason for us not to do it. That is why I am willing to say until we do that, we need to defer action on our other business so we can indeed get about this job. With that, Mr. President, I reserve the time until we take up the motion to proceed to the bill.

Mr. KYL

Mr. KYL. I thank the Senator from Nevada.

Mr. KYL

Mr. KYL. Mr. President, I would like to respond to the Senator from Missouri by saying, first of all, I don't think this is a question of whether we are going to respond to people who have been affected by the events of September 11. The question is how best to respond to that. As she noted, the President has a proposal that is going to broadly deal with the problems of unemployment associated with the attacks on September 11. But the question here is whether we are going to focus on extending unemployment benefits, as the proposed amendment does, or are we going to get people back to work? It seems to me these people would much prefer to get their jobs back, to get back to the routines they enjoyed prior to September 11, rather than focusing for a long time on extending unemployment benefits, having to buy health insurance under COBRA, and having to be retrained for a different job. My guess is these people would be very happy just to get the old job back doing the same work they were doing before. That is why I think we have the focus wrong. I have proposed, and I am going to be urging my colleagues to very seriously consider, as part of the economic stimulus package a tax credit to get people traveling again. The problem is people are not traveling. If we had as much travel today, 1 month after this event, as we did on the day of September 11, all of the people we are concerned about under this amendment would have their jobs. We would not be worried about unemployment benefits. We would not be worried about training them to do a different kind of job. They would have the same job they had exactly a month ago. So shouldn't we be trying to get the American public back to the habits it had prior to September 11? And that specifically relates to travel. There is no question that of all of the economy, the travel industry is the most hard hit by the attack. That should be obvious to everyone. It seems to me it should also be obvious, if we are going to talk about benefiting that segment of the economy, either to help the people who were unemployed as a result of it or to stimulate the economy, what we need to do is focus on the air, where the patient is hurting the most. The patient was hurting on September 11. Our economy was not in good shape. You could say we had a case of pneumonia. We were going to be getting better over time, of course. We were going to be treating it with antibiotics, but that was the condition then. Since then what has happened, if you want to have a gruesome analogy, is we had an accident in which the arm was practically cut off. We are bleeding to death, and we have to stop the bleeding in that the part of the body that is hurting the most and that is the travel industry. So why aren't we focusing our efforts on getting that industry back going again? That will save the jobs of the people who want nothing more than to go back to work. My proposal gives a tax credit for the people to travel. It says if you make a financial commitment to travel before the end of this year, you get a tax credit of $500 on your 2001 taxes; if it is a joint filing, $1,000. That is enough to stimulate people to get back into the habits they had prior to September 11. All you have to do is make that financial commitment. It can be air travel, automobile, or bus. It can be a reservation at the hotel. We have people who are hurting far more than just people who worked at airports--from the maid who makes up the bed in the hotel to someone who, frankly, was working at Boeing aircraft making airplanes; they are not making them because nobody is buying them and because people aren't traveling--all the way from A to Z. We have people throughout our economy--about one in seven jobs in the civilian sector--who are adversely affected by the events of a month ago. Throughout the economy, the ripple effect of these attacks is incredible. I talked to the CEO of Phelps-Dodge Corporation, a copper company in Arizona. They had a big contract with Boeing to supply a special alloy metal used in making airplanes. We need to think about the impact of what occurred throughout the economy. It is not just people who work at airports on whom we ought to be focusing; we ought to be focusing on the economy broadly and on everybody affected by the travel industry. How do you directly deal with that problem in the quickest way that gets the people their jobs back? You do that by providing some kind of incentive for people to resume the habits they had exactly a month ago. I haven't heard a better idea than the one I proposed with this tax credit. When you file your taxes for 2001 and calculate your tax liability to the Government, and you subtract $1,000, that is a pretty good incentive. You wouldn't have to travel before the end of the year as long as you made your financial commitment to do so. You could be traveling next Easter. It could be tourism; it could be business; it could be just going to visit somebody; it could be visiting a sick relative--whatever it is. People are now disinclined to travel primarily because they are unsure of the safety of the airline industry. They are unsure generally of what is in our future. Frankly, they need to get back into the habit of doing what they did before September 11 or terrorists will have won. The purpose of terrorism is to demoralize. It is to change for all of America the way we conduct our society and our culture. That is their effort. They are going to succeed in that if we simply throw up our hands and say, well, for all of the people who are out of work, we might as well find something else for them to do because we will never get back to the way we were before September 11. I reject that. We can get back to the way it was before September 11. A lot of things are going to change. We have to convince the American public that it is safe to travel. If we can't do that, we are not doing our jobs. I have been on six separate commercial air trips since the events on September 11--flying back home and then back to Washington. I believe it is safe to travel. I think it is safer to travel than prior to a month ago. We have to pass legislation that convinces the American public that they can travel safely. Then I think we have to provide them some financial incentive because of our general economic conditions. That incentive would be to get them to go back to traveling, and to do so quickly. If we wait for all of this work throughout the system for a couple of years, then everybody is going to be the loser. We will have all of these people unemployed. We will have to pay additional benefits in health care and retrain them to do something else. It would be far easier, less disruptive, better for the economy, and, frankly, better for the psyche of the Nation to get back to the place we were a month ago where people who lost jobs could go back to doing what they were doing before. It seems to me that instead of hastily acting on the proposal that only applies to a narrow segment of our society--frankly, a minority of the people who have been harmed by the attacks on September 11, a minority of the people who have been harmed as a direct result of the American public traveling less--let's do two other things: Let's take a look at what the President proposed in the way of benefits for people who have lost their jobs but is broader based in approach; second, let's get the American public traveling again. I urge my colleagues, as we are putting together this so-called stimulus package, to differentiate between all of those wonderful ideas that have been trotted out and proposing all kinds of things to spend money for or cutting taxes that we think will have some long-term effect on the economy--distinguishing between those proposals, on the one hand, and others which can immediately and directly stimulate the economy in the precise areas where it is needed the most. What area needs it the most? The travel industry. What area was hit the hardest by the attack last month? The travel industry. What area, therefore, should we be focusing on? The travel industry. If we do that, we are not going to have to worry about extending unemployment benefits because we will get these people back to work. Isn't that far better than focusing and, in effect, saying there is nothing we can do about it and we might as well decide right now to extend all of these unemployment benefits and retrain people to do some different job? I think they would rather go back to the job they were doing a month ago. That is what I propose we do. Two things: No. 1, defeat this amendment. I think we ought to focus on the President's proposal instead; and, No. 2, we ought to agree that we have to have in the stimulus package something that will stimulate trade quickly. If somebody can come up with better idea than a tax credit proposal, I welcome it. In the meantime, that is what is on the table. I urge my colleagues to support this as a way of stimulating travel, of getting people back to work again, and of denying the terrorists the victory they sought of demoralizing the American people. We will not be demoralized. We will not be defeatists and say we are going to have to change our way of doing things by putting people on the unemployment rolls and retraining them to do something else. I reject that. We have to deny the terrorists the victories they sought. I think the way I propose to do it is the best way. With all due respect of my friend from Missouri, I think her proposal--I understand why it is being put together--is not the best medicine for what we are facing today. I thank the Chair.

Mr. KYL

Mr. KYL. Mr. President, I object.

Mr. KYL

Mr. KYL. Mr. President, I rise in strong support of the antiterrorism bill, S. 1510. The bill would provide our nation's law enforcement with important tools to more effectively investigate and prevent further attacks against the people of the United States. At the outset, in response to concerns that some have raised, I want to make clear that we are not rushing to pass ill-conceived legislation. During the past two Congresses, when I chaired the Judiciary Committee's Subcommittee on Technology and Terrorism, the Subcommittee held 19 hearings on terrorism. I want to repeat that: 19. The witnesses who appeared before the Subcommittee included the then-Director of the FBI Louis Freeh and representatives of all three of the congressionally-mandated commissions on terrorism that have issued reports over the last two years. Additional hearings on terrorism were held by the full Judiciary Committee and by other committees. Many of the provisions contained in the Attorney General's proposed legislation mirror the recommendations of one or more of the major terrorism commissions and have already been examined by the committee of jurisdiction. In fact, some of these provisions have already been voted on and passed by the Senate. Indeed, as I will discuss more fully in a minute, the language sent forward by the Attorney General to establish nationwide trap and trace authority was included in the Hatch-Feinstein-Kyl Amendment to the recently passed Commerce, Justice, State Appropriations bill. Much of the remaining language in that amendment was included in the Counterterrorism Act of 2000, which the Senate passed last fall, after a terrorist attack on the U.S.S. Cole killed 17 American sailors and injured another 39. That bill was based on recommendations of the bipartisan, congressionally-mandated National Commission on Terrorism, known as the Bremmer Commission, which was established in 1998 in response to the embassy bombings in Tanzania and Kenya. One particularly important provision, which was included in the both the CJS bill and the current bill, updates the law to keep pace with technology. The provision on pen register and trap and trace devices 1. Would allow judges to enter pen/trap orders with nationwide scope and 2. Would codify current caselaw that holds that pen/trap orders apply to modern communication technologies such as e-mail and the Internet, in addition to traditional phone lines. Nationwide jurisdiction for a court order will help law enforcement to quickly identify other members of a criminal organization such as a terrorist cell. Indeed, last year Director Freeh testified before the Terrorism Subcommittee that one of the problems law enforcement faces is ``the jurisdictional limitation of pen registers and trap-and-trace orders issued by federal courts.'' [Source: Hearing before the Subcommittee on Technology, Terrorism, and Government Information of the Senate Committee on the Judiciary, 106th Cong, 2nd Sess. (March 28, 2000), at 31.] He continued: ``Today's electronic crimes, which occur at the speed of light, cannot be effectively investigated with procedural devices forged in the last millennium during the infancy of the information technology age.'' [Source: Id. at 32.] Currently, to track a communication that is purposely routed through Internet Service Providers located in different states, law enforcement must obtain multiple court orders. This is because, under current law, a Federal court can order only those communications carriers within its district to provide tracing information to law enforcement. According to Director Freeh's testimony before the Terrorism Subcommittee, ``As a result of the fact that investigators typically have to apply for numerous court orders to trace a single communication, there is a needless waste of time and resources, and a number of important investigations are either hampered or derailed entirely in those instances where law enforcement gets to a communications carrier after that carrier has already discarded the necessary information.'' [Source: Id. at 31.] Section 216 of the Senate bill solves this problem. I would also like to address another important provision. Section 802 is intended more clearly to criminalize the possession of biological and toxin agents by those who should not possess them. This section amends the implementing legislation for the 1972 ``Convention on the Prohibition of the Development, Production, and Stockpiling of Bactiological, Biological, and Toxin Weapons and on their Destruction'', BWC. Article I of the BWC prohibits the development, production, stockpiling, acquisition, or retention of Microbial or other biological agents, or toxins, whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective, or other peaceful purposes. It is not the intent of the BWC, nor is it the intent of Section 802, to prevent the legitimate application of biological agents or toxins for prophylactic, protective, bona fide research, or other peaceful purposes. These purposes include, inter alia, medical and national health activities, and such national security activities as may include the confiscation, securing, and/or destruction of possible illegal biological substances. Finally, let me address briefly the concern voiced by some that we are in danger of ``trampling civil liberties.'' I reiterate that we are not rushing, that we have had thorough, deliberative hearings, and that many of the proposals have already been passed by the Senate. Nothing in the current bill impinges on civil liberties. The bill would give Federal agencies fighting terrorism the same tools we have given those fighting illicit drugs, or even postal fraud. Many of the tools in the bill are modernizations of the criminal laws, necessitated by the advent of the Internet. While some of these tools are extremely helpful in terrorism investigations, it makes no sense to refuse to apply these common sense changes to other crimes that are committed, like kidnapping, drug dealing, and child pornography. It is unwise to limit these tools to only terrorism offenses because often, at the outset of an investigation of a particular person or crime, law enforcement does not know what you are dealing with. A credit-card fraud case or a false immigration documents case may turn out to be connected to funding or facilitating the operations of a terrorist group. We should give law enforcement the tools it needs to have the best chance of discovering and disrupting these activities. We have a responsibility to the people of this nation to ensure that those who are charged with protecting us from future terrorist attacks are empowered to do so. This is not a zero sum game. We can both ensure our security and protect our liberties. We cannot afford to lose this race against terror, and we cannot afford to give the enemy in this war a full lap head-start. I support this bill. I commend President Bush and General Ashcroft for submitting a sound proposal to the Senate, and for their tremendous efforts during the past month. Mr. President, in addition to the all of the other provisions in this antiterrorism legislation that will provide our law enforcement communities with the tools to weed out and stop terrorism, I want to express my support for the immigration provisions upon which the administration, Senators Hatch, Kennedy, Leahy and I have reached agreement, and which are included in this bill. Even with the passage of these provisions, however, the United States will continue to face overwhelming infrastructure and personnel needs at our consular offices abroad, along both the southern and northern border, and in our immigration offices throughout the United States. In conjunction with increasing personnel and infrastructure, the U.S. must deprive terrorists of the ability to present altered international documents, and improve the dissemination of information about suspected terrorists to all appropriate agencies. Senator Feinstein and I, in a hearing of the Terrorism Subcommittee of the Judiciary Committee this Friday, will continue to assess these needs by hearing from Justice and State Department officials. So, our actions on immigration reform as it is relates to terrorism must go beyond the scope of this anti-terrorism package. With that said, this bill will certainly provide a better legal framework for keeping foreign terrorists out of the United States, and detaining them should they enter. First, this antiterrorism bill clarifies that the Federal Bureau of Investigation is authorized to share data from its ``most wanted list,'' and any other information contained in its national crime- information system, with the Immigration and Naturalization Service and the State Department. This will help the INS and State Department identify suspected terrorists before they come to the United States, and should they gain entry, will help track them down on our soil. It also allows the State Department, during a U.S. criminal investigation, to give foreign governments information on a case-by-case basis about the issuance or refusal to issue a U.S. visa. The bill will also clarify U.S. law prohibiting the entry of, and requiring the removal of, individual alien terrorists. It will probably surprise the Members of this body a great deal to know that, under current law, a terrorist alien is not considered either inadmissible to, or deportable from, the United States even if he or she has ``endorsed or espoused terrorist activity that undermines the efforts of the United States to fight terrorism,'' or has provided ``material support to a terrorist organization.'' Nor is an individual deportable for being a ``representative of a terrorist organization.'' The anti- terrorism bill makes it clear to U.S. officials considering whether to allow someone to come to the country, that a person meeting any one of these criteria is not welcome here. In addition, the anti-terrorism package that we are debating today further defines what is considered by the United States to be a terrorist organization. Under current law, a terrorist organization must be designated by the Secretary of State under Section 219 of the Immigration and Nationality Act. This process can take several months, and has been criticized by some experts as potentially politically corruptible. Under this Senate anti-terrorism package, Section 219 remains in effect. A separate designation process is added, whereby an organization can be designated by the Secretary of State or the Attorney General, in consultation with each other, with seven days' notice to the leadership of the House and Senate and the congressional committees of jurisdiction. Additionally, an organization, whether or not it is formally designated by the Secretary of State or the Attorney General, can be considered to be terrorist if it is made up of two or more individuals who commit or plan to commit terrorist activities. The Senate's antiterrorism package also has provisions regarding temporary detention. It allows for the temporary detention of aliens who the Attorney General certifies that he has ``reasonable grounds to believe is inadmissible or deportable under the terrorism grounds.'' This compromise represents a bipartisan understanding that the Attorney General of the United States needs the flexibility to detain suspected terrorists. Under the compromise that Members have reached, the Attorney General must charge an alien with a deportable violation or he must release the alien. The underlying certification, and all collateral matters, can be reviewed by the U.S. District Court of the District of Columbia, and the Attorney General is required to report to Congress every six months on the use of this detention provision. Finally, the Senate package, as a result of amendments added by Senator Byrd, will determine whether ``consular shopping''--i.e., someone has a visa application pending from his or her home country, but goes to another country for adjudication--is a problem. If so, the Secretary of State must recommend ways to remedy it. Another authorizes $36.8 million for quick implementation of the INS foreign student tracking system, a program that I have repeatedly urged be implemented. As former chairman and now ranking Republican of the Judiciary Committee's Terrorism Subcommittee, I have long suggested, and strongly supported, many of the anti-terrorism and immigration initiatives now being advocated by Republicans and Democrats alike. In my sadness about the overwhelming and tragic events that took thousands of precious lives, I am resolved to push forward on all fronts to fight against terrorism. That means delivering justice to those who are responsible for the lives lost on September 11, and reorganizing the institutions of government so that the law-abiding can continue to live their lives in freedom.

Mr. KYL

Mr. KYL. Mr. President, I withdraw the objection.

Mr. KYL. I object, Mr. President.

Mr. KYL

Mr. KYL. Mr. President, today I rise to introduce critical legislation that will help restore confidence in our country's ailing travel and tourism industry as well as serve as an immediate stimulus to our economy in general. As recent economic data have confirmed, our economy was ailing before the terrorist attacks on Tuesday, September, 11, but few were talking about emergency measures to stimulate it. What is different after September 11 is the downward spiral of the economy, led by the travel industry. Proposals for stimulating the economy have centered on traditional arguments as to whether we should focus more on stimulating business investment, consumer demand, or infrastructure. Eager for a bipartisan approach, members of Congress and President Bush appear agreeable to splitting the difference and doing a little of each. To me, that's a political solution and it ignores the emergency created in the aftermath of September 11. I believe that we need to rethink what has happened to our economy to arrive at the stimulus legislation that attacks the major problem, and, therefore, will do the most overall good. Before September 11, our economy was ailing for precisely the reasons Federal Reserve Chairman Alan Greenspan articulated, a lack of business investment. The terrorist attacks have made the general situation worse and caused an absolute emergency in certain sectors of the economy. Although I certainly agree that Congress should stimulate business investment and shore up consumer expectations, for example, by making our recent tax law permanent, cutting capital gains taxes, eliminating corporate AMT and accelerating our outdated cost recovery periods, I contend that our first focus should be directly on the sector hardest hit by these events. To illustrate my point, an analogy is useful. Our economy had a bad case of the flu before September 11. Reducing interest rates, providing tax relief, and cutting regulatory burdens were all part of the antibiotic medicine needed to get the economy healthy again. During the economy's rehabilitation period, however, it sustained a major trauma. Under these circumstances, what should be a first priority, another dose of flue medication, or treatment applied directly to the gaping wound? I believe that we must focus an emergency economic stimulus on the sector that has been most harmed: our travel industry. If we are to prevent thousands of bankruptcies, hundreds of thousands of lost jobs, as well as numerous indirect consequences to the rest of the economy, it is essential that we provide some immediate help to the travel industry. Accordingly, I am introducing legislation that seeks to treat this emergency economic situation or wound before it spreads an infection throughout the entire economy. Elements of my legislation include: Providing a temporary $500 tax credit per person ($1,000 for a couple filing jointly) for personal travel expenses for travel originating in and within the United States. This will help encourage Americans to resume their normal travel habits. Unlike general rebate checks to taxpayers, a tax credit conditioned on travel expenses ensures that the money is spent on a specific activity, in this case an activity that will generate positive economic ripples throughout the entire American economy. It will also help create confidence and encourage Americans to get back on airplanes. Since business travel expenses are already deductible, temporarily restoring full deductibility for all business entertainment expenses, including meals, that are now subject to a 50 percent limitation, would help bring back the backbone of the travel industry, the business traveler. Finally, in order to provide tax relief to those travel-related businesses most hurt by the terrorist attacks, Congress should allow these companies to ``carry back'' their losses incurred after September 11, for a temporary period of three additional years, a total, temporary, ``carry back'' period of five years. This will allow companies that have been profitable until September 11, but then lost money in excess of the past two years' amount of profit, to offset previous years' profit. Without this relief, many companies will go bankrupt, solely due to the terrorist attacks. To be quick and temporary, the credit should be available for expenses incurred before December 31, 2001. The travel could occur later. This legislation meets the criteria set forth by President Bush and the chairman of the Finance Committee. By definition, the relief would be temporary. The revenue loss attributable to this legislation for 2001 should occur no later than 2002 and so there would not be a long- term, negative drag on our federal budget. In fact, I believe that it would help ensure a positive, long-term budgetary position by getting America moving and doing business again. As for the need to stimulate consumer spending, providing consumers with incentives to travel is clearly a demand-driven idea. I also contend that it will help stem the retrenchment in business investment that the economy is experiencing in the travel industry and many related industries. Finally, travel is not a partisan issue, it is one of the most bipartisan of all issues. As Secretary O' Neill said before the Finance Committee on October 3, ``The medicine has to work and be worth the cost.'' Without airline travel, collateral consequences to related industries will be substantial. Of all the competing proposals I can think of, none more directly affects the major cause of the problem in our economy. So there it is. Our economy has sustained a specific trauma. We need a quick and focused response to this emergency condition. the ``Travel America Now Act'' provides the right medicine for the most acute problem. I urge my colleagues to join me and support this legislation. Mr. President, I ask unanimous consent that the text of this bill be printed in the Record.