Jack Reed

Mr. REED

Mr. REED. Reclaiming my time, I thank the Senator. This amendment has been shared with the majority. It has been reviewed by the majority. We are not attempting to surprise anyone with this amendment. It deals with child safety locks. In fact, it is an amendment that was offered to the bill last year and passed overwhelmingly. It is my intent to provide opportunity to discuss issues with respect to gun legislation and to present them to the Senate. Again, I would note when the majority leader requested unanimous consent to lay aside one of his amendments to offer another amendment, no one on my side objected because in fact we thought we were proceeding in good faith, that we shared amendments if we had an opportunity to look at the amendments beforehand, that we could proceed in an orderly and reasonable fashion. But I am a bit shocked. This amendment has been with the majority for the last, I would suggest, 30 or 40 minutes. It is an amendment that was presented in substance before to the floor. So I am a little bit surprised about the Senator's reaction.

Mr. REED. I would be happy to yield.

Mr. REED. Reclaiming my time, again, I appreciate the Senator's comments with respect to the amendment, but once again I think we provided you the opportunity to look at the amendment. There are several issues here. The first issue is whether you think it would be appropriate to support and vote for it, which presumptively comes after debate. But the first issue is allowing us to offer the amendment. You might very well object to the substance of the amendment. You might very well urge our colleagues to reject it. I respect that. But the right to deny the amendment since you object goes against what the majority leader said in how we conduct this debate. I will make a few comments now in general and I hope perhaps during the course of my comments the review of the amendment would allow us to formally offer it. Again, there have been some comments about these junk lawsuits. These comments might have some resonance in this Chamber, but I doubt if we were talking to the widow of Conrad Johnson we would have the temerity to say the suit she filed on behalf of the family was a junk lawsuit. Or if you had a working man, someone sitting in his bus seat in the early morning having a cup of coffee and reading the paper--and when I read about that, it reminded me of what my father did every day as a school custodian. He would get up in the morning, read the paper, have a cup of coffee either at the school or someplace else, in the kitchen--and then suddenly his life was ended by snipers, leaving a wife and children. Then they find after the tragic incident the weapon was obtained by the snipers because, in my view, of the incontrovertible evidence of gross negligence, 230 or more weapons misplaced by the dealer, not realizing that a teenage boy walked into his gun shop and took a 3-foot assault weapon off the counter and walked out. That is not negligence? Oh, and, by the way, because we were able to stop this legislation last year and because in that case the defendant recognized that if they went to a jury of 12 Americans sitting and deciding whether they were responsible in their actions, they settled. That is not a junk lawsuit. Is it a junk lawsuit when two police officers are called to a violent scene and find themselves in a crossfire, find themselves critically injured, brought to a hospital, given their last rites, and then it is discovered the weapon that harmed them was purchased by a straw purchaser? Or that an individual walked in with a female companion, pointed out the guns, bought 12 of them at one time for cash, had her buy them because he could not pass a weapons background check, jumped in a car, took off--in fact, so obviously that the dealer called the ATF and said I took the money, gave them guns, but watch out. Negligence. Both those lawsuits would have been stopped by this legislation. Those are not frivolous suits. Those are examples of people being hurt, police officers, bus drivers, through the negligence of gun dealers and gun manufacturers. There is this constant refrain, the law is clear, the law is clear, we can't blame someone else for criminal activities, when in fact the law is quite clear on this point. I mentioned it before. What is the law of the United States? Well, in terms of tort law these laws are summarized, updated constantly in what is known as restatement. Basically it is a catalog of different positions of the law. Everyone knows it. Everyone coming to the floor, having passed a bar in one State of this country, knows the restatement basically says what is the settled law, the settled law with respect to criminal activity. I will read it again. Section 449 of the Restatement Second of Torts: If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act, whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. What does that mean? It means you have a duty to the public to take certain steps, and if you don't take those steps, even if in the chain of causation there is a criminal act by another party, you are still liable--not for that criminal act, you are still liable because you failed in your duty. What this bill does is--this great talk about responsibility--it says everyone is responsible except the gun industry. Automobile manufacturers are responsible. In fact, when we get in our vehicles and drive home tonight, we are all going to benefit because years ago under the laws of tort and negligence, automobile companies were forced to improve the safety of their vehicles for the protection of the public. Now the logic that, oh, they can't be held liable for this because no one intends to crash the car, well, that is right; no one intends to crash an automobile, but if the design of the automobile is defective, if there are safety precautions that could be taken, those have to be adopted because they have a duty to the public to provide a safe product, to avoid obvious dangers. This is a situation in which we have the obligation to take steps. So this notion about criminal intervening activities is not the law. That is not what the black letter law of this country says. The idea that manufacturers are not subject to the common obligation or duty to provide safe products, even if they are not required by statute, that is not the law either. There is also a deliberate attempt to confuse two very different principles. We have criminal laws, we have regulations, we have statutes that require certain behavior. They define a range of activities that are impermissible. What this bill says is, if you violate a law, one of those aspects of impermissible behavior, yes, maybe you can sue a gun manufacturer. But there is a whole other range of activities--accidents, unreasonable behaviors--that are not defined by law. They are not the criminal, but they do involve opportunities under civil litigation to go to court and say this person acted unreasonably. They did not technically violate a statute. They acted unreasonably. This statute essentially says, by and large, you can show they violated a very narrowly drawn legislative enactment or statute--they failed to fill out a record, et cetera--yes, maybe you can go to court. What about all the cases we have talked about, the cases of the straw purchaser where weapons were sold and, obviously, to the casual observer, in a very peculiar way. Why didn't that fellow, I believe, in South Carolina, who is buying the pistols that eventually wounded officers Lamongello and McGuire, why didn't he offer his name? He obviously was picking out the weapon. Why did they buy 12 at one time? There is no law against buying 12 weapons at one time. Isn't it curious that would happen? Again, we have a situation where this legislation has been carefully worked out to stop these lawsuits. Not the frivolous lawsuits, all lawsuits except under very narrow circumstances. And those circumstances do not seem to apply to the cases that have been filed. The exceptions would not have kept alive a suit by Officers Lamongello and McGuire or by the families of the victims of the Washington, DC, snipers or in the situation of Danny Guzman and Kahr Arms. That is more than coincidental. It is very deliberate. Again, as I mentioned before, this legislation can't be the panacea for the gun industry, the one touted by the NRA, as we have to have this on one hand, and then allow all the good suits there, the really good suits, the ones, in fact, that have been filed. And it is not. It is designed to stop practically every attempt to be compensated for the negligence of a manufacturer, a gun dealer, or a trade association. All of the particular aspects of the bill provide some window dressing--it sounds good, section XYZ of the United States Code--but when it doesn't work in practice, that is all it is. This explosion of suits, where are they? A small number of suits filed in this country involve anything covered by this legislation. The cost to the industry? This cost goes up $50 million every day we are here talking about it. What we know for a fact is that the industry has pooled $100 million to protect themselves, preemptively, to ensure that the communications are covered by the attorney-client privilege, to ensure that doctors are all centralized so they cannot easily be accessed because of attorney-client privilege. They are using our system of civil justice in the courts very well to protect themselves. They are unwilling to let others use the same devices to protect themselves. This great surge of lawsuits, as was indicated before many times in the Senate, financial reports filed with the SEC, many of the companies are privately held so only few report publicly, indicate to their shareholders there is no material financial risk involved with these suits by municipalities or individual litigants. The litigation costs out of pocket for one of these publicly reporting companies is about $4,500 in the last several months. Hardly a crisis. And then there is the suggestion that our defense will be imperiled. As I pointed out in my opening remarks, voluntarily the Defense Department is contracting with foreign manufacturers. It is not because of lawsuits. In fact, I don't know what the status is of the civil law in Europe, but I would be surprised if it was more lenient than our laws at present, but they are doing it because they want better weapons. I can recall as I entered the Army in 1967, the Colt .45 automatic was the side arm of the U.S. Army and had been since the Philippine insurrection in 1903. Now it is a Beretta Italian model produced by an American subsidiary, wholly owned subsidiary of an Italian company, and not, I don't believe, by a national armory of the Italian Government. They are a privately held company. This notion that this has anything to do with the national defense is unsupported, unsubstantiated by any fact and by the behavior of the Pentagon. They are not coming to us and asking us for this bill so they can keep alive the necessary firearms manufacturers in the United States. They have made a conscious choice for many reasons to go overseas to buy these weapons. Again, I am in a situation where we are attempting to reach into the courts of each State of the United States and tell them that their legislatures--that propound many of these rules with respect to civil liability--cannot do that. What can be more antidemocratic than that? Then, going to the Commonwealth of Massachusetts and saying: You know, those laws and rules you passed about liability? Can't do that. We don't like it. Or the gun industry doesn't like it. The case most frequently cited to suggest a crisis is the result of the deliberations of the Washington, DC, council that passed a strict liability bill. That bill was upheld by the DC Court of Appeals. The DC Court of Appeals did not create a rule of strict liability. They said, essentially, the democratic process is working. Elected representatives of the people decided that would be the rule. As a court we cannot step in and overturn that. That is democracy. Of course, we are deciding we can step in and overturn the rules of 50 States. That is antidemocratic. This legislation is going to deny people who have been hurt the right to bring their case. They might not succeed. As my colleagues have pointed out, many of these cases have been turned down because they could not show that the duty owed to the public was violated by the particular manufacturer or gun dealer. But they have the right now to make that showing. We are taking that right away from them. This right is something that I would think we all would protect, not try to circumscribe and deny, and you cannot go into court with a theoretical complaint saying: I do not like the law; make new law, Your Honor. You have to have a case. You have to show harm. You have to show what the duty of the defendant was, how that duty was breached, and how that breach caused the harm. That is the way our system works. But not after this legislation passes. You can have the duty, you can have a breach of that duty, and you can have grievous harm. But the victim cannot go to court. It is not about an avalanche of lawsuits. There are a minuscule number of suits filed in this regard. It is not about courts out of control. In some sense it is Congress out of control, saying to State governments, we don't care what the State rules are, we are making the rule. We should be able not only to talk about but to offer amendments. I hope in the intervening time we have had to analyze the amendments that we could offer amendments and talk about them. I hope that is the case. I yield the floor.

Mr. REED. If the Senator will yield, I notice you read the letter, but the subject of that letter is strict liability, which in layman's terms--and I will consider myself a layman--means that there is no real judgment about the behavior of the defendants; that if they can prove it was a weapon manufactured by Beretta, and it was involved in a crime, they would be liable without a showing of duty or negligence and whether they took rational and reasonable steps. That is what strict liability is. There is a difference between strict liability and negligence. The legislation we are considering is not about strict liability alone. It is about negligence. It goes way beyond that letter. If we were debating legislation that said essentially a company may not be held strictly liable for X, Y, and Z, this would be a different debate entirely. This legislation goes way beyond strict liability. It says that negligence cases, those that you must show that, in fact, the manufacturer or the dealer had a duty and unreasonably failed to perform that duty, that is what you have to show. In fact, I think I accurately represented what was in the letter.

Mr. REED

Mr. REED. Yes. Mr. President, we have had a long discussion today about the legislation. I think some of the points the Senator from Illinois made are very pertinent. First, there is the erroneous presumption that people who would be sued would be sued because of the actions of others, when in fact the negligent suits lie in showing that first an individual had a duty to someone else--a victim--and that duty was not fulfilled. Essentially, that is the essence of negligence. If you cannot show that, you cannot get into court. This is not about somebody being punished or imposed upon for the actions of others. It goes right to the actions of the individuals--the seller, manufacturer or, in this case, trade associations. There is a perception also, I think, that has been given that the legislation as drafted actually provides exceptions that will cover the meritorious suits, the ones that should be before the court and eliminate the frivolous suits. In fact, that is not the case. As Senator Durbin pointed out in the situation with respect to the Washington, DC snipers, there a gun dealer in Washington State was grossly negligent. He had 230 unaccounted for weapons and they should have been accounted for. He allowed a teenage boy to walk in and pick up a sniper rifle off the counter and walk out and didn't know it was missing until it was discovered to be the weapon of the assassins here in Washington, DC. That suit would have been barred by this legislation if it had passed. The two police officers--Lemongello and his partner-- responded to a call and they were in a shootout. They were seriously hurt, both of them. It turns out that the criminal firing that gun got it from a gun trafficker who walked into a store, a gun dealership, with another woman as a straw purchaser and acquired 12 weapons for cash and walked out the door. In fact, they were so obvious that the gun dealer called ATF and said he sold them the weapons, but watch out for them, which is negligent to me. Both cases were settled. Those cases would be thrown out. The lives of all of the families in Washington, DC, have already been totally changed because of the loss of their loved ones. Conrad Johnson was a bus driver, waiting to go on his bus run, and he was shot, leaving a wife and children. They would have been out of luck because they could not have brought a suit like this. And there were others. We all lived in fear ourselves. We drove around here looking over our shoulders wondering whether the assassins were out here in Washington, DC. One woman who was an employee of the FBI and was walking in the parking lot of Home Depot in suburban Virginia was shot. Those families, those victims, could not have come to the court of justice if this bill passed. There are other suits that are pending today. There is a case in Massachusetts, where a young man, Danny Guzman, an innocent bystander, was shot and killed in front of a nightclub in Worcester. Six days later, police recovered a 9 mm Kahr Arms handgun without a serial number behind an apartment building, near where Mr. Guzman was shot. In fact, I am told a 4-year-old child discovered the weapon first. Ballistic tests determined that the gun was the one used to kill Danny Guzman. This gun was one of about 50 guns that disappeared from Kahr Arms' manufacturing plant. Some of the guns were removed from the plant by employees that Kahr Arms hired despite criminal records and histories of drug addiction. The case is being pursued now. The issue is not what Mr. Guzman did. It is what this company failed to do. They failed to have background checks on employees who handled weapons. They failed to have security devices that would monitor if these weapons would be taken out of Kahr Arms. I am told, interestingly enough, Kahr Arms is owned by a holding company for the benefit of the Reverend Sun Myung Moon's Unification Church. So one of the beneficiaries of this bill, if it passes, will be Reverend Moon's financial enterprises because they will be protected from allegations of recklessness, not just negligence. Now, the first exception to the bill is title 18 United States Code section 924(h). This simply permits cases against sellers who sell guns they know will be used to commit a violent or drug trafficking crime. First, in the Kahr case, the guns were not sold; they were taken surreptitiously out of the factory. This exception would not apply. Second, you have to show they knew that the guns would be used to commit a violent or drug trafficking crime--not that they were negligent in allowing guns in circulation, but that they had to know they would be used in a violent or drug trafficking crime. The next exception is negligent entrustment. This applies where a gun dealer knows, or should know, that a purchaser will shoot someone with the gun, and that individual shoots a person. This exception only applies to a gun ``seller.'' Once again, Kahr Arms was not, in this situation, a seller. Moreover, Kahr Arms did not entrust its guns to its employees. Rather, Kahr's employees removed the guns from the plant because of Kahr's negligent security, inventory tracking, and hiring of employees with histories of criminal conduct and drug addiction. So that exception doesn't apply. There is another exception, negligence per se. Under this provision, gun sellers whose negligence causes injury could not be liable unless, at a minimum, they also violated a law or regulation which the court found an ``appropriate basis'' for a negligence per se claim and which proximately caused the injury. The exception only applies to a gun seller, and the bill defines sellers to include only importers or dealers, not manufacturers. Moreover, in many States--and Massachusetts is one--negligence per se claims are not allowed under their practice and, therefore, the exception would not apply. Knowing violation of the law exception: This exception applies where a gun seller or manufacturer knowingly violates a State or Federal statute when it makes a sale that leads to an injury. Here, Kahr Arms did not violate statutes related to the sale or manufacturing of a gun. Rather, Kahr's employees surreptitiously took the guns out. Breach of contract or warranty exceptions once again do not apply. It merely allows gun purchasers to sue if the seller or manufacturer did not provide the product or service it promised in its sales contract. This exception clearly does not apply. Defective design is a narrow exception for actions for some deceptive design or manufacturing cases. But that exception does not apply. Rather than being legislation that allows the good suits through and the frivolous ones out, this legislation effectively denies people, such as the family of Danny Guzman, their day in court, and many others. It would have denied the two police officers from New Jersey their day in court. It would have denied the victims of the snipers their day in court. For these reasons and many others, I am opposed to the legislation and join others who are and look forward to continuing our discussions in the hours and days ahead.

Mr. REED

Mr. REED. Mr. President, I ask unanimous consent that two of my staff members, Steve Eichenauer and Elyse Wasch, be granted the privileges of the floor during the debate and pending votes.

Mr. REED

Mr. REED. I thank the Senator from Connecticut. The only two publicly held gun companies that have filed recent statements at the Securities and Exchange Commission contradict the claim that they are threatened by lawsuits. Smith & Wesson filed a statement with the SEC on June 29, 2005, stating that: We expect net product sales in fiscal 2005 to be approximately $124 million, a 5% increase over the $117.9 million reported for fiscal 2004. Firearms sales for fiscal 2005 are expected to increase by approximately 11% over fiscal 2004 levels. That is their SEC report which they have to file subject to severe penalties for misstatement and mistruth. I believe that. It appears to be a banner year for Smith & Wesson. There is no crisis. They go on and say in another filing on March 10, 2005: In the nine months ended January 31, 2005, we incurred $4,535 in defense costs, net of amounts received from insurance carriers, relative to product liability and municipal litigation. What they said is--this company, with a banner year of increased sales, with projections for better sales--they incurred $4,535 in out- of-pocket costs to defend product liability and municipal litigation claims and suits. That is a crisis? Sales are up. Litigation costs in this particular area--out-of-pocket costs, to be accurate, of $4,500. That is what they are telling the Federal regulators, under severe penalties for misstatements and even inaccurate statements. There is no crisis. In that same period for which they incurred $4,535 in out-of-pocket costs, Smith & Wesson spent over $4.1 million in advertising. Maybe the real crisis is they have to spend a lot on advertising. But that is not a crisis situation. That is not sufficient to bring the Senate here to debate a bill to give them protections from these types of suits. Meanwhile, gun manufacturer Sturm, Ruger told the SEC in a March 11, 2005 filing: It is not probable and is unlikely that litigation, including punitive damage claims, will have a material adverse effect on the financial position of the Company. Essentially, what these two publicly reporting companies have said, despite all of the discussion by others that they are on the verge of bankruptcy, is: There is no material adverse effect on our financials based on this type of litigation. There is no crisis. So at the same time the gun makers are reporting to the SEC that litigation costs are not likely to have a material adverse effect on the businesses, their trade associations have been rapidly inflating the unsubstantiated estimates of litigation costs. Gun lobby claims of alleged litigation costs have risen in $25 million increments, with no data of any kind to support these claims because most of these companies in the industry are privately held. But I would suggest if the publicly held companies are offering their truthful admissions to the SEC--unless the privately held companies are woefully unmanaged or are unusually involved in this type of litigation--then these estimates have to be widely suspect. Here are the claims of increased costs: April of 2003, estimated litigation has cost the industry $100 million in the last 5 years; July of 2004, estimated litigation costs of $150 million; November of 2004, estimated litigation costs of $175 million; February of 2005, some estimates talk about $200 million. Now, it does not seem to track when you have major companies saying they have no material impact, paying out of pocket $4,500, and then you have these wildly inflated estimates. Number of lawsuits faced by the gun industry is, if anything, far less than many other industries. From 1993 to 2003, 57 suits were filed against gun industry defendants, out of an estimated 10 million tort suits, according to the State Court Journal published by the National Center for State Courts--57 out of 10 million. That is not a record of litigants out of control. The actual monetary awards faced by the gun lobby are even less. The gun lobby's record in court is far worse than the tobacco industry's, which for decades won every case brought against it. But the gun lobby has not lost them all either. In fact, many of the cases my colleague from Alabama was citing were some appeals court cases that were turning down plaintiffs who were unsuccessful at the trial court level. The results of these cases are what one would expect as suits against any industry: Some cases are dismissed, some cases are won by plaintiffs, some are on appeal, others are the result of a settlement between the parties. Now, the fact is, most of the legal defense costs faced by gun industry participants have been covered by product liability insurance, with very little funding coming out of pocket. Again, every industry in the country has to insure itself against these risks. It seems to me there is nothing to indicate the insurance claims against these gun lobbies and gun manufacturers are out of line with those. In this respect, the gun lobby is no different than any other industry. Moreover, the power of the gun lobby to protect itself from litigation and promote its views is illustrated by the war chest it has put together for this specific purpose over the past several years. In 1999, the National Shooting Sports Foundation and others in the gun lobby created what is known as the Hunting and Shooting Sports Heritage Fund by setting aside a small percentage of industry revenues. The fund supports lobbying activities as well as industry public relations initiatives emphasizing the positive aspects of firearms, and it helps cover the cost of retaining internal memos and other sensitive documents with a law firm in California so the gun lobby can avoid the kind of unwanted leaks and exposure that plagued the tobacco industry for many years. Some reports indicate the fund has raised as much as $100 million. We are going to be talking about a lot of victims of gun violence over the next few days, and I can tell you that none of them has access to a $100 million war chest to protect their legal interests or promote their point of view. In any case, the purpose of lawsuits filed on behalf of victims is not to bankrupt the industry. In fact, some of the cases filed have sought only injunctive relief, including reforms of industry trade practices that would make the public safer. This is not always about money. In some cases it is about safety for the general public. It is telling that the new Senate version of the gun industry immunity bill has been changed specifically to ban suits seeking injunctive relief. The argument, of course, is there is a crisis, and the crisis is the financial crisis of the gun manufacturers and the gun dealers, but yet this legislation was altered this year to avoid injunctive relief, which has very little direct impact in terms of awards, punitive or otherwise. Even when plaintiffs seek commonsense reforms in the industry that could save lives, rather than have money damages, the gun lobby and its allies in Congress seek to shut the courthouse door in the face of these victims. The findings section of the bill states: [T]he possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system. That sounds reasonable until you consider that the very essence of the cases the bill seeks to eliminate is that the harm suffered by victims of gun violence is often not solely caused by others, but that specific negligent conduct by defendants in the industry contributed to that harm. That is a key point here. This is not a situation as to anyone in the industry--a manufacturer or dealer--who has followed all the rules and has done everything correctly, and then someone else did something wrong. In order to bring a suit for negligence, you have to point out, allege at least negligent activities on behalf of the defendant, be he or she a manufacturer or dealer. So the core here is the allegation that the defendant--those people this legislation seeks to immunize--did something wrong. Liability attaches if a court finds they did something wrong. Moreover, the bill would exclude many cases that do not seek to hold the entire industry liable but instead focuses on specific dealers or manufacturers based on their negligent contribution to specific instances of harm to victims of gun violence. This is not just a situation where the whole industry is sued. This is a situation where anybody in the industry who is sued gets the benefit of these protections. Unfortunately, this bill would overturn longstanding, widely accepted principles of civil liability law, which generally holds that persons and companies may be liable for the foreseeable consequences of their wrongful acts. By throwing out common law standards established throughout our Nation's history by State courts, and substituting new standards for negligence and product liability actions conceived by attorneys of the gun lobby, this bill would deprive Americans of their legal rights in cases involving a wide range of industry misconduct. Even if we concede, for the sake of argument, that some cases against the industry might be frivolous, this bill applies the legislative equivalent of a weapon of mass destruction where a surgical strike would be sufficient. The bill proposes a sweeping Federal intrusion into traditional State responsibilities for defining and administering State tort law, yet there is no evidence that the State courts are not handling their responsibilities competently in this area of law. There has been no rash of questionable jury awards, and not a single decision or final judgment of any court that justifies this unprecedented legislation. Nevertheless, the bill's proponents seek to preempt the law of 50 States to create a special, higher standard for negligence and product liability actions against gun manufacturers, gun dealers, and trade associations. We are being asked to do this for an industry that already enjoys an exemption from the Federal health and safety regulations that apply to virtually every other product made in this country. There is no crisis. There is no showing that the gun lobby is in danger of extinction as a result of lawsuits. We must look at the facts and not the rhetoric. Again, as to a company that spends out of pocket $4,500 a year, when their sales are increasing by about 11 percent, that is not a crisis. There is nothing, I think, substantiated to suggest otherwise. Now, Mr. President, we are going to engage in a series of discussions over the next several days here. But I think we have to be very clear, this legislation would undercut State laws and State court practices that have existed for as long as the country has existed. It would do so for the benefit of a very special interest group. It would deny access to courts for people who have been harmed, really harmed. Let's take some of these cases. Take the case of Denise Johnson, the wife of the late Conrad Johnson. Conrad Johnson was the bus driver who was the final sniper victim of the Washington area snipers. The snipers' Bushmaster assault rifle was one of more than 230 guns that disappeared from the Bull's Eye Shooter Supply gun store in Washington State. The gun store's careless oversight of firearms in its inventory raised serious questions of negligence that fully deserved to be explored by the civil courts. Two hundred thirty misplaced weapons--if that is not at least a suggestion of some negligence, I do not know what is. This legislation, had it been enacted last year, would have denied the Johnson family their rights in court, their rights to go to that alleged negligent dealer and say: Without your action, without your negligence, my husband, our father, would be alive today. But in addition to that, the manufacturer's actions also were questionable. Despite questionable control activities in relation to their inventory at Bull's Eye--serious and well-known problems at the gun store--they were still able to acquire weapons from the manufacturer. As I indicated before, the Johnsons were able to settle their claim in court. But if this legislation had passed last year, they would have been thrown out. Now, there are other examples that are prevalent that also would have been dismissed by this legislation had it been passed, and future cases if, in fact, we pass it in this session. There is the case of David Lemongello and Ken McGuire, former police officers of Orange, NJ. On January 12, 2001, Mr. Lemongello and Mr. McGuire were shot several times by a violent criminal who should never have had a gun. Because of the injuries he suffered, Mr. Lemongello will never be a police officer again. The gun used in the shooting was one of 12 guns purchased by 2 individuals on a single day from Will Jewelry & Loan, a gun dealership in West Virginia. Mr. James Gray, a felon, used a woman with a clean record to purchase all 12 guns at once with cash. He and the woman came into the gun shop with thousands of dollars, and Gray pointed out guns he wanted, and then had the woman purchase them in a clear example of a ``straw purchase'' to evade the law. In fact, the gun dealer was so concerned about the suspicious transaction that, after taking the money and giving him the gun, he called the ATF. But it was too late; the guns were already destined for the illegal market. The actions of the gun dealer--who failed to follow sales guidelines recommended by the National Shooting Sports Foundation--raise serious questions of negligence. The manufacturer of the gun, Sturm, Ruger, is a member of NSSF, yet it failed to require its dealers and distributors to follow the guidelines. At one point in the proceedings, the West Virginia gun dealer and the manufacturer of the gun asked Judge Irene Berger of Kanawha County, West Virginia, to dismiss the case. She heard the gun seller's legal arguments and rejected each of them, applying the general rule of West Virginia law to allow the case to proceed. Here is a classic example. Someone comes in with another person, purchases 12 guns at once, selects the guns, and pays with cash, but making sure the other person is the one whose name is run through the FBI records check, and then drives away. Doesn't that raise suspicion in your mind if you are a conscientious dealer? Don't you do anything other than call ATF? That is negligence in many respects. Certainly a victim of that crime eventually should have the right to take that case to court. The gun industry bill would have overridden that judge's decision in West Virginia and thrown out the case of the police officers. Again, the Senate rejected this legislation last year, and in June 2004 Officers Lemongello and McGuire won a $1 million settlement to compensate them for their career-ending injuries. After the lawsuit, the dealer and two other area pawnshops agreed to implement safer practices to prevent sales to traffickers, including a new policy of ending large-volume sales of handguns. These practices go beyond the law and are not imposed by any manufacturers or distributors. So here is another situation. It is not only the immediate compensation to these police officers whose whole lives and careers have been changed irrevocably; it is also making it safer for other people so the next time someone wanders into this particular gun shop of this dealer, they won't be selling 12 or so handguns without seriously checking who is buying. Today, as we face another attempt in the Senate to take away the rights of innocent victims of gun lobby negligence, there are still many legitimate pending cases that will be thrown out by the bill before the Senate. We can always anticipate additional situations. In fact, there is a very strong likelihood that if this legislation passes, whatever steps are taken today by gun dealers and manufacturers will be abandoned or lessened because effectively they have a free pass. No one can sue them. They don't have to worry about the litigant going to court and saying, your sales practices or your behavior were negligent. We have given them immunity. In fact, one might even anticipate more incidents. But there are cases pending today that could be affected. For example, in another case, Guzman v. Kahr Arms, a lawsuit was filed by the family of 26-year-old Danny Guzman of Worcester, MA, who was fatally wounded when a 9 mm gun stolen from a gun manufacturer's plant was stolen by a drug-addicted employee who had a criminal record. The manufacturer, Kahr Arms, operated the factory without basic security measures to protect against thefts, such as metal detectors, security mirrors, or security guards. Guns were routinely taken from the factory by felons it had hired without conducting background checks. The gun used to kill Danny Guzman was one of several stolen by Kahr Arms employees before serial numbers had been stamped on them, rendering them virtually untraceable. The guns were then resold to criminals in exchange for money and drugs. The loaded gun that killed Mr. Guzman was found by a 4-year-old behind an apartment building near the scene of the shooting. Had Kahr Arms performed drug tests or background checks on the prospective employees or secured its facilities to prevent thefts, Danny Guzman might be alive today. A Massachusetts judge has held that the suit states a valid legal claim for negligence. But this bill would throw the case out of court, denying Danny's family their day in court. That is the reality of this legislation. That is what we are protecting. We are protecting manufacturers who take no care in hiring employees, yet give them access and proximity to weapons, and who employ no effective security measures. That, at least, is negligence. At least they should be tried in court. This legislation would immunize that. Ask yourselves again, What incentive would manufacturers such as Kahr Arms have to spend any money on background checks, to spend any money on security? None at all because, frankly, they have a free ride, a pass. No one can touch them. And in this legislation we are not about to start regulating the manufacturing practices of gun manufacturers in the United States. Now, every industry has good actors and bad actors and the firearms industry is no exception. There are manufacturers that produce high- quality products that feature necessary devices to make the firearms as safe as possible. There are other manufacturers that create poorly designed, poorly constructed firearms that are favored by criminals, that have no place in the home, at the shooting range, or on hunting grounds. Likewise, there are licensed dealers who comply with both the letter and the spirit of our gun laws and do everything in their power to ensure firearms are sold only to lawful buyers. There are other dealers who routinely sell guns regardless of the age or criminal background of the buyer. Essentially, they wink and look the other way. This small minority of bad apple dealers has a significant impact on gun violence on our streets throughout the country. According to the Federal data from 2000, 1.2 percent of dealers account for 57 percent of all guns recovered in all criminal investigations; 57 percent of the guns recovered in criminal investigations pass through their hands. Does that suggest there are some gun dealers who are negligent, who are not following the letter or the spirit of the law? And the gun manufacturers know who the problem dealers are because when guns are recovered at crime scenes, they receive firearm tracing reports that show which dealers sell disproportionally to criminals. But in too many cases, the gun industry refuses to police itself. If this legislation passes, there will be less incentive to take precautions, to take steps to prevent guns from getting in the hands of those people who would use them irresponsibly. The national crime gun trace data from 1989 through 1996 gathered by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives indicates the following gun dealers sold the highest number of crime guns in America and exhibited crime gun tracing patterns indicative of drug trafficking. Whereas most gun dealers have been associated with zero gun traces, guns sold by these suspect gun dealers turn up in the wrong hands over and over again. For example, in Badger Outdoors, Inc., of West Milwaukee, Wi, the dealer sold 554 guns traced to a crime, and 475 of those guns had a ``short time to crime'' as defined by ATF. The guns were involved in at least 27 homicides, 101 assaults, 9 robberies, and 417 additional gun crimes. The dealer also sold at least 1,563 handguns in multiple sales. From 1994 to 1996, straw purchaser Lawrence Shikes bought 10 guns from Badger. In one case, he immediately sold the gun to an undercover Federal agent who told Shikes he was a felon. Several weapons Shikes purchased have been recovered from a killer, a rapist, a convicted armed robber, a man who shot a police officer, and three juvenile shooting suspects. So, again, a very small percentage, but still we are immunizing these people also. This legislation doesn't make any distinction between competent, conscientious gun dealers. It is everyone. And we know everybody is not following the rules as scrupulously as they should. To put a check on the behavior, if you are harmed and injured by this negligence, go to court and say, I have been harmed, this defendant contributed to my injury and I seek compensation, this legislation will tell that victim, go away; the courts are closed to you. There are other cases. Realco Guns of Forestville, MD; Southern Police Equipment, Richmond, Va; Atlantic Gun & Tackle, Bedford Heights, OH; Colosimo's of Philadelphia, PA; Don's Guns & Galleries in Indianapolis, IN. Throughout the country, the exception to the rule, and the rule is generally conscientious individuals follow the laws. But this legislation protects these individuals as well as the conscientious dealers. Again, it is inappropriate, unfortunate, unsubstantiated. Where is the crisis? All the public records we have of the gun manufacturers say there is no material impact on the financial well- being. Those are reports submitted to the SEC, not press releases from lobbying groups. We are going to upset the traditions of tort law throughout this country for a situation where no crisis exists. Again, we have moved from consideration of one of the most significant pieces of legislation we consider every year, the Armed Forces authorization, to deal with this issue--no crisis, no substance, but an industry-political motivation by the NRA and the gun lobby to protect their members from bona fide allegations of negligence in certain cases. There is no explosion of suits. These are minimal, a fraction of the tort suits in this country. Yet we are here today to devote a huge amount of time after moving away from the Defense bill to consider this legislation. Procedurally, it is terrible. We should be talking now, as we all hoped we would, about further benefits for our military personnel, about improving their quality of life, improving their equipment, giving them the resources to defend us. Yet we are now staked out, literally, to try to provide benefits for the negligence of a few people in an industry that has no financial crisis and is in no danger of going away. I yield the floor.

Mr. REED. Mr. President, I rise in strong opposition to S. 397, the so-called Protection of Lawful Commerce in Arms Act. Like its predecessor which the Senate soundly rejected last year, this bill is one of the most blatant special interest giveaways that I have seen during my time in the Senate. At a time when more than 7.5 million Americans are unemployed and our Nation faces a deficit of $333 billion, war in Iraq and Afghanistan, inadequate homeland security funding, and now a Supreme Court vacancy, to me the Republican leadership choosing to devote our precious time to a bill that would deny victims of gun violence their day in court and protect the gun industry is a travesty. The gun lobby argues that this legislation would put an end to frivolous lawsuits that claim gun companies should be liable simply because their guns are used in crimes. In fact, the bill would bar virtually all negligence and product liability cases in State and Federal courts while throwing out pending cases as well as preventing future cases. The bill would provide this sweeping immunity to gun dealers, gun manufacturers, and even trade associations. Interestingly, the NRA modified the bill so that this year they don't appear to be granting themselves legal immunity as they did the last time around. The track record for this bill in the last two Congresses has, thankfully, been one of failure. We can only assume that the gun lobby is hoping that the third time will be the charm. The gun lobby and its allies in Congress had to abandon their effort to pass similar legislation in the 107th Congress, after the Washington area sniper attacks terrorized an entire region. Then last year, in one of the more bizarre twists in recent Senate history, the National Rifle Association instructed the Republican leadership to kill the bill after a majority of Senators voted to add reasonable gun safety measures--to require background checks at gun shows, renew the assault weapons ban, and require child safety locks to be sold with handguns. It is a good thing that the Senate defeated this bill because it would have thrown out the civil lawsuits filed by the families of the victims of the sniper attacks, even though the Washington State gun dealer who had the Bushmaster sniper rifle in his inventory could not account for that weapon or more than 230 others. Instead, the families of the victims won a $2.5 million settlement from Bull's Eye Shooter Supply and Bushmaster, the assault weapons maker who negligently supplied Bull's Eye despite its abysmal record of missing guns and regulatory violations. At the heart here is not activist courts making law. The heart of this is people who have been harmed by weapons, innocent people, people such as the victims of the Washington sniper--someone walking to their car from the Home Depot and being shot and killed; a bus driver waiting to take his rounds in the morning, having a cup of coffee, reading the paper, with a wife and children at home, shot by snipers. Where did they get those weapons? They got them through the negligence of a licensed gun dealer. This legislation would effectively prevent those families from recovering damages, compensation for the loss of a husband and father, the loss of a wife. This is not about activist judges making law. This is about shutting the doors to the courts of America, mostly State courts, to prevent those who have been harmed by the negligence of others to be made whole. That is what this is about. That is why it is so wrong. With respect to the sort of activism of public policymaking, we all recognize in this body that Federal law is one aspect, but State law is also important. In fact, most tort law is based upon State law. State assemblies make up State laws. They decide causes of action. They decide defenses. They do a lot of those things in conjunction with litigation in their courts. This legislation preempts all 50 States. This says to the State of Georgia, the State of Alabama, the State of Rhode Island, the State of Michigan, you can't have the ability of your citizens to go to court. Even if you believe it is appropriate and right in your State courts, we are preempting you. That is also wrong. In addition to the monetary settlement for the victims of the families that were the victims of the snipers, in the settlement, Bushmaster agreed to inform its dealers of safer sales practices that should prevent other criminals from obtaining guns, something Bushmaster had never done before. What you have is a situation of negligence, and this negligence can extend not only from the dealer but to the manufacturer. This legislation not only would deny the right of a victim to come forward and ask for compensation, but also to reform the system. We have to recognize, too, that there are elaborate rules for the governance of weapons and firearms and tobacco, an agency of the Federal Government. But this is one industry that is virtually not subject to any product liability, any consumer product safety rules, any other type of regulation. This legislation would undercut ways in which a court could do justice. Because the Senate rejected this legislation last year, these victims and their families had their day in court, and at least one manufacturer's commercial practices were improved in ways that benefit all Americans. What could be more helpful to all of us if a manufacturer takes the time and the effort, appropriately, to inform his dealers about appropriate practices in selling weapons, about avoiding selling weapons to those people who might be trafficking in weapons, avoiding selling weapons to those people who might be irresponsible and reckless in the use of those weapons? That can only benefit all of us. But despite all of these things, we find ourselves again in a familiar situation, one in which the NRA's pet project is again being granted a virtually direct, nonstop ticket to the Senate floor. The Senate Judiciary Committee has held no hearings on this legislation, and no committee markups were ever scheduled. The bill's supporters knew it would be difficult to withstand the kind of scrutiny that might result in careful, deliberate, and thorough committee hearings, so they brought it straight to the Senate floor. Here we are today. Now it is up to us make sure that there is a full and vigorous debate, including not only amendments to deal directly with aspects of this legislation but also to address other issues with respect to violence in America and gun safety. If we are going to grant blanket legal immunity to the firearms industry, it is imperative that we address inadequacies in other areas with respect to gun safety legislation. Mothers and fathers across America go out of their way every day to protect themselves and their children from harm. How unsettling it must be for these families to think that the gun industry, which is already exempt from Federal product safety regulations that apply to children's toys, pharmaceuticals, and virtually every other product in this country, may now receive legal protection that no other industry enjoys. I listened closely to the Senator from Alabama talking about this as if a car manufacturer was being held responsible for the actions of others. Well, they could be in certain situations. If a car dealer leaves his cars unlocked with keys in the ignition at night and someone comes and takes that car, drives it away, causes damage, certainly the issue arises, was that car dealer using good common sense? Certainly, that would be a case that would at least get to the notion of filing the case. This bill would prevent such a similar case from the gun manufacturers and the gun dealers, but there is no attempt, at least today, to limit those types of liability to other manufacturers. I believe that shows how narrow this is and how it is focused to a very special interest. That is unfortunate. As with any other business, there are good actors and bad actors with respect to the gun industry. There are those who carefully follow the law and those who ignore it. But granting unprecedented legal immunity to the entire industry without requiring any additional responsibilities to protect the public from reckless behavior would be a grave mistake. It will only encourage those who already engage in questionable conduct. I urge my colleagues, as we work through this debate, to listen closely and to try to recognize that we are taking unprecedented action with respect to undermining the traditional system of common justice. First, we are usurping authority for State law that is traditionally the purview of State assemblies and legislatures. Then we are granting an unprecedented immunity to one very particular industry. That might be a precedent, unfortunately, for other industries that come forward, which would be a severe unraveling of the protections we all have. All of this, again, begins not with someone going out to stage a lawsuit by being shot. That is the last thing that happens. The victims of this gun violence, who are the subject of these suits, didn't want to be victims. They didn't want to be in court. The bus driver waiting there to start his run was not thinking, Oh, boy, someone is going to shoot me so we can start a case and change public policy. He was shot by a sniper who obtained a gun through the negligence of others. Yet that family would have been denied their relief in court if this bill had passed last year. There was discussion about personal responsibility. There is personal responsibility. It is important. It is fundamental to everything we do. What about the responsibility of the gun dealer to know how many weapons he has on hand, where they are, not to leave it out so it can be taken? Apparently the youngest sniper, who was barely of age, just picked it up off a counter and walked out of the store with it, a rifle that was used later to shoot and kill several people. Where is that personal responsibility? And if you are the victim of that lack of responsibility, how can you have your day in court if this legislation passes? Now, we have a lot of work to do in this Congress. We should get on with it. That is why it is amazing that we have left the Defense bill that would provide the resources to protect our soldiers, sailors, marines, airmen and airwomen across the globe to move to this very narrow, special interest bill. I think it is extremely unfortunate. A part of the rationale for this bill advanced by the proponents is that there is a crisis. There is a crisis with respect to the industry. They are about to lose their ability to manufacture. They are going to go bankrupt. We won't have any weapons for our national security. That is not substantiated by any of the facts before us. The gun lobby says it needs protection because it is faced with a litigation crisis. The facts tell precisely the opposite story. There is no crisis. There is a crisis in Iraq. There is a crisis in Afghanistan. There is a crisis across the globe with international terrorists. That is a crisis. But it is not a crisis with respect to gun liability in this country. Yet we move from legislation dealing with these huge crises, some of which have existential consequences to us, particularly if terrorists ever get their hands on any type of nuclear material, to a situation where there is no crisis.

Mr. REED. First, let me thank the Senator for yielding the time. I appreciate that very much. I want to make some brief comments. My colleague and friend from Alabama made reference to the Beretta Company and apparently their concern about legislation in the District of Columbia. I want to make a few points to clarify what I believe the context of this letter from Beretta is. First, the District of Columbia Council apparently passed strict liability legislation which is an example of an elected body, not a judge, making up laws. We might disagree with them, but the point is that this is an elected body doing this; this is not judge-made law. As I understand it, the Court of Appeals for the District of Columbia simply upheld the statute. They acted appropriately, procedurally correct, and the statute is in force. I do not know if this is the intent of the suggestion, but a lot of the debate today has been about letting legislators and legislatures do their jobs without defying the court. In this situation of Beretta, that is exactly what happened. The DC Council acted, the court of appeals said we have no reason to disagree substantively with what you have done and the law stands. But I think there are much more important points to be made in the context of this legislation. The proposed legislation is not simply attempting to eliminate claims of strict liability against gun manufacturers, gun dealers, and trade associations. It goes all the way to wiping out a broad array of negligence claims. And the essence of negligence is that the defendant, or the one who is being accused of negligence, must fail to perform some duty, the duty to the injured party. There has to be some personal action, not simply doing something that has been legislatively ruled to be wrong. In that context, one can look at the concerns of the Beretta Company about strict liability much differently than in this legislation, and I think it would be wrong to assume and argue that because they are concerned about strict liability applied entirely to the legislation before us. Now I assume they oppose the legislation. But the issue is much broader than strict liability; it is negligence. It is not a situation where a manufacturer or an individual will be held liable for something they never did. The essence of negligence is you have to fail to perform a duty, and that is at the heart of the legislation before us, providing broad exemptions and immunities for gun dealers, gun manufacturers, and trade associations whose own conduct would at least lead to allegations in court of negligent behavior. I wanted to make those two points, and I yield the floor. Mr. President, I suggest the absence of a quorum.

Mr. REED. I am happy to yield to the Senator from Connecticut.

Mr. REED

Mr. REED. I could say, Mr. President, we will try to determine this, but unexpended does not mean that it is not committed. Some of these funds could in fact be committed to specific sites already so that money can't be spent again elsewhere. We will try to get a number on that. But the scale of the problem, the number of sites--it is in the order, just within Russia, of 200 sites.

Mr. REED. Mr. President, this amendment was offered by Senator Levin and myself would do several very critical and important things. First, the amendment would increase funding for the Cooperative Threat Reduction Program by $50 million. The offset would be twofold: $30 million would be taken from the long lead procurement of ground-based interceptors as part of the National Missile Defense Program and another $20 million would be taken from the funding for initial construction for silos to house these interceptors. Essentially what Senator Levin is doing with this provision is to recognize the fact that a more immediate threat to the United States rests with literally thousands of locations where nuclear material might be housed from the breakup of the old Soviet Union, and other locations that need attention with respect to the reduction of these materials. I believe the greatest threat we face in this country is the fact that--hopefully not, but the situation where a terrorist might gain control of these materials, bring them into this country and use them with devastating effect. So this amendment recognizes the most immediate threat comes from these materials and therefore is putting additional resources from the National Missile Defense Program, modest changes, to approach this major effort with respect to cooperative threat reduction. The funds would come from our ground-based midcourse defense system. The interceptors and silos where the offsets occur are now currently being deployed at Fort Greely, AK, and Vandenberg Air Force Base in California. Because of recent developments, we have an opportunity to address the critical issue of loose nukes by transferring these funds. I would argue this is a most worthy cause. The offset will not affect the missile defense system at all. In fact, as we understand it, in the last several months the missile defense system has been reevaluating itself, looking at whether the technical issues are challenging, in fact, and have not conducted tests as they thought they could over the last several months. So I think now is the opportune time to put more resources in cooperative threat reduction. We are all aware, as I have mentioned before, that the greatest threat to us today is the possibility that terrorists will acquire nuclear weapons or nuclear material and use it with devastating effect against us. Of course, one country with enormous amounts of this nuclear material is Russia. It is estimated that Russia has approximately 16,000 nuclear weapons stored at between 150 and 210 sites. While that is a significant reduction from the 40,000 weapons at the end of the Cold War, it is still a huge number of weapons and also a large number of storage sites. Indeed, there is some imprecision about where all the sites might be. Of course, we have also heard reports of potential sites for, if not nuclear material, other dangerous material in former components of the Soviet Union, the newly independent states. So this is a challenging issue we have to face. Only about 25 percent of the total number of weapons sites have received any upgrades in the past five years. Many of them still lack adequate security and safeguards. At the rate planned for in the fiscal year 2006 budget request, it would be around 2011 or 2012 before the work at only a portion of the sites would be completed to bring them up to levels of security and safety that we would feel confident this nuclear material would not be stolen, misplaced or somehow find itself in the world community. The Defense Department only expected work to be scheduled on one or two sites in fiscal year 2006 so they budgeted approximately $60 million in the process. But then in February, when President Bush and President Putin met at the summit in Bratislava, Slovakia, the two agreed on a way to address security upgrades at 15 key nuclear weapons sites. With this agreement, we have the opportunity to accomplish in 2 years what we thought would take 10. The issue, of course, is funding. The total cost of these upgrades is approximately $350 million. With this amendment, we are adding $50 million to this project, which is not the total needed but will allow for a good start. Again, this is a huge breakthrough that occurred after the President's budget submission. It is a major opportunity we simply must take advantage of. As I have indicated before, the proposal of Senator Levin is to move this $50 million into cooperative threat reduction from the National Missile Defense Program. I think it is useful to look at this program to indicate where these transfers are possible, available, and even desirable. When President Bush first took office in 2001, he made missile defense one of his highest priorities. In May 2000, President Bush said America must build effective missile defense based on the best available options at the earliest possible date. Missile defense must be designed to protect all 50 States, our friends, allies, and deployed forces overseas from missile attacks by rogue nations or accidental launches. President Bush's first major action was to significantly increase funding for missile defense. Since fiscal year 2002, approximately $45 billion, including fiscal year 2006 requests, has been provided for missile defense. That is $45 billion and here we are talking about a transfer of $50 million from that huge program. This amount is half of what has been spent on missile defense since President Reagan launched the Strategic Defense Initiative in 1984. We have seen a huge acceleration of funding with respect to missile defense. Another aspect of President Bush's plan for missile defense was that the systems would be developed and acquired under an approach called spiral development. As the Congressional Research Service succinctly summarizes: A major consequence of the administration's proposed evolutionary acquisition strategy is that the Missile Defense Program would not feature the familiar phases and milestones of the traditional DOD acquisition system. Another consequence is the Missile Defense Agency cannot provide Congress with a description of its final missile defense architecture, the capabilities on any near or longer term system, the specific dates by which most elements of the emerging architecture are to be tested and deployed, or an estimate of the eventual costs of the Missile Defense Program. So President Bush's plan was to spend an enormous amount of money in a short period of time with little plan and no traditional checks and balances with respect to traditional procurement programs. This program has, in fact, come under self-generated pressures. Tests that were proposed to be conducted over the last several months have been postponed and cancelled. There is a hard relook at the technology. There is potential here, but certainly there is not the kind of progress that would justify the robust spending to date and certainly not indicate that they need an additional $50 million to keep doing what they are doing. In the past, we have looked very carefully at this program of national defense. Like so many others, I believe if we can produce--and I think we can ultimately--a workable system to protect this country, protect its allies, our troops in the field, we have to do that, but we have to do it with deliberate speed, and I would emphasize deliberate speed, not all-out haste, which generally means waste. I believe we should pursue this system, but I also believe we should take the time to determine that the technology, which is extraordinarily complex, is mature and effective. So beginning in 2002, I offered amendments which I felt would improve the Missile Defense Program. In the fiscal year 2003 bill, I introduced an amendment requiring a report on flight testing of the ground-based midcourse defense, or the GMD, system. In fiscal year 2004, I offered an amendment which would direct that the Missile Defense Agency provide information on procurement, performance criteria, and operational test plans for ballistic missile defense programs. In fiscal year 2005, I introduced an amendment requiring operationally realistic testing and independent evaluation of the ballistic missile defense system. All of these amendments were modified by the majority. Then they were passed. Indeed, it is unclear if they were not modified whether they would have passed. Furthermore, when the Missile Defense Agency met these requirements, in many instances details and quality of reporting were lacking. For the most part, the Missile Defense Agency has been doing what it wants to do with very little detailed supervision by the Congress and it has led to a situation now where the program is being seriously looked at. We certainly have not made the kind of technological breakthrough which was anticipated. One thing is certain, we have spent a great deal of money in this pursuit. Now, where we are today, interceptor tests are the critical tests which involve a real missile defense interceptor hitting a real target missile. These tests are the only means to truly assess whether a missile defense system has the chance of working against a real enemy missile. There is nothing elaborate or sensational in this proposition. In order to see if a system works, one has to take it out and use it. One missile has to be fired against another missile and knock down the intruding missile. If that is done with enough frequency and enough confidence, then the system is ready to go. The first intercept flight test of the system was conducted in December 2002 and it failed. Six days after that test failure, President Bush announced the United States would deploy the missile defense system. Usually such announcements are reserved for success, not failure. In effect, it is almost like looking at a new, expensive jet fighter prototype going down the way, malfunctioning and then turning around and saying let us buy a lot of them, let us put them in the sky. That is not what most people believe is the appropriate criteria for being operational. Over the next 2 years, seven other planned tests were cancelled. Yet, in September 2004, the system was declared nearly operational, with six interceptors at Fort Greely, AK, and two interceptors at Vandenberg Air Force Base. Three months later, in December 2004, the Missile Defense Agency then conducted the only second integrated flight test on a multibillion system. It too failed, and the system was now described as operational in the near future. On February 14, there was another integrated flight test and it too failed. After these three consecutive failures, Lieutenant General Obering, director of the Missile Defense Agency, established an independent review team to examine test failures and recommend steps for improving the test program. The team made some very interesting observations. First, I believe they confirmed suspicions that there was a rush to deployment, a rush not justified by the technology, its maturity, and by the operational techniques that were necessary to deploy it, but simply to get it deployed. The team report states: There were several issues that led to the flight test failures of the Integrated Flight Tests . . . With the focus on rapid deployment of the Ground-based Midcourse Defense system, there was not always adequate opportunity to fully ground test the system prior to each flight attempt. Again, skipping over critical steps to rush to a deployment. The team also found: Schedule has been the key challenge that drives daily decision making and planning in the program. Not the technological maturity of the system, not technical issues, but schedule was driving the technology, not the other way around. The independent review team also took issue with the spiral development and lack of testing. Again, in their words: Due to the lack of application of a few well-known verification specification and standards by the GMD program, failure evidence suggests that some problems might have been during the launch. The team feels that considerable opportunity exists to improve the confidence in the reliability of hardware and software by adopting industry best practices that exist as specification and standards. In effect saying, we have to have requirements, we have to have standards, we have to have specifications, we have to be able to measure this program and its components before we rush to deploy it, much of it echoing comments made on this floor by myself and many others. The team report further states: There are not enough ground tests available to verify/ validate system operational performance and reliability. The Joint Program office should consider redirecting some production assets for ground tests to gain a higher confidence in the GMD system performance. The GMD review team would again recommend, in their words: The Ground-based Midcourse Defense Program enter a new phase focused on Performance and Reliability Verification, in which Missile Defense Agencies make tests and mission success the primary objective. The new phase should validate the technical baseline and should be event driven rather than schedule driven. In effect, build on success, don't build based on schedule. General Obering also requested Rear Admiral Kate Paige to direct a Mission Readiness Task Force to study the review team's recommendations and put the program on a path to flight test and management success. The Mission readiness task force, under the Admiral, made the following recommendation: Four interceptors previously planned for near-term operational deployment will be diverted to serve as ground test missiles. There will be a significant increase in ground testing of all systems, components, and processes before resuming flight testing. Contractors will be held accountable for their performance. The first flight test will not be an intercept test and the first intercept test will not take place for more than a year. Let me commend General Obering and the Missile Defense Agency for implementing these recommendations. I believe they will go a long way toward improving the missile defense system, an objective we all share. However, I note these recommendations sound very familiar and one could only contemplate how much effort and money would have been saved if we had approached the system this way from the beginning--not rushing to failure, but building for success. There are presently six ground-based interceptors in silos at Fort Greely and two in silos at Vandenberg Air Force base. The administration also requested, and the Congress has already approved, most of the funding for these 30 interceptors. As I have noted, there has yet to be a successful flight test of these interceptors, so we are already buying an additional 30 interceptors when we do not know how to make the first 6 work. I think a responsible approach is to slow the allocation of funds for the procurement of these interceptors until they are proven operational and to use that funding for more pressing needs. This amendment does that. The President's budget request seeks long-lead funding for 10 operational interceptors and 8 flight test interceptors, 18 missiles in all. However, the actual production rate capacity for the interceptors is 1 per month, or 12 per year. That means the Defense Department is seeking funds for more missiles than they can build in 1 year. There is no need to pay for more interceptors than can be built in 1 year. Instead, we can provide 1 year's worth of funding for 1 year's worth of missiles--12 instead of 18. This amendment will not cause a break in the production line. I also note the House Armed Services Committee, in its fiscal year 2006 Defense authorization bill, reduced the long-lead funding for five of the operational interceptors. The administration has not indicated that the proposed reduction would cause any serious problems for the program. I also want to state that the President's budget request includes $53 million in long-lead funding for eight test missiles. It is essential to produce missiles for testing. This amendment would not reduce that funding for the test missiles at all. We realize we are in the test phase. The problem becomes we are attempting to buy operational missiles before we are sure the test missiles will really work. That, I think, is at the heart of much of the criticism. Our missile defense systems are robustly funded in this bill with about $7 billion. What this amendment does is take money that cannot even be spent this year and allocate it to a new opportunity to prevent loose nukes, which is truly an imminent threat, an existential threat to this country. This amendment, which enhances security by funding one program without causing any harm to another program, is a win-win situation, and I urge my colleagues to support this amendment. We are trying to exploit a diplomatic breakthrough that was engineered by President Bush in his meeting with President Putin that allows the expansion, rapidly, of inspection and securing of sites in the former Soviet Union and Russia. We are taking a truly modest amount of money, given about $6 or $7 billion for overall missile defense, and using that to try to prevent the proliferation of nuclear weapons and nuclear materials across the globe, which is the most serious threat that we face as a nation.

Mr. REED. Fifteen minutes, I believe.

Mr. REED. Senator Levin will need some time, also.

Mr. REED. Would the Senator restate the UC?

Mr. REED. Reserving the right to object, I just want to protect the ability for Senator Levin to have time.

Mr. REED. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

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

Mr. REED. Mr. President, I call up an amendment that Senator Levin has offered, which is at the desk.

Mr. REED. I thank the Chairman for the question. My understanding is that the production cycle for the system, these interceptors, is 12 per year. Yet the budget is asking for more than that. So I don't think taking $50 million--as I understand the amendment, $30 million taken from long-lead, ground-based interceptors--taking $30 million away I do not think would upset the production line schedule. There is no intent to do that, and I think the effect would not be to do that also. With respect to your point, which I think is well taken, about the buildup in funds in the comprehensive threat reduction, some of that-- we will check more dutifully--but some of that to my knowledge is the result of the inability to agree on a way to deal with some of these sites. We hope that difficulty has been substantially reduced by President Bush and President Putin's discussion in Bratislava. Now that they have agreed on a framework, they can start applying this money. Also, again, I think this money would be well spent, would not disrupt the production of the missile systems, and just the sheer scale--this is $50 million total, $30 million from the ground-based interceptors, $20 million for initial construction of silos and housing for the interceptors--again, this is truly long-lead procurement. We have, in my view, and I believe that of Senator Levin, much more of a problem in the site in Russia that contains the nuclear materials. We have all heard the horror stories of people being able to walk in, walk around, and walk out of these sites without anybody interfering with them--no electronic equipment or sensors that would detect or report their presence to anyone's attention. So our view--my view, speaking for myself--is that this money could be much better spent, without disrupting the missile defense program, by applying it to comprehensive threat reduction. Frankly, $500 million is an impressive amount of money that has not yet been spent, but we all recognize, if any of this material made its way outside these sites and got into the hands of irresponsible people, it would be serious.

Mr. REED. Mr. President, my information indicates the fiscal year 2006 budget for expansion, there is $20.682 million. I will ask my staff to coordinate with your staff.

Mr. REED

Mr. REED. I ask unanimous consent that two fellows in my office, Tanya Weinberg and Elizabeth Winkelman, be granted the privilege of the floor for the remainder of today's session.

Mr. REED

Mr. REED. Mr. President, I rise in support of the Kennedy amendment dealing with the robust nuclear earth penetrator, or RNEP. This issue has been discussed and debated at length many times. In fact, my impression was that we had come at least legislatively to a conclusion. The conclusion was that this was not a weapons system that would materially aid our ability to advance national security purposes of the United States. In the fiscal year 2003 budget request, the Department of Energy sought $15 million to fund the first year of what was to be a 3-year, $45 million study to determine the feasibility of using one of two existing large nuclear weapons as a robust nuclear earth penetrator. They couched it in terms of a study. There is some discussion about requirements and studies. My impression is that a requirement is a formal decision made by the Department of Defense through elaborate procedures. With respect to the particular nuclear penetrator to attack deeply buried targets, I do not believe there is a formal requirement. There is a general requirement to hold at risk hard, deeply buried targets, but there are many different variations that could be applied to that, and I do not believe the Department of Defense has yet come to a conclusion, a requirement, that this mission can only be undertaken by a robust nuclear penetrator. Nevertheless, early on, several years ago the Department of Energy's budget called for studies. Congress authorized and appropriated the $15 million for the first phase of this study by the Department of Energy, but DOE was not to begin this work until it submitted a report setting forth requirements for an RNEP and the target types that RNEP was designed to hold at risk. DOE proposed their response in April of 2003, and the funds were released to begin again this study. Once again, DOE insisted that this was just a study. There was no decision to begin the process of development and production that would lead to a weapon. The following fiscal year 2004, DOE again sought $15 million for the RNEP, but now Congress had become, I think rightfully, a little skeptical of the technology, of the efficacy of this proposed weapon, to do what it was intended to do, and as a result, only $7.5 million was appropriated. DOE took the reduced funding and said: Still, this is just a study. We just want to look at this concept. We study lots of concepts. We certainly cannot inhibit the intellectual inquiry when it comes to an issue of so much importance to our national security. Now, in the 2005 budget request, after 2 years of various requests, the true nature of the RNEP proposal is becoming much clearer. It does not appear today to be just a study. DOE sought $27.5 million for RNEP in the 2005 budget request. In addition, DOE included the RNEP in its 5-year budget report demonstrating that the real plan was to continue with the RNEP project through the next 5 years through the development stage and just up to the point at which production would begin. Now it is no longer just a study. In fact, DOE is talking about almost $500 million over the next several years to get ready to build an RNEP. The cost of the feasibility study has also increased dramatically from the initial $45 million--$15 million a year for 3 years--to now $145 million. If the study is increasing from $45 million to $145 million, if that same progression is applied to development, then right now we are talking about almost a billion dollars to get to the point of development and production for this RNEP. Finally, though, I think Congress had its fill with the study that turned out to be a stalking horse for a production program, and in the fiscal year 2005 budget cycle denied funding. I applaud particularly our colleagues in the other body who were very much involved in this decision on a bipartisan basis and decided that this program was not worth the investment; that it was not a study; that if it was a true study it could have been concluded and the results could have been provided to decisionmakers for a more thoughtful review of this aspect of national security. The administration just did not get the message. So in 2006, this budget request, DOE requested $4 million to start the RNEP feasibility study again, and $14 million will be needed in fiscal year 2007 to finish the study. It should be apparent right now, this is not about a study. This is about developing a weapons system to hold hard and deeply buried targets at risk. The National Academy of Sciences conducted their own study to look at the feasibility of doing this and the usefulness of this type of weapons system, at the request of the Armed Services Committee. Their study sheds a great deal of light on the practical implications of this weapons system. DOE says the RNEP project is to look at the feasibility of using a bomb with a small nuclear yield to target hard and deeply buried targets with minimal collateral damage on the surface and minimal fallout. That would be a very important development, if it were feasible. But the Academy points out in their study, and makes it clear, that to really hold hard and deeply buried targets at risk the RNEP would have to be very large and would not be contained. This is about physics, I think, more than it is about wishful thinking. The physics of the problem suggests if you really want to destroy that target you can't use a small nuclear charge. You would have to use a rather considerable one. Therefore, the DOE is considering modifying an existing large-yield nuclear weapon, the B-83, to be a nuclear penetrator. The B-83 nuclear bomb has a 1-megaton yield. That is explosive power equivalent to 1 million tons of TNT, hardly a small, discrete weapon. The full megaton yield of the B-83 would be needed to hold at risk a target buried 900 feet below the surface--because of engineering progress, you effectively can burrow that far down and put facilities or intelligence centers or other critical military installations at that depth. But not only would the fallout not be contained after the detonation of this large a weapon, the resulting radioactive debris that the B-83 would put in the atmosphere would make the fallout worse. You would be sending a charge down into the earth, exploding the earth, blowing it up into the atmosphere and spreading the fallout. There would be substantial casualties if it were used, and the fallout would spread for hundreds of miles. The National Academy of Sciences study makes it clear that in a populated area, millions of people would be killed and injured. Let me give sort of a rough comparison of the effects of the B-83 system. It has yields ranging up to 1 megaton; that is 1 million tons of TNT. The bomb we dropped on Hiroshima was 14 kilotons. It resulted in the death of 140,000 people. The Nagasaki bomb was 21 kilotons; 73,000 people died. The yield of the B-83 bomb is 71 times larger than that used at Hiroshima and 47 times larger than Nagasaki. That would cause incredible damage and casualties. In a practical sense, if you are striking a critical installation, most likely that installation is close enough to either an urban area or close enough to other key terrain that a military commander would have to think twice about dropping a nuclear bomb on such a target. The reality is we could not operate in that area for years, because of fallout, because of damage. If your goal were to ultimately destroy and occupy an opposing foe, why would you essentially create a situation where you could not even operate in the area? The other thing about this whole approach to the RNEP is it fails to recognize that we have precision conventional weapons that may not be able to reach down 900 feet, but certainly these weapons can be used to deal devastating blows to the communication networks that serve these facilities and to the entrances. Eventually there has to be someplace where you go into these tunnels. Those facilities, if they can be identified, can be shut off by conventional munitions. The goal is to neutralize the target, and that can be done, I think, more readily by conventional weapons, particularly conventional precision weapons. So the need for this system on a practical basis is not at all compelling to me, and I do not believe it is compelling to the more thoughtful people in the military, those who are thinking about these types of situations. There is another factor, too. Again, the presumption is that we are going to have a nuclear device that we are going to use to take out a deeply buried target, which could be in a circumstance where we would be contemplating the first use of a nuclear weapon against one of these targets. We have to be very sure that we have the kind of intelligence that will support such extraordinary use of military power. If we reflect back on Operation Iraqi Freedom, we thought there were nuclear weapons--some people did. We thought there were chemical weapons and thought there were biological weapons. Secretary Powell was before the United Nations talking about these mobile biological vans. The reality is our intelligence was very poor; certainly not sufficient, in my view, to justify the use of a nuclear weapon like this. So there is a further complication about ever using one of these weapons; and that is, would we have the intelligence to support, particularly, the first use of a nuclear weapon to take out a target like this? We do not need to spend $1 billion to develop to the point of production an RNEP. I think our colleagues in the House, on a bipartisan basis, figured this out last year. We should be equally astute and adroit. We have conventional precision weapons that can deal lethal blows to these types of installations. I think we should not contemplate using nuclear weapons, such weapons as the B-83, which would yield vast areas of a particular country literally uninhabitable for months if not years. Also, by the way--which we found from our adversaries, particularly from our adversaries in Iraq--they are fairly astute about trying to counteract our weapons with their tactics. If you were someone who was afraid that the United States might have such a weapon like an RNEP and use it against you, I think there would be a strong temptation to put that deeply buried target underneath a city, underneath a historic or religious site, so that our choices would be further complicated by the fact that we would be delivering a nuclear device in an area where there could be significant population or significant reasons to avoid the detonation of a nuclear bomb. I think this funding is not appropriate. I join Senator Kennedy in urging that we move to drop it. I urge my colleagues to vote for the Kennedy amendment, and I yield the floor.

Mr. REED

Mr. REED. Mr. President, I thank the chairman.

Mr. REED. Mr. President, if I may respond, I appreciate not only the leadership of the chairman, but also his incredible commitment to our military forces. My point is very simple. I think we should finish this bill. We have waited weeks to go on it. But I also point out that if other matters come before the Senate, as Senators we have the full right to use all of the procedures, we have the right to debate. I would hate to be in a situation--and I hope that is not the case--where if we attempt, let's say, next week to engage in extensive and productive debate about a particular issue, we are not reminded that we are holding up the Defense authorization bill; that no one will suggest our ability to debate an issue which, frankly, is on the agenda not through our desires but others', would somehow be interpreted as slowing down our ability to respond to the needs of our soldiers, sailors, marines, air men and women. I am on record saying I would like to see us finishing this bill without interruption, but if there is an interruption, then this Senate and our colleagues have to have the right to fully debate any measure that comes before the floor, and I don't think we should be--and maybe I am anticipating something that will not evolve--be put in the position of being hurried off the floor because the Defense bill has to come back. We have the bill before us now. I think we should stick to the bill.