Jon Kyl

Mr. KYL

Mr. KYL. Madam President, I then send to the desk amendment No. 4228. This is a Kyl-McCain amendment that would be offered as a second-degree amendment to the Cornyn amendment.

Mr. KYL. I ask unanimous consent further reading of the amendment be dispensed with.

Mr. KYL. I see another colleague here wishing to speak. I have already explained the amendment, but I will summarize it by saying we need to control the border. I believe it can be done. The Yuma sector represents a good example of how it can be done. I understand the President will be requesting some additional funding for some additional personnel and so on. The Cornyn amendment would provide funding specifically for some of the personnel who are needed on the border and some of the related activity, both Federal and State. Our second-degree amendment, offered for Senator McCain and myself, would simply add the funding necessary to implement the Operation Streamline portion of this that would provide the deterrent so people would not want to cross the border illegally because if they got caught, there would be a virtual certainty they would be incarcerated for a relatively short period of time but more, obviously, than any of them want to spend in jail. For this deterrent to work we need this additional funding. I hope when we have an opportunity to vote my colleagues will ask any questions. I am willing to discuss this on the Senate floor or privately if they like. There is a lot of other information we can provide that describes this. I think it is a reasonable approach and certainly on this supplemental appropriation legislation--which helps to fund the military needs of our country, even the National Guard if that is to be funded. This is a complement to that which I think is totally appropriate in this particular legislation. I appreciate my colleagues' indulgence and yield the floor.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent to speak as in morning business but to extend the time to up to 45 minutes.

Mr. KYL. Thank you, Mr. President. I would say, since I do not see a Member of the majority on the floor, if there is a concern with that later, and somebody wishes to slip me a note, I would be happy to try to accommodate my schedule to the majority's schedule. New START Concerns Mr. President, what I wish to speak to today is the START treaty which has been submitted by the administration for consideration by the Senate. The President signed the treaty on April 8 of this year, submitted it to the Senate for ratification on May 13, and 2 weeks ago the Foreign Relations Committee began hearings on the treaty. In the consideration of past treaties, the Senate has taken great care to consider the entire record of relevant documents and to seek the views of a wide variety of experts, and I am sure that will be done in this case as well. According to a report from Senator Thune, who is the head of the Republican Policy Committee: [On] the original START, almost 430 days passed between the time President George H.W. Bush signed it-- That was July 31, 1991-- and the U.S. Senate provided its consent to the treaty [on October 1, 1992]. As for the Treaty of Moscow, which is to terminate if New START is ratified, it was signed on May 24, 2002 and ratified by the Senate more than nine months later on March 6, 2003. That treaty, by the way, is only three pages long. So it is not surprising that it takes some time. What is surprising to me is that some have seemed intent on rushing the treaty that has been sent to us. According to Congressional Quarterly: A congressional aide who briefed reporters on the treaty said Thursday that Senate Foreign Relations [Committee] Chairman John Kerry [of Massachusetts] intended to complete hearings ``in time for the Senate to take up the treaty before the August recess, if it so chooses.'' I am not aware of any similar precedent for so rushing such a treaty of this complexity, and I am not sure why the rush would be necessary. I wish to remind my colleagues, the White House assured us there would be no problem when it permitted the treaty to expire by not seeking its extension. The reason is expressed in a Joint Statement, which said as follows: Recognizing our mutual determination to support strategic stability between the United States of America and the Russian Federation, we express our commitment, as a matter of principle, to continue to work together in the spirit of the START Treaty following its expiration, as well as our firm intention to ensure that a new treaty on strategic arms enter into force at the earliest possible date. So what did these 65 words mean? Well, Deputy Secretary of Defense Lynn told us they meant that: In this interim period of START's expiration earlier in the month, our two countries have agreed to continue observing the spirit of the treaty's terms. Spokesman Kelly said they mean that ``both sides pledged not to take any measures that would undermine the strategic stability that START has provided during this period between the expiration of the START treaty.'' So the idea that we are potentially disadvantaged every day the treaty goes unratified seems to me to be untrue, unless the Joint Statement does not mean what we were told it means. Certainly, there is no reason the Senate should not take the time it needs to perform its due diligence. The Constitution did not, after all, entrust to this body the requirement to perform the process of advise and consent on treaties, and did not set the extraordinarily high threshold of 67 votes to achieve ratification because it intended the Senate to merely rubberstamp a treaty. I remind my colleagues of the recommendation of Dr. James Schlesinger, who the chairman of the Foreign Relations Committee said in a recent hearing has been called ``the former Secretary of Everything.'' Dr. Schlesinger said: First, the Senate will wish to scrutinize the Treaty carefully, as it has previous arms control agreements. This reflects the many changes as compared to START I. Of course, the treaty is more than just the treaty text, protocols, and annexes, which we have only recently received. There are other things we have not yet received. Again, quoting from Senator Thune's report: For example, the Secretary of State is required by statute to submit a verifiability assessment of the treaty, and past practice has been for the intelligence community to submit a National Intelligence Estimate concerning the verifiability of such matters. These two documents will be critical to Senate evaluation of the treaty. Another set of documents that will be critical to the Senate's evaluation of New START, particularly the verification issue, is the annual report the President is to complete assessing other nations' compliance with their arms control, nonproliferation, and disarmament commitments. This annual report is due on April 15 of each year, with the last one submitted in August 2005--meaning the White House is now five reports behind. So in this case, the verifiability assessment will be prepared by the Assistant Secretary for Verification, Rose Gottemoeller, who also happened to be our lead negotiator on the treaty. I am not certain if she will recuse herself from drafting the document, due to the obvious conflict of interest, but Senators must surely understand this. On the matter of the NIE, Senators must carefully review the record of the proceedings of the Senate Select Committee on Intelligence, which will file a report or submit a letter on the treaty. The NIE is important. It is not simply a statement on the verifiability of the treaty or at least it should not be. To be useful, it will provide an analysis of how the treaty informs our understanding of Russia's nuclear forces. It will analyze cheating scenarios and the likelihood we will detect them. This is an important document and one that will take time to put together. Another document promised, but not yet sent to the Senate, is the nuclear force posture. Senators will, of course, want to know how the triad will be composed during the 10 years of the treaty before we consider it. It is not sufficient to merely trust that the 700 deployed launchers called for in the treaty will be sufficient. We need to see the force posture and we need to see the analysis that supports it. I joined with my colleagues on the Foreign Relations Committee who have requested access to the treaty negotiating record. I remind my colleagues that 22 U.S.C. section 2578 requires the Secretary of State to maintain a negotiating record of treaties to which the United States is a party. Obviously, Congress did not enact this requirement merely for the sake of doing it. Congress, obviously, intended to be able to have access to the record. There is a long history on this subject involving great disputes between the Senate, its committees, and its National Security Working Group--or its predecessor, the Arms Control Observer Group--which, incidentally, I cochair along with Senator Byrd, and the Executive on the INF and the START I treaty. I remind my colleagues of a statement made by Sam Nunn, the former chairman of the Senate Armed Services Committee, when he was serving in this body in 1986: Mr. President, in my opinion, the administration's rejection of our request for Senate access threatens a basic institutional interest of the U.S. Senate--its constitutional role in the treaty process. I agree with the former chairman of the Armed Services Committee that it is important for the Senate to have access to this negotiating record. Finally, let me say, I come to this very serious process with an open mind. I supported the START II treaty and the Moscow Treaty. I opposed the Chemical Weapons Convention and the Comprehensive Test Ban Treaty. Not all arms control agreements are the same. And just because they were negotiated, it does not follow they are in our best interest. So we need to examine the record and this treaty carefully. Today, I want to identify some areas of concern I believe Senators will want to focus on as they begin to consider the treaty. These are not objections. They are matters of concern we will want to investigate: One, the required nuclear modernization plan; two, limits on U.S. nuclear force levels and force structure; three, impact on U.S. missile defenses; four, verification under the new treaty; five, the impact of the treaty on the disparity between United States and Russian nuclear force levels, especially regarding tactical nuclear weapons; six, the Bilateral Consultative Commission; and, seven, the impact of the treaty on prompt global strike. Perhaps we should consider an eighth category and a new metric by which to evaluate the treaty. Secretary Clinton stated on March 18 before the Senate Foreign Relations Committee: I am not suggesting that this treaty alone will convince Iran or North Korea to change their behavior, but it does demonstrate our leadership and strengthens our hand as we seek to hold these and other governments accountable. I suggest the administration may want to carefully consider whether it wants the Senate to evaluate the treaty on that basis. What real progress has been made on nonproliferation since the President signed the treaty? Is the latest Security Council resolution an indication of the value of the New START? While the U.N. Security Council has not adopted a resolution yet with respect to Iran, the announcement by the administration on May 18 included no reference to any sanctions that would close the noose around the IRGC, around Iran's energy sector, especially refined petroleum products, and Iran's banking sector, and all the other revenue streams that feed Iran's illegal nuclear weapons program and its terrorism apparatus. Most of what is in the draft resolution--for example, references to the Iranian Central Bank--are in the preamble. The administration has told us that preambles are not binding. So which is it? Are preambles binding or is the draft resolution a bunch of words with little effect? Also very troubling is the disclosure that the resolution does not prohibit the sale to Iran by Russia of the S-300 antiaircraft missile system. Not including the S-300 in the draft Security Council resolution is unfortunate confirmation that the administration has not ``reset'' relations with Russia in any meaningful way. In fact, the Moscow-based Kommersant Online reported this morning--and I quote-- ``Moreover, according to the terms of the deal, Washington is also lifting its objections to the sale to Iran of Russian S-300 antiaircraft missile systems.'' I cannot stress how important this issue is. Under no circumstances can the administration permit Russia to think the United States is not opposed to this transfer. If Russia proceeds with this transfer, not only will the Russian entities involved have to be sanctioned under U.S. law, but United States-Russia relations will be in a grave state of crisis. It would appear the reason Russia agreed to the weak U.N. sanctions resolution is it will not affect any of its ties with Tehran. At the same time, it has announced it will embark on nuclear cooperation with Syria, as it announces, for example, the planned activation of the Bushehr reactor next August. What is the administration's reaction? We have learned it will roll back proliferation sanctions on Russian entities. Could this possibly be a quid pro quo for Russia's support for the draft resolution? I thought the START treaty was supposed to ensure their support. Nor has the President's ``leading by example,'' touted by Secretary Clinton, affected even NATO member Turkey and hemispheric member Brazil. The administration was obviously blindsided by Brazil and Turkey, working instead with Iran on an alternative plan. So it is fair to ask: What progress has been made on nonproliferation that the administration can point to that suggests the START treaty is a meaningful tool in keeping States such as Iran and North Korea from violating their nuclear nonproliferation treaty obligations? Let me turn back directly to START and begin the seven items I mentioned, beginning with the first: the modernization plan. This is the plan that section 1251 of last year's Defense Authorization Act required be submitted at the same time the treaty was sent to us for its ratification. The key goal of most arms control agreements is to achieve strategic stability. The New START treaty was negotiated on the premise of numeric stability, but there are a number of underlying factors required, a foundation upon which to base that stability. For the United States, it is the confidence provided by both the current U.S. nuclear warheads and delivery systems and by the weapons complex and its capacity to sustain and modernize those nuclear warheads. For this reason, 41 Senators wrote to President Obama last December, highlighting the direct link between nuclear force reductions under the treaty and modernization of the U.S. nuclear weapons complex. What are some of the factors that affect its strategic stability, beyond the treaty numbers? Well, first, the weapons we deploy must be safe, secure and, most critically, for stability they must be reliable. Given the age of our current weapons, averaging close to 30 years, we must be extremely diligent about monitoring those deployed weapons through our surveillance programs. We also have warheads that require life extensions such as the W76, which is underway, and soon, I hope, the B61. Without life extension, these weapons will soon cease to be capable of protecting our country. We must be looking to the future stockpile with new approaches, including life extension, using a full spectrum of options responsive to future needs. To achieve this will require a strong science, technology, and engineering workforce in our national laboratories and military complex that maintains critical skills and is resolute in its determination to solve the complicated problems at hand. We must make an intense, unified push to restore a viable production capacity for nuclear warheads. Herein lives the greatest chink in our armor. As former Secretary Schlesinger recently testified: The Russians have a live production base. They turn over their inventory of nuclear weapons every 10 years. We do not. Finally, we cannot neglect the delivery systems that carry these nuclear weapons. They are also aging and they also are prey to neglect and loss of critical capabilities. The section 1251 plan was to address the issues I have just highlighted. We have received this classified report, and we are in the process of reviewing the statements of the administration to ensure that modernization is, in fact, adequately addressed. The administration has outlined in this report a plan to provide, over the next decade, $80 billion for nuclear weapon activities and about $100 billion for delivery system activities. To be clear, most of this money is not new. In fact, the bulk of the money covers current spending levels plus inflation for the decade. While this is a needed improvement from the grossly inadequate fiscal year 2010 budget submission, we do not yet know how much the administration intends to commit to modernization and how it will be spent. It has been well advertised that there is a renewed emphasis by the administration on sustaining our stockpile and modernizing the infrastructure. Congress has long recognized the need for this extra attention, for example, calling for the Stockpile Management Program and the section 1251 plan requirement in the fiscal year 2010 National Defense Authorization Act. But after reviewing the fiscal year 2011 budget input, I am concerned the administration has not done all it should. The fiscal year 2011 budget weapons activities part of the budget of $7 billion is a 10-percent increase over fiscal year 2010, with a 26- percent increase in the category of Directed Stockpile Work. This looks good on paper. The question is the substance. The fiscal years 2007 through 2009 plans from NNSA predicted that the fiscal year 2011 budget should be, on average, $7 billion--exactly what the administration asked for this year. What we need to know is how much in addition to the $7 billion for NNSA weapon activities over the next 10 years. A cursory review of the numbers recommended in the section 1251 plan shows the proposed funding is, in fact, barely keeping up with inflation. In fiscal year 2010, Congress provided roughly $6.4 billion for the current nuclear weapons account at NNSA. If the fiscal year 2010 budget is assumed as a new 10-year baseline, that would be $64 billion of the $80 billion proposal for nuclear weapons activities at NNSA, assuming no increase for inflation or increased costs of modernization. If you assume a standard rate of inflation of 3 percent to cover cost-of-living adjustments in salaries and increased material costs using the fiscal year 2010 appropriations as the baseline, then holding that budget constant would require a total of $75.6 billion over the 10-year period. If a 2-year rate of inflation is used, then the increase is about $8 billion over the next 10 years. Unfortunately, we know the fiscal year 2010 budget is not a sustainable baseline. The Senate Energy and Water Appropriations Subcommittee noted in its committee report last year that: The committee does not believe this level of funding is adequate to support modernization of the complex including critical investment in infrastructure and scientific capabilities. So our stockpile is aging, refurbishments are behind schedule, the Cold War infrastructure is falling apart, and the critical science and technology skills that underwrite our nuclear deterrence are atrophied. But rather than seeing a new commitment to this problem, the budget request and the 1251 plan seem to be based on a plan--the fiscal year 2010 budget--that wasn't making much progress as it was. It appears to me this plan was based not so much on what is needed but what funding the administration was willing to make available. In this case, it seems to be what funding Secretary Gates could sacrifice from his budget because that is how the additional money for this year came about. Why was the administration only willing to find funding authority in the DOD budget, the one department of the Federal Government engaged in fighting two wars? Secretary Gates had to transfer money from his budget over to the Energy Department budget. As important as the amount of money available is the freedom to pursue all options available to ensure the safety, security, and reliability of our highly complex nuclear stockpile. The Nuclear Posture Review restricts options for modernizing existing warheads by stating: In any decision to proceed to engineering development for warhead LEPs-- That is, life extension projects-- the United States will give strong preference to options for refurbishment or reuse. Replacement of nuclear components would be undertaken only if critical Stockpile Management Program goals could not otherwise be met and if specifically authorized by the President and approved by Congress. The 1251 plan tries to deal with this overly restrictive limitation by stating: The Laboratory Directors will ensure that the full range of life extension program approaches, including refurbishment, reuse, and replacement of nuclear components are studied. But it still reiterates that there is a ``policy preference for refurbishment and reuse in decisions to proceed from study to engineering development.'' Why would our nuclear scientists spend time and limited resources and risk their careers studying the full range of options if, when they make their recommendations, the President requires that they prove the impossible; namely, that replacement must be the only choice? Why isn't the standard instead what is the best course of action? The Perry-Schlesinger Commission noted the importance of flexibility when it reported to Congress last May. It stated there are: . . . options along a spectrum . . . in between are various options to utilize existing components and design solutions while mixing in new components and solutions as needed. Different warheads may lend themselves to different solutions along this spectrum. The decision on which approach is best should be made on a case-by-case basis as the existing stockpile of warheads ages. The bipartisan commission of six Republicans and six Democrats determined that: So long as modernization proceeds within the framework of existing U.S. policy, it should encounter minimum political difficulty. Well, the NPR changes that policy, and the section 1251 plan reiterates the NPR language after initially suggesting scientists will be given complete latitude. I believe this will have a chilling effect on the scientists' work and that this issue must be resolved. Similarly, we have questions concerning the administration's commitment to maintaining and modernizing nuclear delivery systems. While the administration suggests in the Nuclear Posture Review and the 1251 plan that it will maintain a nuclear triad, there is no funding in that plan for follow-on strategic systems, other than a replacement for our aging nuclear ballistic missile submarines. In fact, the 1251 plan notes that the administration will not even make a decision regarding a next generation bomber and a follow-on ICBM until 2013 and 2015, respectively. Likewise, rather than commit to a new nuclear cruise missile, the administration instead announces that a study is being done to determine if it will be replaced. Finally, the 1251 plan is silent on funding needed to develop and deploy conventional prompt global strike capabilities which, according to the Nuclear Posture Review, are to play a larger role in our strategic posture. The notional nuclear force structure under New START suggested in the 1251 plan lacks sufficient detail. It calls for up to 420 ICBMs, up to 60 strategic bombers, and no more than 240 SLBMs. It would be helpful to know exactly how U.S. forces will be configured, how we might expect Russia to configure its nuclear forces, both strategical and tactical, and then have a net assessment to determine whether the United States is still capable of carrying out its deterrence missions, especially providing nuclear security guarantees to allies and partners. With regard to New START limitations and force structure, the New START treaty limits the number of deployed strategic delivery systems to 700. Since the United States today deploys approximately 800 delivery systems, this will require a reduction of some 180 ICBMs, SLBMs, and/or strategic bombers to reach the treaty limitations--more if we deploy conventional global strike missiles, since, by the terms of the treaty, these must be counted as nuclear as well. The Russians, on the other hand, are already below the 700 figure. So this is the first time that at least I am aware the United States will agree to launcher limitations that will require the United States to reduce its forces but require no reductions by Russia. It is fair to ask what the United States got for this concession. Moreover, because a bomber counts as only one delivery system and one warhead no matter how many bombs or cruise missiles are loaded on it, the Russians are able legally to field more than 1,150 warheads limited by the treaty. While this may appear to advantage both sides, I do not fear U.S. cheating--we would not--but the Russians could, and because of weak verification tools in the treaty, I am not sure we will know. This is another reason to await the NIE before making a decision on the treaty. Let me quote from the Heritage Foundation analysis on this point. It says: In fact, despite Obama administration claims to the contrary, New START's counting rules and apparent lapses will permit increases in Russian strategic force levels above the 1,700 to 2,200 deployed warhead limit of the Moscow Treaty. I am not going to quote the remainder of this analysis, but I would ask unanimous consent that the statement, as I submit it for the Record, contain the remainder of this analysis.

Mr. KYL. The bottom line is, there were concessions by the United States. The Russian conventions are essentially strictly based on their financial situation, not by any New START warhead ceilings. So what I think we should ask is why did we agree to it and what did we get in return. Additionally, what will the U.S. nuclear force structure look like after eliminating these 180 U.S. strategic delivery systems? I have already talked about it, but I wish to explain why this is an important requirement for Senators to consider before we vote on the treaty. The administration has provided some initial information as a basis for future planning. It could retain up to 420 ICBMs, up to 60 strategic bombers, and deploy no more than 240 SLBMs at any time. We will require further details about where these reductions will be made and how this force structure fares against our most likely prediction about how the Russians will design their nuclear forces. An issue of concern is that while the United States intends to deploy only single-warhead ICBMs under the administration's new NPR, the treaty appears to be driving the Russians to deploy multiple-warhead missiles for their ICBM force. Land-based multiple-warhead missiles have long been considered destabilizing because they place a premium on striking first for fear of losing a large proportion of one's warheads by a preemptive strike by the other side. For this reason, MIRVs were to be banned by the START II treaty that never entered into force. Now, 80 percent of Russia's ICBM force will be road mobile and MIRVed. In light of this, it is curious to hear the administration now argue that New Start will increase strategic stability. Assuming the U.S. nuclear force structure is survivable, the next question is whether it is sufficient for deterrence purposes-- especially the more difficult mission of extending nuclear guarantees to allies and partners. As I said, the New Start treaty limits deployed strategic delivery systems to 700. A September 2008 white paper by the Defense and Energy Departments suggests a force of approximately 900 delivery systems is necessary for deterrence purposes, and in congressional testimony last summer, Admiral Mullen and General Cartwright expressed concerns with force levels below 800. How, then, can 700 be the correct number? Again, Senators must see the analysis themselves to make a decision on this. I don't see how a mere assurance in an unclassified committee hearing can be sufficient on a matter like this. As to missile defense, despite being told consistently from the very beginning of negotiations that missile defense will be addressed only in the preamble of the treaty, we now discover that article V contains a direct restriction on U.S. missile defense activities--i.e. neither party can convert ICBM or SLBM launchers into launchers for missile defense interceptors. In fact, just prior to the treaty's public release, Under Secretary of State Ellen Tauscher said the following: ``But there is no limit or constraint on what the United States can do with its missile defense systems.'' Now, this begs two questions: 1, did Ms. Tauscher not know what was in the treaty her subordinates were negotiating; or 2, did whoever wrote Ms. Tauscher's talking points think Senators wouldn't notice an entire article of the treaty text? Some administration officials have tried to explain this away by saying that, since this administration has no current plans to do so, it's not a constraint. That stands the English language on its head. This concession to the Russian Federation will establish a dangerous precedent with respect to including missile defense limitations in future offensive arms control agreements. Why did the U.S. side feel it necessary to concede this point? What did we get in return? Again, this is why it is important to see the full negotiating record. When viewed together, the treaty's preamble, the Russian unilateral statement on missile defense, and remarks by senior Russian officials provide the potential for Russia to essentially blackmail the U.S. against increasing its missile defense capabilities by threatening to withdraw from the treaty. The preamble states that ``current strategic defensive arms do not undermine the viability and effectiveness of the strategic offensive arms of the parties.'' Does this suggest that moving beyond ``current'' systems could provide grounds for withdrawal? The Russians note in their unilateral statement that the treaty ``can operate and be viable only if the United States of America refrains from developing its missile defense capabilities quantitatively or qualitatively,'' and also link American missile defense capabilities to the treaty's withdrawal clause. Shouldn't we read this as an attempt to exert political pressure to forestall continued development and deployment of U.S. missile defenses? The preamble doesn't have to be legally binding to be influential. Even more disturbing is the administration's decision to limit U.S. missile defenses to be effective only against a ``limited attack,'' thus exempting Russian capabilities from the reach of our missile defenses. Since the U.S. unilateral statement makes quite clear that the administration intends to deploy only ``limited'' missile defenses to deal with ``limited attack,'' the administration has left itself no room to respond to strategic surprise or a disintegration of the current strategic relationship with key nuclear powers, let alone an accidental launch. Let me quote from the text of the U.S. unilateral statement: The United States missile defense systems would be employed to defend the United States against limited missile launches, and to defend its deployed forces, allies and partners against regional threats. The United States intends to continue improving and deploying its missile defense systems in order to defend itself against limited attack and as part of our collaborative approach to strengthening stability in key regions. Here is something else that's troubling. General Jones, in a May 12, 2010, letter to me wrote, ``Russian unilateral statement is both beyond the control of the Administration and not binding or limiting in any way on current or planned U.S. missile defense programs.'' I will repeat that because it is important: ``not binding or limiting in any way on current or planned U.S. missile defense programs.'' What about a program that is not current or planned? Our unilateral statement must lead one to ask whether the Russian statement was answered by the U.S. statement, in effect saying, ``you don't worry about our missile defense because we won't make it effective against you.'' What if a future administration decides to return to the concept of actually protecting America from any nuclear attack even from Russia? The Russians will have the right to rely on these statements for at least the ten years of the treaty's operation. These statements may become the new baseline in future arms control negotiations between the United States and the Russian Federation. Ronald Reagan enunciated the vision of U.S. missile defense, which I believe is as true today as it was in 1983: What if free people could live secure in the knowledge that their security did not rest upon the threat of instant U.S. retaliation to deter a Soviet attack, that we could intercept and destroy strategic ballistic missiles before they reached our own soil or that of our allies? But isn't it worth every investment necessary to free the world from the threat of nuclear war? We know it is.'' I am concerned that when Russian Foreign Minister Lavrov warned, on March 28, that ``the treaty and all the obligations it contains are valid only within the context of the levels which are now present in the sphere of strategic defensive systems,'' it means the Russians will threaten to pull out of START if we deploy additional ground-based interceptors in Alaska or if we deploy the SM-3 block IIB missile in Europe, as the administration promised. There is something fundamentally disturbing about entering into a treaty with the Russians when we have such a divergence in view over a substantial issue like missile defense. At the very least this likely sets the stage for misunderstanding and confrontation as the United States continues its missile defense activities, particularly in Europe. Remember, the goal of the treaty was supposed to be stability from a common understanding and agreement on core principles. Those who have rushed to embrace the treaty must confront this reality and the administration must be required to square the circle. On verification, Secretary Gates testified that this treaty provides ``a strong verification regime . . . which provides a firm basis for monitoring Russia's compliance with its treaty obligations.'' I certainly have a great deal respect for Secretary Gates, but I'm not sure how he can know that yet. Has he seen the NIE on the treaty? Or the State Department verifiability assessment? And, even if treaty noncompliance can be verified, what have we lost in intelligence as a result of the weakening of the verification compared to the START treaty? Independent assessments of the treaty suggest important new gaps in monitoring. For example, the treaty no longer requires on-the-ground, continuous monitoring of Russia's missile manufacturing facility and permits Russia to withhold telemetry of many of its missile tests, undermining our ability to know how many missiles are being produced and, perhaps, limiting our ability to understand what new capabilities are being developed. The administration has blamed the Bush administration for this, and I have asked for the evidence in letters to the Secretary of State, including a December 4, 2009, letter. So far the administration has been unwilling to substantiate this allegation-- which it could do by responding to my letters and inquiries on the matter. The ability to monitor compliance with the terms of the treaty is important, but as important is whether our intelligence community can monitor the status of Russian strategic nuclear forces. What new capabilities is Russia developing? Is Russia building and stockpiling additional missiles and warheads that could provide it a break-out capability? Will we be able to maintain confidence in our assessment of Russian forces throughout the 10-year period of the treaty? According to Secretary Gates, ``And I think what you are likely to hear from them [the Intelligence Community] is that they have high confidence in their ability to monitor this treaty until toward the end of the 10-year term, when their confidence level will go to moderate.'' What is the impact of a judgment like that when we know Russia is increasing its reliance on its nuclear forces, conducting war games involving simulating raids against NATO allies like Poland, and modernizing almost every element of its strategic and tactical nuclear forces? For example, Russia is, in fact, deploying a new multipurpose attack submarine that can launch long range cruise missiles with nuclear warheads against land targets at a range of 5,000 kilometers-- just barely missing the threshold to be considered a strategic weapon under the New START treaty. Of course, a tactical nuclear weapon has a strategic effect if it is detonated above a U.S. or allied city. We will need the intelligence community to consider these important factors before we can fully evaluate the treaty; I look forward to a thorough NIE that rigorously analyzes our ability to monitor Russian nuclear forces. And, I am sure the Intelligence Committee will hold numerous hearings to flesh out these issues. As to the impact the treaty has on U.S. and Russian nuclear force levels, especially regarding tactical nuclear weapons, the administration argues that New Start will ``increase'' or ``provide'' strategic stability, but has yet to explain why the 10-1 disparity in tactical nuclear weapons doesn't upset that strategic stability, especially at lower levels of strategic nuclear forces. As former Secretary of Defense James Schlesinger recently testified, ``the significance of tactical nuclear weapons rises steadily as strategic nuclear arms are reduced.'' The Strategic Posture Commission estimates Russia may have approximately 3,800 operational tactical nuclear warheads, and that the combination of new warhead designs and precision delivery systems ``opens up new possibilities for Russian efforts to threaten to use nuclear weapons to influence regional conflicts.'' Likewise, Under Secretary of Defense for Policy, Michele Flournoy, has observed that the Russians are ``actually increasing their reliance on nuclear weapons and the role of nuclear weapons in their strategy.'' There is a fine line--actually, no line at all except as to how they are delivered--between strategic and tactical weapons. If the Russians intend to use nuclear weapons to influence regional conflicts, then shouldn't we try to understand the impact of their numbers in the context of declining U.S. strategic nuclear weapons required by the treaty? In other words, what will be the effect of Russian tactical nuclear weapons on strategic stability and our ability to extend deterrence into various regions? We should understand this before agreeing with the administration's contention that this treaty increases stability. The administration's retort is that they understand the importance of dealing with the disparity in tactical nuclear weapons, but that we must first ratify New Start before getting to Russian tactical nuclear weapons in the next treaty. But what leverage will we have left? And why should we think a ``next treaty'' that further reduces our weapons will be in our rational interest? And if tactical weapons are as important as most seem to believe, why didn't we make them a priority in this treaty? Because the Russians didn't want to talk about them? Why was that enough to demur? How hard did we push? Again, this is why Senators need to see the negotiating record, and why they shouldn't make up their minds on the treaty until they do. BCC--Bilateral Consultative Commission One of the matters the administration will have to address before the Senate could consider ratification is the role of the Bilateral Consultative Commission in the treaty. As Ambassadors Edelman and Joseph observe in their May 10th National Review Online article: A preliminary reading of the Treaty Protocol suggests that the U.S. and Russian commissioners could reach secret agreement on changes to ensure the `viability and effectiveness' of the treaty. These changes could create additional limits on missile defense that would appear to be beyond the reach of the Senate's responsibility to advise and consent. Obviously, that is not acceptable. This matter will have to be thoroughly vetted during the hearings and presumably be dealt with in the resolution of ratification. While there may have been similar provisions in past treaties, the Senate should insist on a reasonable check on such an open-ended provision in the resolution of ratification. Now to the conventional prompt global strike or PGS. Although tactical nuclear weapons were not addressed in this treaty, the United States conceded to Russian demands to place limits on our conventional prompt global strike capabilities by counting conventionally armed strategic ballistic missiles under the limits for delivery systems. At the very least, this will require a one-for-one reduction in U.S.- deployed nuclear weapons for each conventional ICBM it intends to deploy. This is yet another reason Senators need to see the force posture before they can make up their minds on the treaty. The treaty also sets the stage for further limitations on U.S. conventional strike capabilities in the preamble by noting that the parties are ``mindful of the impact of conventionally armed ICBMs and SLBMs on strategic stability.'' Does any Senator imagine the Russians will not raise objections when the United States begins the serious development of prompt global strike capabilities, as called for by the Nuclear Posture Review? Moreover, the administration must be candid when it testifies about issues such as PGS missile defense. It cannot continue to state that the treaty does not limit PGS or missile defenses when it clearly does. In conclusion, Secretary Gates and Secretary Clinton have predicated their support for the treaty on their answer to the question: Are we better off with an agreement or without it? They suggest that without the agreement, we would lack the ability to limit and monitor Russian strategic forces. My response is twofold: First, the existing 2002 Moscow Treaty already limits Russian warheads. True, the Moscow Treaty relied on the now-expired START treaty's verification procedures, but these could have been extended by mutual consent. The Russians refused or the administration did not bother to ask. We will not know until the administration shares the negotiating record with us. Second, I believe the better question is, Are we better off with this treaty or a treaty that did not include any references to missile defense or prompt global strike and which did contain limitations on Russian tactical nuclear weapons? These are issues for Senators to consider when they debate the resolution of ratification and amendments to it, whether they be reservations or conditions or otherwise. In her opening statement at the May 18 Foreign Relations Committee hearing on New START, Secretary Clinton asserted that ``the choice before us is between this treaty and no treaty governing our nuclear security relationship with Russia.'' This assertion is obviously a false choice. It reflects sort of an ``our way or the highway'' approach, completely inconsistent with the responsibilities of the Senate. Since the administration did not consult the Senate for its advice before making its negotiating concessions, it should not now argue that the Senate has only the choice of voting for the treaty that we cannot amend and therefore must vote yes and that it would be impossible to negotiate another agreement. After all, isn't that what both sides did in walking away from the START II agreement? The Senate is not a rubberstamp. We have the opportunity and responsibility to fully understand this treaty and understand whether it furthers the security of the American people. And we must consider it in the context of other considerations such as the nuclear modernization that goes hand-in-hand with consideration of the treaty. The administration will have to find a way, for example, to ensure the necessary funding for modernization before the Senate votes on the treaty. Sergei Karagonov, chairman of the Russian Council on Defense and Foreign Policy, summarized the Russian view of the treaty saying: In the course of the negotiations, Russia reached almost all of the objectives it could possibly set. I think that is a pretty good metric by which to evaluate the outcome of the treaty. Are we able to say the same thing for the United States? That is a question which will need to be answered affirmatively for the Senate to ratify the treaty. We have just begun the process of evaluation and potentially ratification. I urge all of my colleagues to refrain from judgments before our process is complete. I do not doubt there are arguments in support of the treaty. The recitation of my concerns today should be taken as just that--concerns--hopefully to make the point that there are reasons for us to be careful and thoughtful and not jump to conclusions. I look forward to an exercise worthy of the Senate in the consideration of this important submission.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent to speak as in morning business but to extend the time to up to 45 minutes.

Mr. KYL. Thank you, Mr. President. I would say, since I do not see a Member of the majority on the floor, if there is a concern with that later, and somebody wishes to slip me a note, I would be happy to try to accommodate my schedule to the majority's schedule. New START Concerns Mr. President, what I wish to speak to today is the START treaty which has been submitted by the administration for consideration by the Senate. The President signed the treaty on April 8 of this year, submitted it to the Senate for ratification on May 13, and 2 weeks ago the Foreign Relations Committee began hearings on the treaty. In the consideration of past treaties, the Senate has taken great care to consider the entire record of relevant documents and to seek the views of a wide variety of experts, and I am sure that will be done in this case as well. According to a report from Senator Thune, who is the head of the Republican Policy Committee: [On] the original START, almost 430 days passed between the time President George H.W. Bush signed it-- That was July 31, 1991-- and the U.S. Senate provided its consent to the treaty [on October 1, 1992]. As for the Treaty of Moscow, which is to terminate if New START is ratified, it was signed on May 24, 2002 and ratified by the Senate more than nine months later on March 6, 2003. That treaty, by the way, is only three pages long. So it is not surprising that it takes some time. What is surprising to me is that some have seemed intent on rushing the treaty that has been sent to us. According to Congressional Quarterly: A congressional aide who briefed reporters on the treaty said Thursday that Senate Foreign Relations [Committee] Chairman John Kerry [of Massachusetts] intended to complete hearings ``in time for the Senate to take up the treaty before the August recess, if it so chooses.'' I am not aware of any similar precedent for so rushing such a treaty of this complexity, and I am not sure why the rush would be necessary. I wish to remind my colleagues, the White House assured us there would be no problem when it permitted the treaty to expire by not seeking its extension. The reason is expressed in a Joint Statement, which said as follows: Recognizing our mutual determination to support strategic stability between the United States of America and the Russian Federation, we express our commitment, as a matter of principle, to continue to work together in the spirit of the START Treaty following its expiration, as well as our firm intention to ensure that a new treaty on strategic arms enter into force at the earliest possible date. So what did these 65 words mean? Well, Deputy Secretary of Defense Lynn told us they meant that: In this interim period of START's expiration earlier in the month, our two countries have agreed to continue observing the spirit of the treaty's terms. Spokesman Kelly said they mean that ``both sides pledged not to take any measures that would undermine the strategic stability that START has provided during this period between the expiration of the START treaty.'' So the idea that we are potentially disadvantaged every day the treaty goes unratified seems to me to be untrue, unless the Joint Statement does not mean what we were told it means. Certainly, there is no reason the Senate should not take the time it needs to perform its due diligence. The Constitution did not, after all, entrust to this body the requirement to perform the process of advise and consent on treaties, and did not set the extraordinarily high threshold of 67 votes to achieve ratification because it intended the Senate to merely rubberstamp a treaty. I remind my colleagues of the recommendation of Dr. James Schlesinger, who the chairman of the Foreign Relations Committee said in a recent hearing has been called ``the former Secretary of Everything.'' Dr. Schlesinger said: First, the Senate will wish to scrutinize the Treaty carefully, as it has previous arms control agreements. This reflects the many changes as compared to START I. Of course, the treaty is more than just the treaty text, protocols, and annexes, which we have only recently received. There are other things we have not yet received. Again, quoting from Senator Thune's report: For example, the Secretary of State is required by statute to submit a verifiability assessment of the treaty, and past practice has been for the intelligence community to submit a National Intelligence Estimate concerning the verifiability of such matters. These two documents will be critical to Senate evaluation of the treaty. Another set of documents that will be critical to the Senate's evaluation of New START, particularly the verification issue, is the annual report the President is to complete assessing other nations' compliance with their arms control, nonproliferation, and disarmament commitments. This annual report is due on April 15 of each year, with the last one submitted in August 2005--meaning the White House is now five reports behind. So in this case, the verifiability assessment will be prepared by the Assistant Secretary for Verification, Rose Gottemoeller, who also happened to be our lead negotiator on the treaty. I am not certain if she will recuse herself from drafting the document, due to the obvious conflict of interest, but Senators must surely understand this. On the matter of the NIE, Senators must carefully review the record of the proceedings of the Senate Select Committee on Intelligence, which will file a report or submit a letter on the treaty. The NIE is important. It is not simply a statement on the verifiability of the treaty or at least it should not be. To be useful, it will provide an analysis of how the treaty informs our understanding of Russia's nuclear forces. It will analyze cheating scenarios and the likelihood we will detect them. This is an important document and one that will take time to put together. Another document promised, but not yet sent to the Senate, is the nuclear force posture. Senators will, of course, want to know how the triad will be composed during the 10 years of the treaty before we consider it. It is not sufficient to merely trust that the 700 deployed launchers called for in the treaty will be sufficient. We need to see the force posture and we need to see the analysis that supports it. I joined with my colleagues on the Foreign Relations Committee who have requested access to the treaty negotiating record. I remind my colleagues that 22 U.S.C. section 2578 requires the Secretary of State to maintain a negotiating record of treaties to which the United States is a party. Obviously, Congress did not enact this requirement merely for the sake of doing it. Congress, obviously, intended to be able to have access to the record. There is a long history on this subject involving great disputes between the Senate, its committees, and its National Security Working Group--or its predecessor, the Arms Control Observer Group--which, incidentally, I cochair along with Senator Byrd, and the Executive on the INF and the START I treaty. I remind my colleagues of a statement made by Sam Nunn, the former chairman of the Senate Armed Services Committee, when he was serving in this body in 1986: Mr. President, in my opinion, the administration's rejection of our request for Senate access threatens a basic institutional interest of the U.S. Senate--its constitutional role in the treaty process. I agree with the former chairman of the Armed Services Committee that it is important for the Senate to have access to this negotiating record. Finally, let me say, I come to this very serious process with an open mind. I supported the START II treaty and the Moscow Treaty. I opposed the Chemical Weapons Convention and the Comprehensive Test Ban Treaty. Not all arms control agreements are the same. And just because they were negotiated, it does not follow they are in our best interest. So we need to examine the record and this treaty carefully. Today, I want to identify some areas of concern I believe Senators will want to focus on as they begin to consider the treaty. These are not objections. They are matters of concern we will want to investigate: One, the required nuclear modernization plan; two, limits on U.S. nuclear force levels and force structure; three, impact on U.S. missile defenses; four, verification under the new treaty; five, the impact of the treaty on the disparity between United States and Russian nuclear force levels, especially regarding tactical nuclear weapons; six, the Bilateral Consultative Commission; and, seven, the impact of the treaty on prompt global strike. Perhaps we should consider an eighth category and a new metric by which to evaluate the treaty. Secretary Clinton stated on March 18 before the Senate Foreign Relations Committee: I am not suggesting that this treaty alone will convince Iran or North Korea to change their behavior, but it does demonstrate our leadership and strengthens our hand as we seek to hold these and other governments accountable. I suggest the administration may want to carefully consider whether it wants the Senate to evaluate the treaty on that basis. What real progress has been made on nonproliferation since the President signed the treaty? Is the latest Security Council resolution an indication of the value of the New START? While the U.N. Security Council has not adopted a resolution yet with respect to Iran, the announcement by the administration on May 18 included no reference to any sanctions that would close the noose around the IRGC, around Iran's energy sector, especially refined petroleum products, and Iran's banking sector, and all the other revenue streams that feed Iran's illegal nuclear weapons program and its terrorism apparatus. Most of what is in the draft resolution--for example, references to the Iranian Central Bank--are in the preamble. The administration has told us that preambles are not binding. So which is it? Are preambles binding or is the draft resolution a bunch of words with little effect? Also very troubling is the disclosure that the resolution does not prohibit the sale to Iran by Russia of the S-300 antiaircraft missile system. Not including the S-300 in the draft Security Council resolution is unfortunate confirmation that the administration has not ``reset'' relations with Russia in any meaningful way. In fact, the Moscow-based Kommersant Online reported this morning--and I quote-- ``Moreover, according to the terms of the deal, Washington is also lifting its objections to the sale to Iran of Russian S-300 antiaircraft missile systems.'' I cannot stress how important this issue is. Under no circumstances can the administration permit Russia to think the United States is not opposed to this transfer. If Russia proceeds with this transfer, not only will the Russian entities involved have to be sanctioned under U.S. law, but United States-Russia relations will be in a grave state of crisis. It would appear the reason Russia agreed to the weak U.N. sanctions resolution is it will not affect any of its ties with Tehran. At the same time, it has announced it will embark on nuclear cooperation with Syria, as it announces, for example, the planned activation of the Bushehr reactor next August. What is the administration's reaction? We have learned it will roll back proliferation sanctions on Russian entities. Could this possibly be a quid pro quo for Russia's support for the draft resolution? I thought the START treaty was supposed to ensure their support. Nor has the President's ``leading by example,'' touted by Secretary Clinton, affected even NATO member Turkey and hemispheric member Brazil. The administration was obviously blindsided by Brazil and Turkey, working instead with Iran on an alternative plan. So it is fair to ask: What progress has been made on nonproliferation that the administration can point to that suggests the START treaty is a meaningful tool in keeping States such as Iran and North Korea from violating their nuclear nonproliferation treaty obligations? Let me turn back directly to START and begin the seven items I mentioned, beginning with the first: the modernization plan. This is the plan that section 1251 of last year's Defense Authorization Act required be submitted at the same time the treaty was sent to us for its ratification. The key goal of most arms control agreements is to achieve strategic stability. The New START treaty was negotiated on the premise of numeric stability, but there are a number of underlying factors required, a foundation upon which to base that stability. For the United States, it is the confidence provided by both the current U.S. nuclear warheads and delivery systems and by the weapons complex and its capacity to sustain and modernize those nuclear warheads. For this reason, 41 Senators wrote to President Obama last December, highlighting the direct link between nuclear force reductions under the treaty and modernization of the U.S. nuclear weapons complex. What are some of the factors that affect its strategic stability, beyond the treaty numbers? Well, first, the weapons we deploy must be safe, secure and, most critically, for stability they must be reliable. Given the age of our current weapons, averaging close to 30 years, we must be extremely diligent about monitoring those deployed weapons through our surveillance programs. We also have warheads that require life extensions such as the W76, which is underway, and soon, I hope, the B61. Without life extension, these weapons will soon cease to be capable of protecting our country. We must be looking to the future stockpile with new approaches, including life extension, using a full spectrum of options responsive to future needs. To achieve this will require a strong science, technology, and engineering workforce in our national laboratories and military complex that maintains critical skills and is resolute in its determination to solve the complicated problems at hand. We must make an intense, unified push to restore a viable production capacity for nuclear warheads. Herein lives the greatest chink in our armor. As former Secretary Schlesinger recently testified: The Russians have a live production base. They turn over their inventory of nuclear weapons every 10 years. We do not. Finally, we cannot neglect the delivery systems that carry these nuclear weapons. They are also aging and they also are prey to neglect and loss of critical capabilities. The section 1251 plan was to address the issues I have just highlighted. We have received this classified report, and we are in the process of reviewing the statements of the administration to ensure that modernization is, in fact, adequately addressed. The administration has outlined in this report a plan to provide, over the next decade, $80 billion for nuclear weapon activities and about $100 billion for delivery system activities. To be clear, most of this money is not new. In fact, the bulk of the money covers current spending levels plus inflation for the decade. While this is a needed improvement from the grossly inadequate fiscal year 2010 budget submission, we do not yet know how much the administration intends to commit to modernization and how it will be spent. It has been well advertised that there is a renewed emphasis by the administration on sustaining our stockpile and modernizing the infrastructure. Congress has long recognized the need for this extra attention, for example, calling for the Stockpile Management Program and the section 1251 plan requirement in the fiscal year 2010 National Defense Authorization Act. But after reviewing the fiscal year 2011 budget input, I am concerned the administration has not done all it should. The fiscal year 2011 budget weapons activities part of the budget of $7 billion is a 10-percent increase over fiscal year 2010, with a 26- percent increase in the category of Directed Stockpile Work. This looks good on paper. The question is the substance. The fiscal years 2007 through 2009 plans from NNSA predicted that the fiscal year 2011 budget should be, on average, $7 billion--exactly what the administration asked for this year. What we need to know is how much in addition to the $7 billion for NNSA weapon activities over the next 10 years. A cursory review of the numbers recommended in the section 1251 plan shows the proposed funding is, in fact, barely keeping up with inflation. In fiscal year 2010, Congress provided roughly $6.4 billion for the current nuclear weapons account at NNSA. If the fiscal year 2010 budget is assumed as a new 10-year baseline, that would be $64 billion of the $80 billion proposal for nuclear weapons activities at NNSA, assuming no increase for inflation or increased costs of modernization. If you assume a standard rate of inflation of 3 percent to cover cost-of-living adjustments in salaries and increased material costs using the fiscal year 2010 appropriations as the baseline, then holding that budget constant would require a total of $75.6 billion over the 10-year period. If a 2-year rate of inflation is used, then the increase is about $8 billion over the next 10 years. Unfortunately, we know the fiscal year 2010 budget is not a sustainable baseline. The Senate Energy and Water Appropriations Subcommittee noted in its committee report last year that: The committee does not believe this level of funding is adequate to support modernization of the complex including critical investment in infrastructure and scientific capabilities. So our stockpile is aging, refurbishments are behind schedule, the Cold War infrastructure is falling apart, and the critical science and technology skills that underwrite our nuclear deterrence are atrophied. But rather than seeing a new commitment to this problem, the budget request and the 1251 plan seem to be based on a plan--the fiscal year 2010 budget--that wasn't making much progress as it was. It appears to me this plan was based not so much on what is needed but what funding the administration was willing to make available. In this case, it seems to be what funding Secretary Gates could sacrifice from his budget because that is how the additional money for this year came about. Why was the administration only willing to find funding authority in the DOD budget, the one department of the Federal Government engaged in fighting two wars? Secretary Gates had to transfer money from his budget over to the Energy Department budget. As important as the amount of money available is the freedom to pursue all options available to ensure the safety, security, and reliability of our highly complex nuclear stockpile. The Nuclear Posture Review restricts options for modernizing existing warheads by stating: In any decision to proceed to engineering development for warhead LEPs-- That is, life extension projects-- the United States will give strong preference to options for refurbishment or reuse. Replacement of nuclear components would be undertaken only if critical Stockpile Management Program goals could not otherwise be met and if specifically authorized by the President and approved by Congress. The 1251 plan tries to deal with this overly restrictive limitation by stating: The Laboratory Directors will ensure that the full range of life extension program approaches, including refurbishment, reuse, and replacement of nuclear components are studied. But it still reiterates that there is a ``policy preference for refurbishment and reuse in decisions to proceed from study to engineering development.'' Why would our nuclear scientists spend time and limited resources and risk their careers studying the full range of options if, when they make their recommendations, the President requires that they prove the impossible; namely, that replacement must be the only choice? Why isn't the standard instead what is the best course of action? The Perry-Schlesinger Commission noted the importance of flexibility when it reported to Congress last May. It stated there are: . . . options along a spectrum . . . in between are various options to utilize existing components and design solutions while mixing in new components and solutions as needed. Different warheads may lend themselves to different solutions along this spectrum. The decision on which approach is best should be made on a case-by-case basis as the existing stockpile of warheads ages. The bipartisan commission of six Republicans and six Democrats determined that: So long as modernization proceeds within the framework of existing U.S. policy, it should encounter minimum political difficulty. Well, the NPR changes that policy, and the section 1251 plan reiterates the NPR language after initially suggesting scientists will be given complete latitude. I believe this will have a chilling effect on the scientists' work and that this issue must be resolved. Similarly, we have questions concerning the administration's commitment to maintaining and modernizing nuclear delivery systems. While the administration suggests in the Nuclear Posture Review and the 1251 plan that it will maintain a nuclear triad, there is no funding in that plan for follow-on strategic systems, other than a replacement for our aging nuclear ballistic missile submarines. In fact, the 1251 plan notes that the administration will not even make a decision regarding a next generation bomber and a follow-on ICBM until 2013 and 2015, respectively. Likewise, rather than commit to a new nuclear cruise missile, the administration instead announces that a study is being done to determine if it will be replaced. Finally, the 1251 plan is silent on funding needed to develop and deploy conventional prompt global strike capabilities which, according to the Nuclear Posture Review, are to play a larger role in our strategic posture. The notional nuclear force structure under New START suggested in the 1251 plan lacks sufficient detail. It calls for up to 420 ICBMs, up to 60 strategic bombers, and no more than 240 SLBMs. It would be helpful to know exactly how U.S. forces will be configured, how we might expect Russia to configure its nuclear forces, both strategical and tactical, and then have a net assessment to determine whether the United States is still capable of carrying out its deterrence missions, especially providing nuclear security guarantees to allies and partners. With regard to New START limitations and force structure, the New START treaty limits the number of deployed strategic delivery systems to 700. Since the United States today deploys approximately 800 delivery systems, this will require a reduction of some 180 ICBMs, SLBMs, and/or strategic bombers to reach the treaty limitations--more if we deploy conventional global strike missiles, since, by the terms of the treaty, these must be counted as nuclear as well. The Russians, on the other hand, are already below the 700 figure. So this is the first time that at least I am aware the United States will agree to launcher limitations that will require the United States to reduce its forces but require no reductions by Russia. It is fair to ask what the United States got for this concession. Moreover, because a bomber counts as only one delivery system and one warhead no matter how many bombs or cruise missiles are loaded on it, the Russians are able legally to field more than 1,150 warheads limited by the treaty. While this may appear to advantage both sides, I do not fear U.S. cheating--we would not--but the Russians could, and because of weak verification tools in the treaty, I am not sure we will know. This is another reason to await the NIE before making a decision on the treaty. Let me quote from the Heritage Foundation analysis on this point. It says: In fact, despite Obama administration claims to the contrary, New START's counting rules and apparent lapses will permit increases in Russian strategic force levels above the 1,700 to 2,200 deployed warhead limit of the Moscow Treaty. I am not going to quote the remainder of this analysis, but I would ask unanimous consent that the statement, as I submit it for the Record, contain the remainder of this analysis.

Mr. KYL. The bottom line is, there were concessions by the United States. The Russian conventions are essentially strictly based on their financial situation, not by any New START warhead ceilings. So what I think we should ask is why did we agree to it and what did we get in return. Additionally, what will the U.S. nuclear force structure look like after eliminating these 180 U.S. strategic delivery systems? I have already talked about it, but I wish to explain why this is an important requirement for Senators to consider before we vote on the treaty. The administration has provided some initial information as a basis for future planning. It could retain up to 420 ICBMs, up to 60 strategic bombers, and deploy no more than 240 SLBMs at any time. We will require further details about where these reductions will be made and how this force structure fares against our most likely prediction about how the Russians will design their nuclear forces. An issue of concern is that while the United States intends to deploy only single-warhead ICBMs under the administration's new NPR, the treaty appears to be driving the Russians to deploy multiple-warhead missiles for their ICBM force. Land-based multiple-warhead missiles have long been considered destabilizing because they place a premium on striking first for fear of losing a large proportion of one's warheads by a preemptive strike by the other side. For this reason, MIRVs were to be banned by the START II treaty that never entered into force. Now, 80 percent of Russia's ICBM force will be road mobile and MIRVed. In light of this, it is curious to hear the administration now argue that New Start will increase strategic stability. Assuming the U.S. nuclear force structure is survivable, the next question is whether it is sufficient for deterrence purposes-- especially the more difficult mission of extending nuclear guarantees to allies and partners. As I said, the New Start treaty limits deployed strategic delivery systems to 700. A September 2008 white paper by the Defense and Energy Departments suggests a force of approximately 900 delivery systems is necessary for deterrence purposes, and in congressional testimony last summer, Admiral Mullen and General Cartwright expressed concerns with force levels below 800. How, then, can 700 be the correct number? Again, Senators must see the analysis themselves to make a decision on this. I don't see how a mere assurance in an unclassified committee hearing can be sufficient on a matter like this. As to missile defense, despite being told consistently from the very beginning of negotiations that missile defense will be addressed only in the preamble of the treaty, we now discover that article V contains a direct restriction on U.S. missile defense activities--i.e. neither party can convert ICBM or SLBM launchers into launchers for missile defense interceptors. In fact, just prior to the treaty's public release, Under Secretary of State Ellen Tauscher said the following: ``But there is no limit or constraint on what the United States can do with its missile defense systems.'' Now, this begs two questions: 1, did Ms. Tauscher not know what was in the treaty her subordinates were negotiating; or 2, did whoever wrote Ms. Tauscher's talking points think Senators wouldn't notice an entire article of the treaty text? Some administration officials have tried to explain this away by saying that, since this administration has no current plans to do so, it's not a constraint. That stands the English language on its head. This concession to the Russian Federation will establish a dangerous precedent with respect to including missile defense limitations in future offensive arms control agreements. Why did the U.S. side feel it necessary to concede this point? What did we get in return? Again, this is why it is important to see the full negotiating record. When viewed together, the treaty's preamble, the Russian unilateral statement on missile defense, and remarks by senior Russian officials provide the potential for Russia to essentially blackmail the U.S. against increasing its missile defense capabilities by threatening to withdraw from the treaty. The preamble states that ``current strategic defensive arms do not undermine the viability and effectiveness of the strategic offensive arms of the parties.'' Does this suggest that moving beyond ``current'' systems could provide grounds for withdrawal? The Russians note in their unilateral statement that the treaty ``can operate and be viable only if the United States of America refrains from developing its missile defense capabilities quantitatively or qualitatively,'' and also link American missile defense capabilities to the treaty's withdrawal clause. Shouldn't we read this as an attempt to exert political pressure to forestall continued development and deployment of U.S. missile defenses? The preamble doesn't have to be legally binding to be influential. Even more disturbing is the administration's decision to limit U.S. missile defenses to be effective only against a ``limited attack,'' thus exempting Russian capabilities from the reach of our missile defenses. Since the U.S. unilateral statement makes quite clear that the administration intends to deploy only ``limited'' missile defenses to deal with ``limited attack,'' the administration has left itself no room to respond to strategic surprise or a disintegration of the current strategic relationship with key nuclear powers, let alone an accidental launch. Let me quote from the text of the U.S. unilateral statement: The United States missile defense systems would be employed to defend the United States against limited missile launches, and to defend its deployed forces, allies and partners against regional threats. The United States intends to continue improving and deploying its missile defense systems in order to defend itself against limited attack and as part of our collaborative approach to strengthening stability in key regions. Here is something else that's troubling. General Jones, in a May 12, 2010, letter to me wrote, ``Russian unilateral statement is both beyond the control of the Administration and not binding or limiting in any way on current or planned U.S. missile defense programs.'' I will repeat that because it is important: ``not binding or limiting in any way on current or planned U.S. missile defense programs.'' What about a program that is not current or planned? Our unilateral statement must lead one to ask whether the Russian statement was answered by the U.S. statement, in effect saying, ``you don't worry about our missile defense because we won't make it effective against you.'' What if a future administration decides to return to the concept of actually protecting America from any nuclear attack even from Russia? The Russians will have the right to rely on these statements for at least the ten years of the treaty's operation. These statements may become the new baseline in future arms control negotiations between the United States and the Russian Federation. Ronald Reagan enunciated the vision of U.S. missile defense, which I believe is as true today as it was in 1983: What if free people could live secure in the knowledge that their security did not rest upon the threat of instant U.S. retaliation to deter a Soviet attack, that we could intercept and destroy strategic ballistic missiles before they reached our own soil or that of our allies? But isn't it worth every investment necessary to free the world from the threat of nuclear war? We know it is.'' I am concerned that when Russian Foreign Minister Lavrov warned, on March 28, that ``the treaty and all the obligations it contains are valid only within the context of the levels which are now present in the sphere of strategic defensive systems,'' it means the Russians will threaten to pull out of START if we deploy additional ground-based interceptors in Alaska or if we deploy the SM-3 block IIB missile in Europe, as the administration promised. There is something fundamentally disturbing about entering into a treaty with the Russians when we have such a divergence in view over a substantial issue like missile defense. At the very least this likely sets the stage for misunderstanding and confrontation as the United States continues its missile defense activities, particularly in Europe. Remember, the goal of the treaty was supposed to be stability from a common understanding and agreement on core principles. Those who have rushed to embrace the treaty must confront this reality and the administration must be required to square the circle. On verification, Secretary Gates testified that this treaty provides ``a strong verification regime . . . which provides a firm basis for monitoring Russia's compliance with its treaty obligations.'' I certainly have a great deal respect for Secretary Gates, but I'm not sure how he can know that yet. Has he seen the NIE on the treaty? Or the State Department verifiability assessment? And, even if treaty noncompliance can be verified, what have we lost in intelligence as a result of the weakening of the verification compared to the START treaty? Independent assessments of the treaty suggest important new gaps in monitoring. For example, the treaty no longer requires on-the-ground, continuous monitoring of Russia's missile manufacturing facility and permits Russia to withhold telemetry of many of its missile tests, undermining our ability to know how many missiles are being produced and, perhaps, limiting our ability to understand what new capabilities are being developed. The administration has blamed the Bush administration for this, and I have asked for the evidence in letters to the Secretary of State, including a December 4, 2009, letter. So far the administration has been unwilling to substantiate this allegation-- which it could do by responding to my letters and inquiries on the matter. The ability to monitor compliance with the terms of the treaty is important, but as important is whether our intelligence community can monitor the status of Russian strategic nuclear forces. What new capabilities is Russia developing? Is Russia building and stockpiling additional missiles and warheads that could provide it a break-out capability? Will we be able to maintain confidence in our assessment of Russian forces throughout the 10-year period of the treaty? According to Secretary Gates, ``And I think what you are likely to hear from them [the Intelligence Community] is that they have high confidence in their ability to monitor this treaty until toward the end of the 10-year term, when their confidence level will go to moderate.'' What is the impact of a judgment like that when we know Russia is increasing its reliance on its nuclear forces, conducting war games involving simulating raids against NATO allies like Poland, and modernizing almost every element of its strategic and tactical nuclear forces? For example, Russia is, in fact, deploying a new multipurpose attack submarine that can launch long range cruise missiles with nuclear warheads against land targets at a range of 5,000 kilometers-- just barely missing the threshold to be considered a strategic weapon under the New START treaty. Of course, a tactical nuclear weapon has a strategic effect if it is detonated above a U.S. or allied city. We will need the intelligence community to consider these important factors before we can fully evaluate the treaty; I look forward to a thorough NIE that rigorously analyzes our ability to monitor Russian nuclear forces. And, I am sure the Intelligence Committee will hold numerous hearings to flesh out these issues. As to the impact the treaty has on U.S. and Russian nuclear force levels, especially regarding tactical nuclear weapons, the administration argues that New Start will ``increase'' or ``provide'' strategic stability, but has yet to explain why the 10-1 disparity in tactical nuclear weapons doesn't upset that strategic stability, especially at lower levels of strategic nuclear forces. As former Secretary of Defense James Schlesinger recently testified, ``the significance of tactical nuclear weapons rises steadily as strategic nuclear arms are reduced.'' The Strategic Posture Commission estimates Russia may have approximately 3,800 operational tactical nuclear warheads, and that the combination of new warhead designs and precision delivery systems ``opens up new possibilities for Russian efforts to threaten to use nuclear weapons to influence regional conflicts.'' Likewise, Under Secretary of Defense for Policy, Michele Flournoy, has observed that the Russians are ``actually increasing their reliance on nuclear weapons and the role of nuclear weapons in their strategy.'' There is a fine line--actually, no line at all except as to how they are delivered--between strategic and tactical weapons. If the Russians intend to use nuclear weapons to influence regional conflicts, then shouldn't we try to understand the impact of their numbers in the context of declining U.S. strategic nuclear weapons required by the treaty? In other words, what will be the effect of Russian tactical nuclear weapons on strategic stability and our ability to extend deterrence into various regions? We should understand this before agreeing with the administration's contention that this treaty increases stability. The administration's retort is that they understand the importance of dealing with the disparity in tactical nuclear weapons, but that we must first ratify New Start before getting to Russian tactical nuclear weapons in the next treaty. But what leverage will we have left? And why should we think a ``next treaty'' that further reduces our weapons will be in our rational interest? And if tactical weapons are as important as most seem to believe, why didn't we make them a priority in this treaty? Because the Russians didn't want to talk about them? Why was that enough to demur? How hard did we push? Again, this is why Senators need to see the negotiating record, and why they shouldn't make up their minds on the treaty until they do. BCC--Bilateral Consultative Commission One of the matters the administration will have to address before the Senate could consider ratification is the role of the Bilateral Consultative Commission in the treaty. As Ambassadors Edelman and Joseph observe in their May 10th National Review Online article: A preliminary reading of the Treaty Protocol suggests that the U.S. and Russian commissioners could reach secret agreement on changes to ensure the `viability and effectiveness' of the treaty. These changes could create additional limits on missile defense that would appear to be beyond the reach of the Senate's responsibility to advise and consent. Obviously, that is not acceptable. This matter will have to be thoroughly vetted during the hearings and presumably be dealt with in the resolution of ratification. While there may have been similar provisions in past treaties, the Senate should insist on a reasonable check on such an open-ended provision in the resolution of ratification. Now to the conventional prompt global strike or PGS. Although tactical nuclear weapons were not addressed in this treaty, the United States conceded to Russian demands to place limits on our conventional prompt global strike capabilities by counting conventionally armed strategic ballistic missiles under the limits for delivery systems. At the very least, this will require a one-for-one reduction in U.S.- deployed nuclear weapons for each conventional ICBM it intends to deploy. This is yet another reason Senators need to see the force posture before they can make up their minds on the treaty. The treaty also sets the stage for further limitations on U.S. conventional strike capabilities in the preamble by noting that the parties are ``mindful of the impact of conventionally armed ICBMs and SLBMs on strategic stability.'' Does any Senator imagine the Russians will not raise objections when the United States begins the serious development of prompt global strike capabilities, as called for by the Nuclear Posture Review? Moreover, the administration must be candid when it testifies about issues such as PGS missile defense. It cannot continue to state that the treaty does not limit PGS or missile defenses when it clearly does. In conclusion, Secretary Gates and Secretary Clinton have predicated their support for the treaty on their answer to the question: Are we better off with an agreement or without it? They suggest that without the agreement, we would lack the ability to limit and monitor Russian strategic forces. My response is twofold: First, the existing 2002 Moscow Treaty already limits Russian warheads. True, the Moscow Treaty relied on the now-expired START treaty's verification procedures, but these could have been extended by mutual consent. The Russians refused or the administration did not bother to ask. We will not know until the administration shares the negotiating record with us. Second, I believe the better question is, Are we better off with this treaty or a treaty that did not include any references to missile defense or prompt global strike and which did contain limitations on Russian tactical nuclear weapons? These are issues for Senators to consider when they debate the resolution of ratification and amendments to it, whether they be reservations or conditions or otherwise. In her opening statement at the May 18 Foreign Relations Committee hearing on New START, Secretary Clinton asserted that ``the choice before us is between this treaty and no treaty governing our nuclear security relationship with Russia.'' This assertion is obviously a false choice. It reflects sort of an ``our way or the highway'' approach, completely inconsistent with the responsibilities of the Senate. Since the administration did not consult the Senate for its advice before making its negotiating concessions, it should not now argue that the Senate has only the choice of voting for the treaty that we cannot amend and therefore must vote yes and that it would be impossible to negotiate another agreement. After all, isn't that what both sides did in walking away from the START II agreement? The Senate is not a rubberstamp. We have the opportunity and responsibility to fully understand this treaty and understand whether it furthers the security of the American people. And we must consider it in the context of other considerations such as the nuclear modernization that goes hand-in-hand with consideration of the treaty. The administration will have to find a way, for example, to ensure the necessary funding for modernization before the Senate votes on the treaty. Sergei Karagonov, chairman of the Russian Council on Defense and Foreign Policy, summarized the Russian view of the treaty saying: In the course of the negotiations, Russia reached almost all of the objectives it could possibly set. I think that is a pretty good metric by which to evaluate the outcome of the treaty. Are we able to say the same thing for the United States? That is a question which will need to be answered affirmatively for the Senate to ratify the treaty. We have just begun the process of evaluation and potentially ratification. I urge all of my colleagues to refrain from judgments before our process is complete. I do not doubt there are arguments in support of the treaty. The recitation of my concerns today should be taken as just that--concerns--hopefully to make the point that there are reasons for us to be careful and thoughtful and not jump to conclusions. I look forward to an exercise worthy of the Senate in the consideration of this important submission.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Georgia (Mr. Chambliss), the Senator from Oklahoma (Mr. Coburn), the Senator from Georgia (Mr. Isakson) and the Senator from Mississippi (Mr. Wicker).

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Georgia (Mr. Chambliss), the Senator from Oklahoma (Mr. Coburn), the Senator from Georgia (Mr. Isakson), and the Senator from Mississippi (Mr. Wicker).

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Georgia (Mr. Chambliss), the Senator from Oklahoma (Mr. Coburn), the Senator from Georgia (Mr. Isakson) and the Senator from Mississippi (Mr. Wicker).

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Georgia (Mr. Chambliss), the Senator from Oklahoma (Mr. Coburn), the Senator from Georgia (Mr. Isakson), and the Senator from Mississippi (Mr. Wicker).

Mr. KYL

Mr. KYL. Madam President, in the final hours of debate on this bill, I think we should be asking ourselves why we started the whole exercise in the first place. What is the purpose of financial regulatory reform? I wish to address that for a moment this morning. Presumably, we all agree the purpose should have been to tackle the problems that led to the financial crisis in the first place. That means serious reform must address root causes: most prominently, too big to fail--ending that and reining in the two government-sponsored enterprises, Fannie Mae and Freddie Mac, that had a lot to do with causing the problem in the first place. Amazingly, despite its size-- and this is the legislation--and all of the hype that has attended it, the bill before us fails to address these root causes. Moreover, even though Main Street didn't cause the problem, the bill is so extensive in its regulatory reach, it creates new burdens on Main Street while continuing the recent pattern--and one, by the way, Americans are very fed up with--of using every crisis as an excuse to involve government in almost every sector and every aspect of American life. Republicans had hoped that once the bill came to the Senate, improvements would be made and the final product would be less partisan. We offered amendments to improve the bill, but almost all of these have been defeated. Along the way, Democratic amendments have been adopted that actually make the bill worse. I hoped the bill would be amended to actually end taxpayer-financed bailouts and the concept that companies can be too big to fail and that it would protect small businesses from the regulatory burdens imposed by the bill and protect the rights of privacy for people's financial information. But that didn't happen, so we are left with a bill that enshrines into law failed policies of the past, imposes a massive new bureaucracy on small businesses that had nothing to do with creating the financial crisis, and threatens jobs and our economic growth. Today, let me address these three problems in a bit more detail-- first, too big to fail. The very first amendment offered by the majority purported to end too big to fail. While that sounds good, the amendment that passed won't accomplish the goal. The amendment has the effect only of declaring the intent of Congress. It does not actually prohibit taxpayer funds from being used to assist banks, and that is why I voted against it. It expresses a sentiment, but it is not actually operative. As I will discuss, provisions remain in this bill that enshrine taxpayer bailouts forever, even after the removal of the $50 billion bailout fund. For instance, section 113 establishes a Financial Stability Oversight Council. This section would give the Federal Reserve the authority to prop up any nonbank financial company the council deems to be a potential threat to systemic stability. The council would designate certain firms as ``systematically significant.'' Market participants would obviously interpret this to mean too big to fail. Therefore, the designations would increase moral hazard and perpetuate the very problem we are trying to fix. So a new government board based in Washington would decide which institutions get special treatment, giving unaccountable government officials tremendous authority to pick winners and losers, resulting in a competitive advantage for the winners. What determines whether a nonbank financial institution is a threat to stability? Among other possible considerations, ``any other factors that the Council deems appropriate,'' according to the bill. Such broad authority would allow the council to protect and promote or to hamper firms based on whatever it deems appropriate--``any other factors.'' Section 1155 of the bill, entitled ``Emergency Financial Stabilization,'' also guarantees bailouts. Here, the FDIC would be allowed to create a new program of unlimited size to guarantee the obligations of depositories and holding companies with depositories. Since there is no requirement that a company that receives the guarantees and defaults on its obligations be taken into bankruptcy, the FDIC and Treasury could prop up whatever company they choose. So this bill does not end too big to fail. If we had truly wanted to do that, we would have passed the Sessions amendment. This amendment would have struck the entire liquidation authority section from the bill and replaced it with a bankruptcy process for nonbank financial institutions. It also would have prohibited bailout authority and made needed adjustments so that a few provisions of the U.S. Bankruptcy Code to provide necessary flexibility to deal with the failure of large financial firms, such as Lehman Brothers, would work. In other words, it would have ended too big to fail. The second area I mentioned was the government-sponsored enterprises. No debate on too big to fail would be complete without a discussion of Fannie Mae and Freddie Mac. These are the two government-sponsored enterprises given the authority to acquire mortgages. It seems to me almost unconscionable that this bill does not even attempt any reform of these two institutions given the fact they were a large part of the creation of the problem. And it is not because Republicans haven't tried. We have. The reckless behavior of these two institutions--by the way, institutions that have come to epitomize too big to fail--has surged through the entire commercial banking sector and our economy as a whole. Let's recall how central these two government-sponsored enterprises were to the housing bubble and the ensuing collapse of that bubble. For years, Fannie and Freddie backed mortgages that were issued to too many people who could not really afford them. The two GSEs reaped enormous profits, while recklessly taking advantage of the government's intrinsic guarantee of purchasing trillions of dollars' worth of these bad mortgages, including all those made to risky subprime borrowers. This is the model that allowed Fannie and Freddie to inflate the subprime mortgage bubble. But when the housing market collapsed, the two GSEs were left with billions of dollars of bad debt. And guess who is on the hook for those billions. The American taxpayers. These two institutions had their own dedicated regulator--the Office of Federal Housing Enterprise Oversight, or OFHEO. Republicans tried to give OFHEO more authority, Democrats objected, and so they allowed the situation to spiral out of control. The easy credit fueled rapidly rising homes prices. As prices rose, so, too, did the demand for even larger mortgages. So Fannie and Freddie looked for ways to make even more mortgage credit available to borrowers with a questionable ability to repay. By 2008, the two GSEs had nearly $5 trillion in mortgages and mortgage-backed securities. They were overleveraged and too big to fail. It was a textbook example of moral hazard on a massive scale. I warned about it repeatedly. Today, they hold a combined $8.1 trillion of total outstanding debt. Because the Federal Government has decided to cover this debt--by the way, even though there has never been a vote in the Congress to authorize this--both of these entities have recently asked taxpayers for billions more to cover their rapidly mounting losses. Recently, Freddie Mac announced it will need an additional taxpayer bailout of $10.6 billion, and that is after it lost $6.7 billion during the first quarter of this year. In 10 of the last 11 quarters, Freddie Mac has lost a total of $82 billion, which is twice the amount it earned over the previous 30 years. Fannie, too, just recently asked taxpayers for more money--$8.4 billion--to cover its soaring losses. Since the Federal takeover of Fannie and Freddie, taxpayers have lost $145 billion propping them up--just two companies. And since the Treasury Secretary recently lifted the bailout cap, taxpayers are responsible for unlimited losses at these institutions. The Associated Press summed up the situation succinctly. It wrote last week: The rescue of Fannie Mae and sister company Freddie Mac is turning out to be one of the most expensive after effects of the financial meltdown. So why not embrace real reform and relieve the taxpayers? We know some of our friends on the other side believe we have an obligation to trim Fannie's and Freddie's sails. Republicans offered three amendments, all of which attracted bipartisan support--one each from Senators McCain, Crapo and Ensign--that would have done exactly that. But they were all rejected by the majority. The alternative side-by-side amendment that was adopted instead is meaningless. Rather than rein in Fannie and Freddie, this amendment really established that Congress will commission a study on conservatorship of the two GSEs from Treasury Secretary Timothy Geithner. As the Wall Street Journal asked in an editorial, if a study is so key to dealing with the GSEs, what has Mr. Geithner been doing in the last 17 months since the crisis? Let's also remember that it was Mr. Geithner's Treasury Department that lifted the $400 billion GSA bailout cap last Christmas Eve. Let's be absolutely clear: Every day Fannie and Freddie remain in their current form is a day U.S. taxpayers are subsidizing their activities. This bill does nothing to change the status quo, and I think taxpayers deserve better. The third area I wanted to mention is the so-called consumer protection and its effect on small businesses--this Bureau of Consumer Financial Protection. Well, small businesses across my home State of Arizona and, indeed, across the country are very worried about the intrusive new bureaucracy here intended for consumer protection. Of course, all of us support consumer protection. I don't know of anybody who doesn't. The question is how you do it and to whom it applies. We create a lot more cost to consumers if we make the regulation so expensive and inefficient that consumers actually wind up paying more money than they would have otherwise. That is what has happened with the credit card legislation we previously passed, and it could happen with this legislation as well, thanks to a newly created Bureau of Consumer Financial Protection. The bill establishes new restrictions on credit through so-called consumer protection provisions by limiting or reconfiguring credit options that are currently available to us. The bill gives the new bureau a budget of up to $650 million--an amount that is more than double what the FTC has requested for its economy-wide consumer protection activities. This money is to be spent as the director of the BCFP wishes, with no oversight or veto authority by Congress or the administration. Moving regulatory authority for consumer protection to a new bureau with broad powers would add to an already complex layer of regulation these businesses are forced to navigate, creating uncertainty that would likely make it more difficult to comply with existing regulations. My staff and I regularly hear from constituents who are trying to find ways to pay off their outstanding debts. I am concerned that duplicative regulation has the potential to have the unintended consequence of making it more difficult for individuals and families to manage their debts. Moreover, the proposed consumer protections reach beyond credit cards, restricting the availability of all forms of credit. These reductions in credit also mean declines in job creation since many small business startups use things such as home equity debt and sometimes credit cards as their sources of funding. Obviously, this poses a serious threat to our economy. A recent New York Post op-ed by Mark Calabria stated: New restrictions on credit are likely to cost our economy tens of thousands of jobs a year. Of course, no one intends this result. No one wants to raise costs on small businesses. But that is the inevitable result of a policy that is written too broadly. That is one reason the Chamber of Commerce, for example, opposes this bill. Some of my colleagues have suggested that the Bureau of Consumer Financial Protection would be significantly different from the Consumer Financial Protection Agency that was written into the House bill that passed last year. Well, I respectfully disagree. While the new bureau would not be officially independent, it would effectively function as an independent, stand-alone agency with rule-writing powers and enforcement authority; whereas, the Consumer Financial Protection Agency would be responsible for its own financing, this Bureau of Consumer Financial Protection would enjoy an automatic funding stream from the Federal Reserve. Given the close similarities between the two proposed consumer units, it is constructive to consult a study released last year by economists David Evans and Joshua Wright. After analyzing the Consumer Financial Protection Agency Act, they concluded it would ``most likely result in a significant reduction in the availability of credit to consumers.'' ``A significant reduction in the availability of credit.'' Of course, that is not what the authors intend, but that would be the probable result. In my view, the potentially serious costs of this Consumer Financial Protection Bureau do not justify its purported benefits. We all want to shield consumers from real abuses and exploitation, but this is not the right way to do it. As the National Review recently editorialized, ``To the extent that existing consumer safeguards need strengthening, the task can be accomplished without launching a massive new bureaucracy that would negatively affect credit access and economic growth.'' In conclusion, I hope my colleagues will ask themselves this question: Why is it that the CEOs of large companies such as Goldman Sachs and Citigroup favor this bill? The reason is simple: The legislation would entrench their privileged status. It would institutionalize the idea that certain big financial firms deserve preferential treatment by Federal regulators. These firms would be insulated from the negative effects of the new consumer protection bureaucracy. However, that bureaucracy would severely diminish credit access for small businesses and middle- class Americans. What we have before us is a bill that is supported by Wall Street but opposed by the Chamber of Commerce, the Business Roundtable, and many others on Main Street. For all these reasons that I have discussed and others, despite my strong desire to enact prudent financial reform, I cannot support this legislation. It does not effectively take on the fundamental problems that we all agree needed to be addressed. I suggest the absence of a quorum.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the text of my remarks today to the National Policy Conference of The Nixon Center and The Richard Nixon Foundation be printed in the Record.

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Ohio (Mr. Voinovich).

Mr. KYL. I ask for the yeas and nays.

Mr. KYL. The following Senator is necessarily absent: the Senator from Ohio (Mr. Voinovich).

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Alaska (Ms. Murkowski). Further, if present and voting, the Senator from Alaska (Ms. Murkowski) would have voted ``yea.''

Mr. KYL. The following Senator is necessarily absent: the Senator from Alaska (Ms. Murkowski). Further, if present and voting, the Senator from Alaska (Ms. Murkowski) would have voted ``yea.''

Mr. KYL

Mr. KYL. Mr. President I, too, would like to address the Supreme Court nominee. I associate myself fully with the remarks of Senator McConnell, which raise an important point for us to consider. I will correct the record in a couple of situations because I think, as the debate unfolds, it is important for us to base our decisions on the same set of facts. These are not going to be particularly newsmaking or big surprises, but I think the record should be corrected. I know our majority leader, for example, misspoke the other day in commenting about Justice Sandra Day O'Connor because there is some similarity--she being the first woman ever appointed to the Supreme Court. I wanted to make sure the record reflected the actual situation with respect to Justice O'Connor. Leader Reid, I totally agreed with when he described her as ``one of my favorite Court Justices.'' He said it is ``not because she is a Republican but because she was a good judge.'' I subscribe to that as well. He said: She had run for public office. She served in the legislature in Arizona. That is why she could identify with many problems created by us legislators, and she could work her way through that. For the record, I wanted to indicate her experience on the bench as a judge, since it is not the case that she did not have prior judicial experience when nominated to the Supreme Court. She was actually appointed to the bench by our Democratic Governor at the time, Bruce Babbitt. She was on the court of appeals and on the superior court bench before that. She served on the Maricopa County Superior Court bench from 1975 to 1979, and in 1979 Governor Babbitt appointed her to serve on the Arizona Court of Appeals. So she had extensive experience, from 1975 through 1981, as a judge, including in an appellate capacity. Prior to that time, as Leader Reid noted, she served in the Arizona State Legislature. In fact, she was the majority leader. She had an extensive legal career before that. She was a deputy county attorney. She was a civilian attorney. She was in the private practice of law. She was an assistant attorney general. Therefore, she had a very varied and rich experience both as a lawyer practicing law in regular situations in both criminal and civil context, as well as a trial court judge, which is great experience, I believe, and as an appellate court judge. In many respects, it is almost a perfect resume for someone to demonstrate broad experience and who could understand what cases are all about when they come from Main Street, as opposed to some of the more high-profile cases that tend to come before the U.S. Supreme Court. By every measure, I think anybody would agree that her tenure on the Supreme Court reflected those values and the experience that she had when she came to the Court. As I said, I know the majority leader simply misspoke when he suggested that she didn't have judicial experience. I did think it important to make that point. Second point: There was a statement made on TV yesterday by some folks who were comparing Elena Kagan and Chief Justice John Roberts; in effect, that John Roberts only had 2 years on the appellate court, so they are pretty similar. In two respects that is not correct. First, spending a couple a years on the court of appeals for the circuit court is extensive and important experience. It at least gave us an idea of how he approached judging. I think almost everybody in the Senate who voted on his confirmation understood that whatever his personal views were, he could clearly leave them behind and decide cases, as he referred to it, ``like an umpire calls the balls and strikes.'' That is one of the reasons he was overwhelmingly confirmed. I also recall that Justice Roberts' prior legal experience represented numerous arguments before the courts of appeals and the U.S. Supreme Court. At the time of his confirmation, he had probably had more U.S. Supreme Court arguments than any other lawyer. So this was a lawyer experienced in appellate work and U.S. Supreme Court work. In contrast--and this is not to take away from Ms. Kagan--the truth is, I don't think she ever tried a case or argued a case to an appellate court. She certainly hadn't argued before the Supreme Court until about 6 months ago in her capacity as Solicitor General. She has other positions in her background. She has been a law school teacher and a dean of a law school. But I submit that is hardly comparable to the litigation experience and, particularly, the appellate experience John Roberts had. All I am suggesting is, when we make these comparisons to other people, we need to be accurate about it. It is taking away nothing from Elena Kagan, but she did not have the experience of Sandra Day O'Connor or John Roberts. That is something we have to deal with--something lacking in her record. One other thing--and this is personal to me because my views were mischaracterized. I hope this will be seen as a favorable comment toward Elena Kagan. It was reported today by Al Hunt that I thought Elena Kagan was too young for the Supreme Court. No, I don't, and I never said that. He was wrong when he reported that. I said she was relatively young for an appointment to the Supreme Court, and that is true. At this point, I think she is 49. She would be 50 if she is confirmed. That is a fine age to be on the U.S. Supreme Court. My point was, that means, assuming her health is good--and I believe it is--she could have many decades on the Court. That is all the more reason it is important that we know her approach to judging. My only question about her judging has been whether she would leave her personal views behind as she approaches the decisions in cases that present two conflicting sides in adjudicating their dispute before the Court. It is not hard, when somebody has been an appellate court judge for years, to see how they approach judging and whether they can leave any of their personal views behind them. Most judges can, and that is a great thing about our system. Occasionally, we find a judge who has a particular conservative or liberal bent, and it is pretty clear they have a hard time leaving their political views behind and that they tend to want to figure out how they would like a case to come out and then rationalize a way for it to come out that way. Any good lawyer or judge can probably find an argument to support a position. But that is not the way judging should occur. My concern expressed about Elena Kagan is that there are a couple of things in her background that suggest that she might have a hard time leaving her political views behind and approaching cases, as Chief Justice Roberts said, as ``an umpire would call balls and strikes in a game.'' Remember, he was asked whether he would favor the little guy in a dispute or the big guy. He said if the law was on the little guy's side, he would favor the little guy but, if the law was on the big guy's side, he would favor the big guy. Why is that important? We all know Lady Justice has on a blindfold, and there is a reason for that. The oath of office of a judge and our tradition in this country is for a judge to approach a case not based on how he wants that case to come out in his heart of hearts, not how he would write the law if he were a legislator but, rather, how he has to apply the law to the facts of that particular case. Occasionally, a court will even say we do not necessarily like the way this case has to come out, and we invite the legislature to change the law. In fact, the Supreme Court did that in a bill which I sponsored recently. I regretted the way the case came out. I do not think the Court had to rule the way it did. But eight of the nine Justices believed that Congress had gone too far in prohibiting a certain kind of film-making activity called crush videos where usually a woman with high-heeled shoes is shown crushing a small animal to death. That did not seem to me to be free speech, and it is something Congress could prohibit. But the Supreme Court disagreed. Eight of the nine Justices said: No, even though we do not necessarily like the way this case came out because we abhor that kind of thing, it is our view that the first amendment has to allow that kind of ``speech.'' Again, I disagree that it is speech, but I admire the Justices, both liberal and conservative, who decided they have to apply the law even though the result was not something they liked, and they invited the Congress to fix the law, giving us a little bit of instruction as to how we can do that. I am working with colleagues in the House of Representatives to restructure the law so we can pass it again, overwhelmingly I am sure, and this time get it right within the first amendment because I do not, obviously, want to violate the first amendment. The point here is that Justices can rule in ways that force them to make a decision even though they do not like the way the case comes out. Then the legislature, if it involves a law we have passed, can fix it. That is the way our system is supposed to work. Rather than--and I much prefer that even though, in effect, I lost the case. I would much rather that than the Justices say: We think these crush videos are terrible, and even though the first amendment probably protects it, we are going to try to craft an argument where we can declare this law valid because from a public policy standpoint, we think that is a better result. I am pleased they ruled against my bill by saying: No, we cannot do that. We have to adhere to the law, as we read it. What I am going to be looking for in Elena Kagan is a judge who, despite her political views--and she has been candid about what they are and others have been candid as to what they are. One of her Harvard colleagues said her heart beats on the left. OK, I do not expect President Obama to appoint somebody whose heart beats on the right as mine does. He is going to appoint someone with his more liberal political views, and that is fine. The question is: Can she then approach cases the same way the judges did in the Supreme Court case I just described where even though they did not like the result, they felt they had to rule that way in order to remain consistent with their view of the first amendment. There have been a couple of things in which her personal view clearly affected her judgment as, in this case, the dean of the Harvard Law School. The one case everybody is familiar with is she disagreed with the congressional policy on don't ask, don't tell. But instead of having a policy that said President Clinton, who signed the bill, was unwelcome on the Harvard campus or the Senators and Representatives who had passed the bill--by the way, it was a Democratic House and Senate-- that they were not welcome on the campus, she wrote at the time extensively that this was a discriminatory policy of the military and that, therefore, the military would not be allowed on campus to recruit, as were all other businesses. Eventually, she had to change her position because the Solomon amendment said the university would not get any Federal funding, and they got about 15 percent of their funding from the Federal Government. They finally, after about a year, went back to the policy of allowing military recruiters on campus. In my view, she not only mischaracterized the situation by calling it the military's discriminatory policy, when the military is obviously simply following the orders of their Commander in Chief, President Clinton, and the law passed by the Congress, but also she discriminated by not criticizing or denying entry onto the campus the people who had passed and signed the law into effect but instead discriminated against the military who at the time was fighting a war. That represents a misjudgment on her part based on, obviously, her personal convictions. It interfered with the job she was supposed to be doing at the time. Would she apply that same kind of rationale when she sits on the U.S. Supreme Court? She obviously has strong personal views about this issue. How will she apply those personal views in cases of, let's say, ``the don't ask, don't tell policy that may come before her or some other policy that she believed discriminated against gays or homosexuals. She will have to somehow find a way to demonstrate to us that she will not allow those personal convictions to color her judgment on the Court. It might be kind of hard, given it did color her judgment in this previous situation. More recently, she wrote to Members of the Senate deeply critical of a bill Senator Lindsey Graham and I had introduced and was eventually passed by the Senate and signed into law that provided a mechanism for dealing with the terrorists at Guantanamo Bay. We defined ``military combatants'' in this legislation. We provided for a determination of their status, for a review of that determination of status, by a direct appeal to the District of Columbia Circuit Court of Appeals. Nothing like that had ever been done, where after determination of status as an enemy combatant, those people would be able to go directly to a Federal court--and not just any Federal court, the DC Circuit Court of Appeals, which is one step below the Supreme Court--to have that determination reviewed. That was not sufficient for her. She said: No, this was discriminatory; that they had to have a right to appeal to other Federal courts any sentencing or determination of guilt, if they stood trial in military commissions. That has never been the law. The Supreme Court has never said that is the law. Yet she compared what we did in that bill to the discriminatory and unlawful actions of a dictator. I do not like to be called or compared to a dictator, and I can assure my colleagues Lindsey Graham, my colleague who was primarily responsible for drafting that legislation, very much had in mind the best way to deal with this situation from a legal standpoint, as well as to protect American citizens. He was not trying to enact policies similar to dictators'. In addition to the language being quite injudicious, it seems to me it raises questions about whether if these kinds of questions were posed to her in the future she could lay aside what are obviously her strong personal convictions about this issue. There are bound to be cases involving enemy combatants and others in this war on terror that will continue to come to the U.S. Supreme Court. Will she recuse herself from these cases because she has expressed strong personal views? That would seem to me to be appropriate, unless she could somehow demonstrate she can put all that behind her and decide these cases strictly on the law, irrespective of her personal prejudices. I hope I am not perceived by these comments to have made a judgment about Elena Kagan. When I voted for her confirmation as Solicitor General, I said I thought she was well educated, very intelligent, very personable, and I wanted her to have a chance to do the job as Solicitor General. I had hoped she would remain in the position for a little bit longer than a year before being nominated for a position as prestigious as the U.S. Supreme Court. Nonetheless, I am firmly committed to examining her record as thoroughly as possible and then making a judgment based on that entire record. Despite the fact I have raised two questions, I do not want that to be suggestive of any conclusion I have reached because I have not reached a conclusion. In fact, I am a little bit critical of my colleagues who have immediately reached a conclusion without even examining the record. There is something like 160,000 pages of documents in the Clinton Library relative to her record as a policy adviser in the Clinton White House. Obviously, some of her views will be reflected in those documents and I think it is important to see what they say. It may well be that she represents a very tempered thought that is pragmatic and not overly ideological and which appears to suggest that in the position she held, she could lay aside her personal views and give good advice. It is quite possible that is what those records will reflect. It may also reflect something different. Until I have the benefit of reviewing those documents and then talking with her personally and hearing her testify, it seems to me a bit premature to be making a judgment about whether she should be confirmed. Again, I wanted the opportunity to reassure all of my colleagues that Sandra Day O'Connor, the first woman appointed to the Supreme Court, did, indeed, have a good judicial experience on the bench prior to her nomination. That is not an absolute requirement, in my view, because her colleague from Arizona on the Court for a while, Chief Justice Rehnquist, had not had judicial experience. Every other nominee in the last 40 years has. He had not. Nonetheless, he had extensive experience of over 20 years in law practice, both in the private law practice as well as the Department of Justice. So he, too, had a very long record from which one could judge whether his personal views could be set aside in judging cases. That, at the end of the day, is the test that should apply to all nominees, should apply to Elena Kagan. I am sure my colleagues and I will have ample time to review the report, reflect on it, discuss it with her, and then come to our judgments as to whether she satisfies that judgment. I suggest the absence of a quorum.

Mr. KYL

Mr. KYL. Mr. President, as far as I know, there is no one else on our side wishing to speak; therefore, we can yield back time of the minority.

Mr. KYL. The following Senator is necessarily absent: the Senator from Texas (Mrs. Hutchison).

Mr. KYL. The following Senator is necessarily absent: the Senator from Texas (Mrs. Hutchison).

Mr. KYL

Mr. KYL. I ask for the yeas and nays.