Jay Rockefeller

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Madam President, I ask my colleagues to join me today in commemorating the 125th anniversary of the National Crittenton Foundation and the Crittenton Family of Agencies. For the last 113 years, Florence Crittenton Services Inc. in Wheeling, WV has served thousands of teen mothers and their children as the State's only maternity home--one that is nationally recognized for its unique gender-responsive program. In recognition of its continuing contribution to the State, the State Journal recently named this innovative agency one of the ``55 Good Things About West Virginia.'' The honor is well deserved. In 1895, Florence Crittenton Services Inc. first opened its doors to provide shelter and support for ``wayward'' women in crisis. Over the past century, it has evolved from being a group home and adoption agency to a nationally-accredited and respected therapeutic residential program that serves abused, neglected, and behaviorally-challenged girls. Among its many forward-thinking programs is Wellspring Family Services, a comprehensive, community-based behavioral health, parenting support and education service provider. Cradles to Crayons, a child care program for young mothers in care, provides a structured and safe environment for children while their parents complete their education and participate in therapeutic programming. This child care program continues today and serves the child care needs of Crittenton residents and community members. Grounded in its original mission to help children and families in need achieve self-sufficiency, all of the agency's programs pay close attention to the underlying challenges that keep young women from succeeding, including addiction, domestic violence, and sexual abuse. Throughout its history, Florence Crittenton Services, Inc. has maintained a unique cooperative relationship with The National Crittenton Foundation. This partnership is based on founder Charles Crittenton's and Dr. Kate Waller Barrett's belief that the most effective way to address compelling national social issues was through a network of affiliated independent, local organizations supported by a national body. More than a century after Charles Crittenton founded his first home, the National Crittenton Foundation is re-emerging as an active force for social change. The foundation and its agencies continue their work to break the cycles of intergenerational issues like teen pregnancy, violence and substance abuse through a mix of strength-based gender and culturally-specific services tailored to meet the needs of young girls in local communities. For years, I have worked to improve services and support of needy children and families, and I have been proud to work with the Florence Crittenton Society in Wheeling. As the National Crittenton Foundation and West Virginia's Florence Crittenton Services, Inc. come to Capitol Hill to celebrate 125 years of service to young women at risk and their children, I ask you to help me congratulate them on their achievements and thank them for their profound commitment to our children and our communities.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, today I honor a courageous and dedicated young West Virginian: Ms. Amy Stout. Before Amy even graduated high school, she joined the National Guard to help finance her college education. Shortly after Amy started her freshman year at Wesleyan, pursuing a degree in psychology, the events of September 11 took place. Within hours of that terrible event, Amy found herself guarding the wreckage of United Flight 93, near Shanksville, PA. Amy remained activated with the National Guard for a year, serving Stateside in the Pocono Mountains of Pennsylvania while working to complete her first semester of school. Then, in the fall of 2002, Amy was once again activated, but this time she was sent to Camp Anaconda, north of Baghdad. At a time when her fellow Wesleyan students were enjoying college life, Amy was serving her country as a gunner, providing security for 300-mile convoys. After her 12-month deployment, Amy returned to Wesleyan, determined to help people in as direct a way as possible. She changed her major to nursing. Amy continued to pursue her nursing degree until, once again, the military called and Amy was sent back to Iraq, this time for 18 months. Amy's tour of duty ended on September 10, 2007, and she was back at Wesleyan the very next day, September 11, exactly 6 years after she was first activated by the National Guard. In May 2008, Amy Stout will graduate with her nursing degree. She is a testament to the incredible bravery of our soldiers who sacrifice so much to protect this country. Her determination is an inspiration to her fellow students and her fellow West Virginians. She has served this nation with great honor and dignity and soon she will be a tremendous asset to the nursing profession. It is with great pride that I congratulate her on her upcoming graduation and thank her for her service to this Nation.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I rise today to introduce legislation designed to fix the personnel laws that cover the Department of Veterans Affairs, VA, health care professionals, including registered nurses, physicians, physician assistants, dentists, podiatrists, optometrists, and dental assistants. I am proud to have the support of my colleagues, Senators Webb, Brown and Mikulski. This legislation is the companion bill to the pending House bill sponsored by House Veterans' Affairs Chairman, Congressman Bob Filner. Our goal is to support the VA health care professionals who work hard to provide quality care to our veterans. The bill seeks to return to the partnership agreement of the 1990s between VA management and workforce. Flexible scheduling and basic fairness from management are key issues to recruit and retain a strong workforce. Almost 22,000 of the registered nurse caring for our veterans will be eligible to retire by 2010. Even more stunning is that 77 percent of all resignations of nurses occur within the first 5 years. This is a clear signal that more must be done to retain VA nurses and quality health care staff. Anyone involved in health care understands the important role that nurses play in the quality of care and patient satisfaction. The VA has several options. VA could invest more of its precious, limited funding on contract care--or, as we recommend, support this legislation and restore the partnership that will encourage our nurses and other health care professionals to stay in the VA system to care for our Nation's heroes. West Virginia has four VA Medical Centers, each with a dedicated team of health care professionals. I have met with the nurses and other professionals to hear their requests for flexible scheduling. I believe that we should restore the management partnership and work hard to retain our dedicated team of health professionals for our aging veterans, and those newly returning from Iraq and Afghanistan with both physical and mental wounds of war that deserved experienced VA care.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I rise today to introduce legislation designed to fix the personnel laws that cover the Department of Veterans Affairs, VA, health care professionals, including registered nurses, physicians, physician assistants, dentists, podiatrists, optometrists, and dental assistants. I am proud to have the support of my colleagues, Senators Webb, Brown and Mikulski. This legislation is the companion bill to the pending House bill sponsored by House Veterans' Affairs Chairman, Congressman Bob Filner. Our goal is to support the VA health care professionals who work hard to provide quality care to our veterans. The bill seeks to return to the partnership agreement of the 1990s between VA management and workforce. Flexible scheduling and basic fairness from management are key issues to recruit and retain a strong workforce. Almost 22,000 of the registered nurse caring for our veterans will be eligible to retire by 2010. Even more stunning is that 77 percent of all resignations of nurses occur within the first 5 years. This is a clear signal that more must be done to retain VA nurses and quality health care staff. Anyone involved in health care understands the important role that nurses play in the quality of care and patient satisfaction. The VA has several options. VA could invest more of its precious, limited funding on contract care--or, as we recommend, support this legislation and restore the partnership that will encourage our nurses and other health care professionals to stay in the VA system to care for our Nation's heroes. West Virginia has four VA Medical Centers, each with a dedicated team of health care professionals. I have met with the nurses and other professionals to hear their requests for flexible scheduling. I believe that we should restore the management partnership and work hard to retain our dedicated team of health professionals for our aging veterans, and those newly returning from Iraq and Afghanistan with both physical and mental wounds of war that deserved experienced VA care.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I rise today with my esteemed colleagues--Senator Olympia Snowe of Maine and Senator Edward Kennedy of Massachusetts--to introduce a timely and vital piece of legislation, the Economic Recovery in Health Care Act of 2008. This bill will preserve access to health care for our most vulnerable citizens during this time of economic uncertainty. Earlier this week, Federal Reserve Chairman Ben Bernanke confirmed what we have all long-suspected--that the U.S. economy could be headed for a protracted recession. The tell-tale warning signs of recession have been visible in the states for at least a full quarter now. According to the National Governors Association, the recent economic downturn has left 18 States with budget shortfalls totaling $14 million in 2008, and 21 States project shortfalls totaling more than $32 million in 2009. If the current downturn follows the path of most recessions, between 35 and 40 States will face severe budget shortfalls in 2009. As a former Governor, who survived the tough times of the 1980s, I can attest to the enormous budget pressures States face when the economy slows. State revenues often evaporate rapidly during an economic downturn. Unlike the Federal Government, States cannot borrow infinite amounts of debt from China and other countries. By law, 49 States--including West Virginia--are required to balance their budgets and, in times of economic downturn, this task becomes significantly more difficult. Some of my colleagues may be wondering why health care is such a big deal when we have all these other problems to worry about--the mortgage crisis, the credit crunch, and a weak dollar. Well, I would say to my colleagues that we don't have to look very far for an answer to this very question. As we saw during the economic downturn of 2001-2003, decreased access to health care coverage was a huge crisis for working families. There was a huge loss in private health care coverage. Data from the Center for Studying Health System Change indicates that the proportion of the under-65 population with employer-sponsored coverage fell from 67 percent in 2001 to 63.4 percent in 2003. After adjusting for population growth, this means that nearly 9 million fewer people were covered by employer-sponsored health insurance during the recession than would have been the case if coverage rates remained unchanged. Medicaid also didn't fare very well during the last recession. It is consistently the first program slated for cuts during a state budget squeeze. According to the Kaiser Commission on Medicaid and the Uninsured, between fiscal years 2002 and 2005, the loss of revenue led all 50 States to reduce Medicaid provider payment rates and implement prescription drug cost controls, 38 States to reduce Medicaid eligibility and 34 States to reduce benefits. These cuts placed a huge burden on Medicaid providers and the working families who depend on Medicaid to meet their health care needs. While Congress did ultimately respond to the last economic downturn by providing $20 billion in State fiscal relief in 2003, and this relief went a long way to preserve health care coverage for millions of working families, we cannot discount the fact that one million low- income people had already lost Medicaid coverage because we waited two years into the recession to act. In response to this current downturn, state legislatures are already beginning to limit access to Medicaid and CHIP in preparation for the harsh economic times ahead. According to the Center on Budget and Policy Priorities, at least 10 states have implemented or are considering budget cuts that will reduce access to Medicaid or CHIP for working families. For example, Nevada has capped the State's CHIP program at its approximate current number of enrollees. As a result, hundreds of children will be denied coverage. California has proposed increasing co-payments and premiums for children enrolled in CHIP and reducing CHIP dental services. I want to remind my colleagues that it was only 1 year ago that millions across the country mourned the death of 12-year- old Deamonte Driver, whose lack of dental care led to fatal brain infection. At least four States are cutting or proposing to cut Medicaid services for the elderly or disabled, or significantly increasing the cost of these services. For example, Maine has proposed cuts that will remove 7,000 mentally ill and poor adults from Medicaid; and Rhode Island is requiring low-income elderly people to pay more for adult daycare. Several States have proposed reductions in or delayed payments to providers. For example, New Jersey has proposed a reduction in funding for hospital charity of 15 percent, which will impact hospitals' ability to care for some of the State's most vulnerable residents. There is no question that our States are in economic peril. However, children don't stop getting sick just because the economy slows. Seniors don't suddenly stop needing long-term care services simply because the economy slows. Instead, the need for access to Medicaid and CHIP grows during times of economic uncertainty, and we must act to ensure that Medicaid and CHIP coverage is available when families need it the most. The Economic Recovery in Health Care Act provides the timely, targeted, and temporary Federal response necessary to avoid a health care crisis during this current economic slowdown. Our legislation accomplishes this objective in two ways. First, our bill responds to the Medicaid administrative regulations recently proposed by the administration, which, if allowed to go into effect, would further aggravate the impact of the economic downturn on States and working families. The Congressional Budget Office estimates that these regulations would reduce Federal Medicaid matching payments by approximately $18 billion over 5 years and $42 billion over 10 years. However, State reports to the House Oversight Committee indicate that the cost shift to States could be far greater. Now is a time when States need greater financial support from the Federal Government, not less financial support and more restrictions that make providing quality care to those most in need nearly impossible. Our bill will preserve access to Medicaid for seniors, pregnant women, individuals with disabilities, and children during the economic downturn by temporarily extending--through April 1, 2009--the Medicaid moratoria on payments to public providers, graduate medical education, school-based services, and rehabilitative services that Congress has already enacted. The Economic Recovery in Health Care Act would also preserve access to Medicaid by delaying--through April 1, 2009-- implementation of the following additional Medicaid regulations, which are already in effect or scheduled to go into effect in the near future: targeted case management, allowable provider taxes, outpatient clinic and hospital services, and the Departmental Appeals Board rule. Our bill would also preserve access to CHIP for low-income children by implementing a 1-year moratorium on the August 17 CHIP guidance. The second major component of our legislation is targeted State fiscal relief. Leading economists have found that targeted State aid would generate increased economic activity of $1.36 for each dollar of cost. Our legislation provides approximately $12 billion in targeted State fiscal relief, equally divided between an increase in Federal Medicaid matching payments and targeted grants to States. Unlike the State fiscal relief provided in 2003 and previous fiscal relief proposals offered this year, each State must meet certain criteria in order to qualify for an increase in federal matching payments and the targeted grants. The criteria would be based on the average of State ranks in unemployment, food stamp participation, and foreclosures. These three economic indicators closely align with State budget deficits and would allow us to more appropriately target State fiscal relief to the States with the most need. I urge my colleagues to strongly support this important legislation. Medicaid is a Federal-State partnership, and the Federal Government bears the primary responsibility for ensuring that the Federal guarantee of health benefits is not denied to eligible working families, particularly during an economic downturn. With all the worries that working American families are currently facing, they should not have to add health care to their growing list of concerns. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I rise today to introduce the bipartisan reauthorization and expansion for the Temporary Assistance for Needy Families, TANF, Supplemental Grants with my colleague, Senator Lindsey Graham of South Carolina. The TANF Supplemental Grants will expire this year without action. Currently 17 States depend on these grants, but our legislation would expand and improve on the grants. Welfare reform was passed in 1996, and since then neither the basic TANF Block Grant nor the TANF Supplemental Grant has been increased. This means that the value of the TANF funding in constant dollars has declined by almost 20 percent. In 2010, Congress will need to review the entire TANF program, but between now and then our legislation seeks to provide modest help for States that are struggling to serve vulnerable children in needy families. Our legislation would provide a modest increase for any State which spends less than the national average per underprivileged child on TANF activities of Federal and State resources. This would help States that cannot meet the average ``catch up,'' and provide more services to underprivileged children. To be reasonable, the increase is capped at $10 million or 10 percent of their existing TANF grant for States that have never received a TANF Supplemental Grant. For States that are receiving a TANF Supplemental Grant, they could qualify for up to $2.5 million in additional funding or 2.5 percent of their existing TANF grant. This is a modest but important effort to help every state provide for vulnerable children who are receiving less than that national average for an underprivileged child. This proposal should help the most vulnerable at a time when the economic slowdown is creating more obstacles for families to make a successful transition from welfare to work. In West Virginia, our neediest children are not even receiving the average amount spent on America's underprivileged children, and that is true in too many States. Our children and families are struggling to meet the bold goals of welfare reform with fewer resources and tougher standards. This reauthorization is a chance to help those States that are struggling to achieve the national average for funding. It would be base funding for underprivileged children rather than population growth. It will target resources to vulnerable children.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I rise today to introduce the bipartisan reauthorization and expansion for the Temporary Assistance for Needy Families, TANF, Supplemental Grants with my colleague, Senator Lindsey Graham of South Carolina. The TANF Supplemental Grants will expire this year without action. Currently 17 States depend on these grants, but our legislation would expand and improve on the grants. Welfare reform was passed in 1996, and since then neither the basic TANF Block Grant nor the TANF Supplemental Grant has been increased. This means that the value of the TANF funding in constant dollars has declined by almost 20 percent. In 2010, Congress will need to review the entire TANF program, but between now and then our legislation seeks to provide modest help for States that are struggling to serve vulnerable children in needy families. Our legislation would provide a modest increase for any State which spends less than the national average per underprivileged child on TANF activities of Federal and State resources. This would help States that cannot meet the average ``catch up,'' and provide more services to underprivileged children. To be reasonable, the increase is capped at $10 million or 10 percent of their existing TANF grant for States that have never received a TANF Supplemental Grant. For States that are receiving a TANF Supplemental Grant, they could qualify for up to $2.5 million in additional funding or 2.5 percent of their existing TANF grant. This is a modest but important effort to help every state provide for vulnerable children who are receiving less than that national average for an underprivileged child. This proposal should help the most vulnerable at a time when the economic slowdown is creating more obstacles for families to make a successful transition from welfare to work. In West Virginia, our neediest children are not even receiving the average amount spent on America's underprivileged children, and that is true in too many States. Our children and families are struggling to meet the bold goals of welfare reform with fewer resources and tougher standards. This reauthorization is a chance to help those States that are struggling to achieve the national average for funding. It would be base funding for underprivileged children rather than population growth. It will target resources to vulnerable children.

Mr. ROCKEFELLER. Mr. President, I rise today with my esteemed colleagues--Senator Olympia Snowe of Maine and Senator Edward Kennedy of Massachusetts--to introduce a timely and vital piece of legislation, the Economic Recovery in Health Care Act of 2008. This bill will preserve access to health care for our most vulnerable citizens during this time of economic uncertainty. Earlier this week, Federal Reserve Chairman Ben Bernanke confirmed what we have all long-suspected--that the U.S. economy could be headed for a protracted recession. The tell-tale warning signs of recession have been visible in the states for at least a full quarter now. According to the National Governors Association, the recent economic downturn has left 18 States with budget shortfalls totaling $14 million in 2008, and 21 States project shortfalls totaling more than $32 million in 2009. If the current downturn follows the path of most recessions, between 35 and 40 States will face severe budget shortfalls in 2009. As a former Governor, who survived the tough times of the 1980s, I can attest to the enormous budget pressures States face when the economy slows. State revenues often evaporate rapidly during an economic downturn. Unlike the Federal Government, States cannot borrow infinite amounts of debt from China and other countries. By law, 49 States--including West Virginia--are required to balance their budgets and, in times of economic downturn, this task becomes significantly more difficult. Some of my colleagues may be wondering why health care is such a big deal when we have all these other problems to worry about--the mortgage crisis, the credit crunch, and a weak dollar. Well, I would say to my colleagues that we don't have to look very far for an answer to this very question. As we saw during the economic downturn of 2001-2003, decreased access to health care coverage was a huge crisis for working families. There was a huge loss in private health care coverage. Data from the Center for Studying Health System Change indicates that the proportion of the under-65 population with employer-sponsored coverage fell from 67 percent in 2001 to 63.4 percent in 2003. After adjusting for population growth, this means that nearly 9 million fewer people were covered by employer-sponsored health insurance during the recession than would have been the case if coverage rates remained unchanged. Medicaid also didn't fare very well during the last recession. It is consistently the first program slated for cuts during a state budget squeeze. According to the Kaiser Commission on Medicaid and the Uninsured, between fiscal years 2002 and 2005, the loss of revenue led all 50 States to reduce Medicaid provider payment rates and implement prescription drug cost controls, 38 States to reduce Medicaid eligibility and 34 States to reduce benefits. These cuts placed a huge burden on Medicaid providers and the working families who depend on Medicaid to meet their health care needs. While Congress did ultimately respond to the last economic downturn by providing $20 billion in State fiscal relief in 2003, and this relief went a long way to preserve health care coverage for millions of working families, we cannot discount the fact that one million low- income people had already lost Medicaid coverage because we waited two years into the recession to act. In response to this current downturn, state legislatures are already beginning to limit access to Medicaid and CHIP in preparation for the harsh economic times ahead. According to the Center on Budget and Policy Priorities, at least 10 states have implemented or are considering budget cuts that will reduce access to Medicaid or CHIP for working families. For example, Nevada has capped the State's CHIP program at its approximate current number of enrollees. As a result, hundreds of children will be denied coverage. California has proposed increasing co-payments and premiums for children enrolled in CHIP and reducing CHIP dental services. I want to remind my colleagues that it was only 1 year ago that millions across the country mourned the death of 12-year- old Deamonte Driver, whose lack of dental care led to fatal brain infection. At least four States are cutting or proposing to cut Medicaid services for the elderly or disabled, or significantly increasing the cost of these services. For example, Maine has proposed cuts that will remove 7,000 mentally ill and poor adults from Medicaid; and Rhode Island is requiring low-income elderly people to pay more for adult daycare. Several States have proposed reductions in or delayed payments to providers. For example, New Jersey has proposed a reduction in funding for hospital charity of 15 percent, which will impact hospitals' ability to care for some of the State's most vulnerable residents. There is no question that our States are in economic peril. However, children don't stop getting sick just because the economy slows. Seniors don't suddenly stop needing long-term care services simply because the economy slows. Instead, the need for access to Medicaid and CHIP grows during times of economic uncertainty, and we must act to ensure that Medicaid and CHIP coverage is available when families need it the most. The Economic Recovery in Health Care Act provides the timely, targeted, and temporary Federal response necessary to avoid a health care crisis during this current economic slowdown. Our legislation accomplishes this objective in two ways. First, our bill responds to the Medicaid administrative regulations recently proposed by the administration, which, if allowed to go into effect, would further aggravate the impact of the economic downturn on States and working families. The Congressional Budget Office estimates that these regulations would reduce Federal Medicaid matching payments by approximately $18 billion over 5 years and $42 billion over 10 years. However, State reports to the House Oversight Committee indicate that the cost shift to States could be far greater. Now is a time when States need greater financial support from the Federal Government, not less financial support and more restrictions that make providing quality care to those most in need nearly impossible. Our bill will preserve access to Medicaid for seniors, pregnant women, individuals with disabilities, and children during the economic downturn by temporarily extending--through April 1, 2009--the Medicaid moratoria on payments to public providers, graduate medical education, school-based services, and rehabilitative services that Congress has already enacted. The Economic Recovery in Health Care Act would also preserve access to Medicaid by delaying--through April 1, 2009-- implementation of the following additional Medicaid regulations, which are already in effect or scheduled to go into effect in the near future: targeted case management, allowable provider taxes, outpatient clinic and hospital services, and the Departmental Appeals Board rule. Our bill would also preserve access to CHIP for low-income children by implementing a 1-year moratorium on the August 17 CHIP guidance. The second major component of our legislation is targeted State fiscal relief. Leading economists have found that targeted State aid would generate increased economic activity of $1.36 for each dollar of cost. Our legislation provides approximately $12 billion in targeted State fiscal relief, equally divided between an increase in Federal Medicaid matching payments and targeted grants to States. Unlike the State fiscal relief provided in 2003 and previous fiscal relief proposals offered this year, each State must meet certain criteria in order to qualify for an increase in federal matching payments and the targeted grants. The criteria would be based on the average of State ranks in unemployment, food stamp participation, and foreclosures. These three economic indicators closely align with State budget deficits and would allow us to more appropriately target State fiscal relief to the States with the most need. I urge my colleagues to strongly support this important legislation. Medicaid is a Federal-State partnership, and the Federal Government bears the primary responsibility for ensuring that the Federal guarantee of health benefits is not denied to eligible working families, particularly during an economic downturn. With all the worries that working American families are currently facing, they should not have to add health care to their growing list of concerns. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I want to take this opportunity to express my complete support for H.R. 4040, the Consumer Product Safety Commission Reform Act, which passed the Senate yesterday with an overwhelming bipartisan majority. Regrettably, I was unable to vote on final passage of H.R. 4040, as I had a previous commitment that prevented me from being there. However, I believe so strongly in the Government's responsibility to maintain the highest level of product safety that I wanted the Congressional Record to reflect how pleased I am that the Senate passed H.R. 4040, after substituting the text of S. 2663 as amended, and to extend my congratulations to the bill's principal sponsors, Senator Mark Pryor and Senator Ted Stevens. Throughout the past few years, our Nation has experienced an unfortunately large number of recalls on products that have been imported into our country. Of particular concern to me, and to many of my colleagues, as well as to parents and all citizens across the country are the millions of children's toys that were recalled due to dangerous levels of lead and other toxins or dangerously defective product design or manufacture. These recalls left many parents wondering whether any of the toys they purchased for their children were safe. It was time for the Senate to work together to protect America's consumers and children, and with the passage of H.R. 4040, we have done that and, I believe, done it well. Much blame has been placed on the U.S. Consumer Product Safety Commission, CPSC, for failing to adequately protect consumers from dangerous products entering the United States. Whether this was being too lax with regard to negligible product safety standards for toys and other items produced abroad, or ineffective and often toothless oversight of the manufacturing and design process wherever the toys were made, there is more than enough blame to spread around. While I certainly recognize the important contributions of the dedicated career employees at the CPSC, it is clear that the CPSC lacks the adequate resources, and political will, to combat this growing problem. With the passage of H.R. 4040, the Senate has taken a very good step toward addressing many of the problems we have seen in recent years by increasing funding for the CPSC, increasing penalties for manufacturers that violate consumer protection laws, reducing the levels of lead in children's products, requiring labeling so that parents can know when their children's toys have been recalled, and allowing State attorneys general to help enforce Federal consumer protection laws for the benefit of citizens throughout West Virginia and across the Nation. Mr. President, again I would like to express my support for H.R. 4040, as amended by the remark on March 6, 2008, and thank my colleagues for all of their hard work to pass legislation that will better protect consumers and children from dangerous products.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I am proud to join my friend Senator Snowe and our colleagues Senator Pryor, Senator Collins, and Senator Kerry in introducing the Green Chemistry Research and Development Act. This legislation is a bipartisan effort to promote the efforts of some of the most brilliant minds in academia, government, and industry to both reduce the environmental impacts of common chemical processes and to foster the development of a new generation of environmentally responsible chemical products. My fellow cosponsors and I seek to help the chemical industry reduce its use and production of hazardous substances and the overall effect on the environment of the business of chemistry. As it was in the past when Senator Snowe and I previously introduced legislation to promote ``Green Chemistry,'' this legislation is supported by the chemical, pharmaceutical, and biotechnology industries and academic institutions because it is designed to hasten the attainment of a goal we all share: making the production of the chemical products we need in ways not detrimental to the environment using engineering processes that save both money and the planet. The products and engineering processes we believe will be developed will produce benefits across the entire economy. What we call ``green chemistry'' is nothing more than what every industry in the United States should strive to be. Chemical companies employing green chemistry techniques will challenge their best scientists, engineers, and product developers to make new products that are better suited to the task for which they are created than the products they will replace using state-of-the-art manufacturing that minimizes or completely eliminates both the use of environmentally unsustainable substances as inputs or results in environmentally unsustainable substances as byproducts. Our purpose in introducing this legislation is to make certain that the nascent green technology revolution does not bypass the chemical industry by providing significant and ongoing support for green chemistry research, development, demonstration, education, and technology transfer. When enacted, the Green Chemistry Research and Development Act will create a Federal Interagency Working Group--made up of representatives from the National Science Foundation, the National Institute of Standards and Technology, the Department of Energy, and the Environmental Protection Agency--to fund and oversee research through merit-based grants to universities, industry, and nonprofit organizations to promote the development and adoption of green chemistry processes and products. Further, the Interagency Working Group will help expand education, training in, and the flow of information about sustainable chemical engineering, including development of green chemistry curricula for undergraduate and graduate students. Finally, Federal resources in funding and technical expertise will seek to identify barriers to the commercialization of the products of a rejuvenated, more environmentally responsible domestic chemical industry. These are challenging times for the domestic chemical industry. High prices for necessary feedstocks and transportation to customers, along with all the other hurdles that must be overcome in the global economy, have put this industry, which began here and which supplied vital products to customers the world over, at risk of being another industry the United States could lose to our foreign trading competitors. However, this industry meets challenges every day. This legislation will allow American chemical companies to once again demonstrate a passion for excellence, safety, and innovation that will be a source of envy around the world and create a generation's worth of good-paying jobs that States like West Virginia can build an economy around. Mr. President, I call on my colleagues to take up and pass the Green Chemistry Research and Development Act.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, my name has been invoked frequently here over the last several weeks as passing a bill which was not favored by the majority of the people of my aisle, and the phrase actually was used by the majority leader, who is never wrong, that we did what the President wanted. I didn't do what the President wanted. I did what I thought was the right thing to do. I was joined by a variety of my colleagues, including the Presiding Officer, who reserved the right to have other views on the floor, which he did, but ended up voting for the bill. What absolutely baffles me is that we are literally--we can do this FISA bill. I am meeting tomorrow morning with the chairman of the House Intelligence Committee, who may be the only House member in town--I have no idea, but I don't care because he is the chairman--on what we can do to save this. I am absolutely convinced that we can have--in the hearing this afternoon, the Presiding Officer heard me put this to the Director of National Intelligence, who couldn't answer it because it was not a policy question, but more of a political question. I said: You are going to get the majority of your information all the way through August. The President praised our bill and then came out the next day and said: Of course, if the House doesn't pass it, we are going to lose our intelligence and we will be vulnerable to the terrorists. That was a misstatement, I think an annoying misstatement. I don't understand. I simply don't understand, if something is good and if the President is willing to sign a bill which this Senator in his conscience feels is right, and it takes 15 days to do it, what the minority leader needs to understand--and he served in the House. I am sure he understands that they have now been jammed twice. They have been jammed. There is something called human nature, and it is not illegal to talk about human nature on the floor of the Senate. They have been jammed. They have been pushed down to a 2-day period or a 3-day period when they had to make a decision. They resent that. But if they were given a period of time, they would come, in my judgment, to where we are, and the bill would go to the President and he would sign it. Now, let me say something more. What people have to understand around here is that the quality of the intelligence we are going to be receiving is going to be degraded. It is going to be degraded. It is already going to be degraded as telecommunications companies lose interest. Everybody tosses that around and says: Well, what do you mean? I say: Well, what are they making out of this? What is the big payoff for the telephone companies? They get paid a lot of money? No. They get paid nothing. What do they get for this? They get $40 billion worth of suits, grief, trashing, but they do it. But they don't have to do it, because they do have shareholders to respond to, to answer to. There is going to be a degrading of the nature of our intelligence in some very crucial areas if we follow the path that the minority leader is suggesting, because we will go right back to where we were last August, and that will be a further jolt to the telecommunications companies, because they will understand that you cannot count on the Congress, you cannot count on us to make policy which will give stability to their--not government agencies but to their corporations. Fifteen days. We are off for a week, so maybe it has to be 25 days. I don't know. I don't care about that. We could have the same bill on this floor from the House. I am convinced of it. It is human nature. Give them a chance to have a grudge. I am going to meet with the chairman tomorrow. Let him rip into me for not giving the House an adequate chance for the second time to discuss this matter. But I am absolutely convinced that we could have that bill on the floor in this body and pass it and send it to the President. Why they don't want to do that, I do not know. I yield the floor.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Madam President, I rise today to support a short- term extension of the Federal Aviation Administration's contract authority and its collection and expenditure authority through to June 30, 2008. Because of the urgent need to extend the current aviation taxes and related budget provisions, I am supporting this legislation. But I am becoming convinced that Congress cannot pass S. 1300, the Aviation Investment and Modernization Act, authored by then-Senator Lott and myself. I believe that Congress should pass a long-term extension of the existing aviation taxes in order to give the FAA the funding stability it needs while Congress moves forward with a comprehensive review of how the agency is funded. I cannot support the current funding regime, as it will not provide the agency with the resources it needs to build the Next Generation Air Traffic Control System. In lieu of a long-term extension, I would have preferred an extension until the end of this fiscal year, September 30, 2008, as it would have given the FAA and our Nation's airports a greater degree of reassurance that they will receive the full $3.5 billion in airport funding that Congress approved last year. The short-term extension before us today is not only crucial to the ongoing functioning of the FAA, it is necessary because without it the agency faces a potential crisis. Without adopting this legislation, the FAA would not be able to pay 4,000 employees after February 29, 2008. And that is an unacceptable action. The last thing the agency needs right now is to endure a potentially debilitating staffing crisis. To preserve these jobs this short-term extension must be passed today. This country's aviation system is the safest in the world. However, in remaining vigilant to maintain this standard we must ensure the FAA has the resources to continue its efforts in modernizing our air traffic control system and in updating the more antiquated parts of our aviation infrastructure. The passing of this extension today will allow these vital investments to continue. I look forward to working with my friend and distinguished colleague, Senator Kay Bailey Hutchison, and members of the Senate's Finance and Commerce Committees in making sure the FAA has the resources and tools it needs to continue making our aviation system the safest in the world. It is crucial we work together to provide the FAA with the certainty it needs in these challenging times for the aviation sector. This will not only benefit the FAA but the industry generally and the many millions of Americans it serves each year.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I almost have no words to praise the Senator from Rhode Island for the eloquence and strength of his speech, which was not only grounded in very deep substance but was delivered with elegiac nature that both culled the human spirit as well as grounded the futility of torture. I congratulate him. I also rise strongly in support of section 327 of the intelligence authorization conference report. I recognize it will be controversial. I don't care. It is important that some background on this section be provided. Some of it has been this morning. During the conference on the authorization bill, the conferees adopted an amendment that would require the intelligence community to conduct its interrogation in accordance with the terms of the U.S. Army Field Manual. The full membership of the House Intelligence Committee and the Senate Intelligence Committee served on the conference committee. So it was a majority of those two committees that came to that conclusion. Section 327 of the intelligence authorization conference report directly parallels the provision in the Detainee Treatment Act that forbids subjecting anyone in Department of Defense custody to any treatment or technique of interrogation not authorized by and listed in the U.S. Army Field Manual on intelligence interrogation. Section 327 applies these same restrictions to the intelligence community at large. The effect of section 327 is, therefore, to require all of the U.S. Government operate their interrogation programs under a single interrogation standard, the standard set by the U.S. military. Adopting the military standard for interrogation as the universal standard makes sense, and I hope some of my colleagues are listening. It is the members of the military who most benefit from reciprocal obligations of the Geneva Convention requiring humane treatment of prisoners and who are most likely to be subjected to retaliation based on the failure of the United States to follow those obligations. That statement is frequently made, and then it is frequently absorbed and discarded. Think about it. Retaliation is the way of the world, and it will be no different here. What we do to others, they will do to us. The U.S. Army Field Manual on interrogation was revised in September 2006 after significant interagency review. This included a review by the Central Intelligence Agency. By providing a number of approach strategies such as the incentive approach, emotional approach, and the Mutt-and-Jeff approach, the Army Field Manual gives interrogators significant flexibility to shape the interrogation. It doesn't delineate exactly how. It gives them a lot of flexibility. The Army Field Manual also explicitly prohibits, as we know, waterboarding, forcing detainees to be naked, inducing hypothermia or heat injury or subjecting a detainee to beatings, as well as a number of other things. All this raises the question at the heart of this debate: Should the Central Intelligence Agency, the well-known CIA, be allowed to use coercive interrogation techniques to obtain information from al-Qaida detainees? This debate is about more than legality. It is about more than ensuring that the intelligence community has the tools it needs to protect us. It is also about morality, the way we see ourselves, who we are, who we want to be as a nation, and what we represent to the world. What we represent to the world has a direct effect on the number of people who determine they want to join the jihadists movement and come after us. It is a decision that can and should be left to Members of Congress who are the representatives of the American people. In the early period of the CIA program's existence, I repeatedly called--and I am extremely frustrated by this, extremely frustrated--for an Intelligence Committee investigation into the Agency's detention interrogation practices. That was in the committee. I was, at that point, vice chairman and could not control, obviously, the vote. So on vote margins of one, we lost. We could not get anything going in the way of studying the subject and investigation of the subject. Then I moved to the floor and once again could not get the committee to investigate the subject. I also tried to have the CIA brief all the members of the committee on the interrogation program. That also did not happen. I recognized that assessing the need for the CIA's enhanced interrogation techniques, the intelligence obtained from detainees, and the importance of maintaining America's position in the world were issues that we in Congress needed to debate and discuss, and, unfortunately, we did not. About a year and a half ago, the full membership of the Intelligence Committee was finally provided information about CIA's interrogation program. It is the whole point of oversight. They are not accustomed to us doing that--not just the CIA, but the intelligence community--having representatives of the people asking questions. They think it is an elite field for them. They are proud of their traditions. They fight among themselves, and they do not build into their thinking what it is that the Congress might feel about this. About a year and a half ago, as I say, we were brought into their interrogation program. Since that time, our committee has held multiple hearings on that subject. We have done our best to learn as much as possible about the basis for and the consequences of CIA's program, as well as interrogation in more general terms. These briefings and hearings have led the committee to conclude that all agencies of the U.S. Government should be required to comply with a single standard for interrogation of detainees. The Army Field Manual provides a standard of humane treatment that indisputably complies with our international obligations under the Geneva Conventions, as well as with U.S. laws. The CIA has briefed the committee on several occasions about its interrogation of al-Qaida detainees. The CIA has described the basis for the program, and why they think it should be allowed to continue. Although the CIA has described the information obtained from its program, I have heard nothing--nothing--that leads me to believe that information obtained from interrogation using coercive interrogation techniques has prevented an imminent terrorist attack. This is true for a very simple reason. Once a terrorist is captured, his fellow plotters, understandably, change their plans. In other words, I do not believe the CIA has ever been in an actual ``ticking timebomb'' scenario, nor do I think it is ever likely to be placed in that situation. That does not mean the information obtained from the program has not been valuable. Of course information about al-Qaida is exceedingly valuable from an intelligence standpoint. It is bits and pieces of information that allow our intelligence professionals to assess al-Qaida's capabilities and to determine how best to protect ourselves as a nation. But, more to the point, I have not heard nor have I seen any evidence that supports the intelligence community's claim that using enhanced interrogation techniques is the only way to obtain this type of intelligence; that is, to get what they need to get. After 9/11, the intelligence community decided that coercive interrogation tactics were the best way to obtain intelligence. It was perhaps a little bit understandable then in terms of the general panic of the Nation. But the intelligence community--I say this gravely--did not take the time to research what interrogation techniques might be most effective to come to this conclusion, nor did they reach out to the interrogators with experience, particularly those questioning Islamic terrorists. They did not do that. They were going to do it their way. They simply assumed--and they simply still assume--that coercive interrogation techniques were the best way to obtain information. To this Senator, this was clearly a flawed approach. But at this point, the administration is so invested in the use of these techniques they can no longer psychologically or otherwise step back to assess what methods are most effective to obtain intelligence. They go by the mantra, they go by what has been done before. To address this question, the committee explored how other Government agencies conduct interrogation. The committee considered critical interrogations of individuals who do not want to disclose information-- people who are hardheaded and do not want to talk--interrogations where obtaining information can prevent widespread injury or death. Every day, military interrogators in Iraq and Afghanistan question individuals with information that can save lives--every single day-- questions about where explosive devices are hidden, where captured soldiers have been taken, or where caches of weapons are stored, and a lot more. Now, the CIA loves to argue: Oh, but they are just 18- to 20-year-old kids. They don't have the experience. We have experience. We have experience. We have been at it. We are the professionals. They did that at our public, open threats hearing a week or so ago. Now, there is something called the FBI. They deal with pretty bad people, too. Their agents face life-and-death situations in both the world of terrorism and every-day criminality. Some of the individuals the FBI interrogate are senior leaders, individuals who are committed to staying silent and not sharing the information they possess. In fact, FBI agents recently questioned the top al-Qaida leaders who were formerly in CIA custody, gathering enough information from those al- Qaida leaders to build cases for trial, which we have recently read about. Some of these FBI agents have been conducting interrogations for two or three decades. That does not sound like 18- to 20-year-olds. They are, without question, recognized experts in their field, and they are remarkably effective at obtaining the information they need. Yet both the FBI and the military have told us they do not need enhanced interrogation techniques. Are these naive organizations? Are these people who do not know what they are talking about? Are these people who do not have stakes at hand? They are out on the battlefield. They are not only at Guantanamo. They are out on the battlefield. They have told the committee the interrogation techniques included in the Army Field Manual provide them with flexibility they need to obtain the information they need. Indeed, representatives from both the military and the FBI--both-- stated emphatically they have the tools they need to obtain necessary and reliable intelligence. After considering the CIA's arguments, and those of the FBI and the U.S. military, I am simply not convinced that harsh CIA tactics are necessary to obtain intelligence information. We also had people who were neutral who had experience in interrogation but were not currently in the practice of it. Their information to us also was that to terrorize, to torture, to manhandle, to do whatever, does not work. Human beings are human beings, and there are ways to get at them. In fact, coercive interrogation techniques can lead prisoners--and probably will in many cases--to say anything at all for the purpose of stopping the interrogation. As a result, coercive techniques can produce information that is fabricated and ultimately lead to flawed and misleading intelligence reports. This is not academic or hypothetical. Bad intelligence is a real danger. In the early years and months after 2001, we were awash with bad intelligence in Washington, DC, not all of it coming out of coercive techniques, but out of a complete misunderstanding of what intelligence is all about. In fact, there was a condescension from the administration about the role of intelligence in providing reliable information. So this is not an academic or hypothetical point. Bad intelligence is a real danger when employing coercive interrogation techniques. Intelligence reporting from an al-Qaida detainee--a very famous one named al-Libi he said Iraq was providing al-Qaida training in chemical and biological weapons prior to the war, which was publicly trumpeted by the President of the United States, by the Secretary of Defense, by the Secretary of State, and other senior administration officials as proof of operating links between Iraq and al-Qaida and, therefore, as a basis for going in to invade Iraq. Of course, basically all of us feel now that what the President said on March 23 in the other body, in his speech which gave him the authority to go to war, was based on intelligence which was almost entirely incorrect, and virtually everything he said, other than some rhetoric here and there--everything he said turned out to be wrong, and, therefore, was one of the most extraordinary disservices to the American people, not to speak of the dead and the wounded, that I can remember in my lifetime. But the Nation was inspired by the thought of fighting terror, and so on they went. Ultimately, al-Libi, who said these things, recanted. He recanted, and it was determined by the CIA that he had fabricated this central allegation of this link between al-Qaida and Iraq and other information based on his claim of mistreatment during the interrogations. So this is not an academic point. America went to war based on an alleged threat that was partially based on fabricated information produced under coercive interrogation. Apart from the question of efficacy and the risk of bad intelligence, the committee has explored the consequences of having a different, secret standard of interrogation for the intelligence community. This is where the need for section 327 becomes clear. Since the disclosure of information about the existence of secret prisons, and the use of harsh interrogation techniques, the reputation and moral authority of the United States have suffered dramatically. It is not a casual statement. One can say, yes, a lot of people have said that. But when that is true, that means that in Africa and Southeast Asia and South America and in the Middle East it becomes much easier for al-Qaida and those who would do us ill--and people within the United States who may belong to no formal organization like that at all--to develop anger, to develop a search for meaning to their lives because they do not see hope in their lives, and so they join. They join a group that will do damage. Some of our techniques have significantly increased the likelihood of that happening. Rather than being a world leader in human rights, we have become known for the unapologetic use of aggressive interrogation techniques. Indeed, even Canada has included us on a list of countries that engage in torture. Allowing the CIA to continue to use coercive interrogation techniques that are not part of the Army Field Manual is another piece of fodder for terrorist propaganda that cannot be underestimated. It is not just a rhetorical statement. It cannot be underestimated. It is no way to win the hearts and minds of the Muslim world. Ultimately, the war on terrorism is a war of ideas. Without a public standard of humane treatment, it is impossible to convince the world that we take our international obligations seriously, that we treat people humanely, and that we are a country of laws and we adhere to these laws. We must uphold those standards that differentiate us from the terrorists whom we are fighting. If our Government continues to use secret interrogation techniques that many are convinced constitute torture, America's standing in the world will continue to go down even more. Every time it goes down, there are more people who sign up to do us harm. The Israeli Supreme Court concluded, when it forbade the use of harsh interrogation techniques, the following: This is the destiny of democracy, as not all means are acceptable to it and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the rule of law, and recognition of an individual's liberty, constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. So in closing, passing section 327 is critical to regaining our moral authority in the world--which is a little bit too easy to say; it is going to take a lot more than that but it is a start--and convincing people that the United States believes in due process and human rights rather than fear. Having a separate standard of interrogations for the CIA--as much as it may want to have it, as much as it may have pride in having their secret standard, as much as they talk about 18- to 20- year-olds--is simply not worth the cost. I, therefore, urge my colleagues to support section 327. But no matter how the Senate votes on this motion, if it comes up, the CIA should very carefully consider the actions of the House and Senate Intelligence Committee. All Members need to consider what this large group concluded. The members of our committees are the only Members of Congress who have been briefed on the program and who are privy to the administration's best arguments in support of the program. That has to be said from time to time, and it sounds a bit arrogant, but there are people on the Intelligence Committees, both in the House and the Senate, who get briefings, and they know things that are not necessarily known to the rest of the Congress. Yet despite those briefings, a bipartisan majority of both the House and the Senate Intelligence Committees have determined that it is in the Nation's best interest to have only one standard of interrogation, a standard that can be publicly judged by the entire world, and this judgment by the representatives of the American people--that is, what we did in the conference committee--cannot be ignored. Mr. President, I yield the floor.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, action on the fiscal year 2008 authorization bill for intelligence is so long overdue I do not even know how to explain it. It is over 2 years overdue. It is a very important bill. Beginning in 1978, after the two congressional intelligence committees were established, the Congress passed an annual intelligence authorization bill every year. It does not sound interesting, but it has a great deal to do with how the intelligence community operates. We passed it for 27 consecutive years. And there was no exception to that. This legislation was one of very few nonappropriations measures that Congress has always considered ``must pass.'' Yet we have failed to pass it for the last number of years, and it is a matter of consternation. The importance of our intelligence programs to our national security has always been very obvious. The importance of strong congressional oversight of the intelligence activities has been equally obvious; although it has been spottier in the recent past, it no longer is. Then in 2005 and 2006, the bills reported out of the Senate Intelligence Committee were never brought to the Senate for consideration. There were internal reasons for that. I will spare the Presiding Officer from a discussion of those matters, and it is no longer important why. But we have to do this bill. The intelligence authorization bill is the tool the Congress uses to provide direction, specific direction, and to enforce the oversight that we do. It involves many of the most sensitive national security programs conducted by the U.S. Government. The 2008 authorization bill includes provisions to improve the efficiency of the intelligence community. It is a bland statement, but it is a very important series of parts. The bill produces better intelligence. We provided flexibility and authority to the DNI. We gave him a tremendous responsibility and then did not give him enough flexibility to exercise that responsibility. We do that in this bill. We require much greater accountability from the intelligence community. That is oversight. We require greater accountability from the intelligence community and its managers. We improve the mechanisms for conducting oversight of intelligence programs and we reform intelligence program acquisition procedures. All of that is oversight. Many of the provisions were included at the request of the National Intelligence Director in this bill. I always believe in reaching out to the professionals in doing this. The creation of the DNI position was the result of the most significant reform of the intelligence community in 50 years. And the current DNI, ADM Mike McConnell, is absolutely superb. The Office of Director of National Intelligence has now existed for 2\1/2\ years, and we have begun identifying ways to help the DNI better coordinate the 16 elements of the intelligence community, which are scattered around the Government, some of which do a very good job and some of which do not. Now he is pulling all of this together and he is doing a good job. Starting with personnel authority, this bill uses a much more flexible approach to authorizing personnel levels. Those are very delicate. We also give the DNI the ability to exceed personnel ceilings by as much as 3 percent because he needs to have that. He is in the process of trying to figure out how to adjust all of this and work it right. He needs flexibility. It also provides additional flexibility to encourage the DNI to convert contractor positions to Government employees when appropriate. Every Member knows the real power is the power of the purse. It is the same with the DNI. And this bill changes reprogramming requirements to make it easier to address, as they say, emerging needs in critical situations, a crisis. We give him the financial flexibility to do that. He needs that flexibility, and he now will have it if we pass this bill. It authorizes the DNI to use interagency funding amongst his various agencies that he oversees to establish national intelligence centers if he so chooses. The bill also allows the DNI to fund information-sharing efforts across the intelligence community. That was the whole point of the 9/11 Commission. That is the whole point of reducing stovepipes. Finally, it repeals several unneeded and burdensome reporting requirements. Frankly, we can use up a lot of people's time on something that we no longer need. We reduce some reporting requirements without in any way compromising accountability because oversight is the whole point of this bill. As it increases the authority of the DNI, the bill also improves oversight of the intelligence community in other ways. The bill creates a strong independent inspector general in the office of the DNI. It has to be confirmed by the Senate. That is called oversight. Confirmed by the Senate. That means it has to report to the committee. Accountable to the committee. It has to tell us the truth. Confirmation allows inspectors general to do very difficult things within their own departments that maybe some of the leaders will not do. It establishes statutory inspectors general in the National Security Agency, the NRO, the NGA and the Defense Intelligence Agency. So these are all there. They are all accountable. They are all oversight tools that we want. The bill also gives the Congress more oversight of the major intelligence agencies by requiring Senate confirmation of the Directors of NSA and NRO. Right now we do not have to confirm them. If we do not confirm, that means they do not have the same relationship with the Senate. We confirm the CIA, but we do not confirm the NSA. You tell me, particularly after we passed the FISA bill yesterday, how is it possible that we would not be able to confirm the head of the National Security Agency as well under this bill? We can, which makes him accountable to us, which means he reports to us, which means we can do oversight over him much more aggressively. As we describe in our conference report: . . . of the need for NSA's authorized collection to be consistent with the protection of the civil liberties and private interests of U.S. persons. Through confirmation of the NSA Director, we can ensure that continues or starts to be so. As we increase the DNI's flexibility to manage personnel, we require an annual assessment. That sounds boring, but, no, it is not. It is very important--an annual assessment of personnel levels across the intelligence community: How are they distributed? Are they in the right place? Are people protecting their turf? The DNI is in charge of this. We want to give him all the support, and we want this all reported to us in our committee so we can watch it. We also required the inclusion of a statement that those levels are supported by adequate infrastructure, training, funding, and a review of the appropriate use of contractors, which has become a very interesting subject in these months and years. This bill also addresses an issue that has concerned the committee for a long time, the lack of accountability for failures and programmatic blunders. That is called oversight. We want accountability. We want it in front of us. We want our hands on it. The bill gives the DNI the authority to conduct accountability reviews across the intelligence community if he deems it necessary or if we request it in our committee. It is called oversight. This also improves financial management by requiring a variety of actions related to the production of auditable financial statements. That sounds pretty boring, but, no, it is not. When you get into the intelligence community, when you get to classified numbers, things of that sort, it is very important to have someone watching. That is oversight. We will have that if this bill passes. The final major theme in the bill is the reform of the acquisition process. The bill requires a vulnerability assessment of all major acquisition programs. Well, acquisition is a very large word in intelligence and a very expensive word. We have made some very big mistakes, we have not been able to correct them. But that is a discussion for another day. So we have a classified annex. Any Senator who wants to look at what is behind all of those numbers can do that very easily. I have other things I wish to talk about, particularly the Army Field Manual. But I have a whole different speech awaiting my colleagues on that later in the day. Mr. President, I yield the floor.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on February 12, 2008, at 2:30 p.m., in order to hold a closed hearing.

Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary, Subcommittee on Crime and Drugs, be authorized to meet during the session of the Senate, in order to conduct a hearing entitled ``Federal Cocaine Sentencing Laws: Reforming the 100-to-1 Crack/Powder Disparity'' on Tuesday, February 12, 2008, at 2:30 p.m., in the Dirksen Senate Office Building, room 226. Witness list John Richter, United States Attorney, Western District of Oklahoma, U.S. Department of Justice; The Honorable Ricardo H. Hinojosa, Chair, U.S. Sentencing Commission, Washington, DC; The Honorable Reggie B. Walton, United States District Judge, Member, Criminal Law Committee, Federal Judicial Conference, Washington, DC; Nora Volkow, M.D., Director, National Institute on Drug Abuse, U.S. Department of Health & Human Services, Washington, DC; and James Felman, Co-Chair, Sentencing Committee, Criminal Justice Section, American Bar Association.

Mr. ROCKEFELLER

Mr. ROCKEFELLER. Mr. President, I strongly support this amendment. I think it has very good delineation between how decisions are made. The FISA Court needs to be a part of this. I urge my colleagues to support the amendment. I thank the senior Senator from California for offering this amendment, and for all of her work on ensuring that we have an appropriately drafted exclusivity provision. Senator Feinstein's amendment is critical to both our work on this bill and to our oversight of the intelligence community. To understand the importance of the Feinstein amendment, we must look at both existing statutes and recent events. There is already an exclusivity provision in the United States Code. It was enacted as part of the original Foreign Intelligence Surveillance Act in 1978 and placed, where it exists now, in title 18, the criminal law title of the United States Code. That provision makes the Foreign Intelligence Surveillance Act and certain criminal wiretapping provisions the ``exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted.'' Although the intent of Congress is clear from this language, recent history raises concerns about the adequacy of this provision. In December of 2005, the American people and most of Congress learned for the first time that, shortly after the terrorist attacks of September 11, 2007, the President had authorized the National Security Agency to conduct certain surveillance activities within the United States. In publicly justifying the legality of this program, the White House asserted that Congress had authorized the President's program by enacting an authorization for use of military force after September 11. The authorization passed on September 14, 2001, did not mention electronic surveillance. Nor did it mention any domestic intelligence activities. Given the nature of both the authorization and the time in which it was passed, it is very unlikely that it occurred to anyone in Congress that the President might use this authorization to justify his position that the existing statute making FISA the exclusive means for conducting electronic surveillance no longer applied. I have expressed my dismay in the past about the legal arguments that the President used to justify the surveillance program. We are still working through the many problems caused by the President's decision to go forward without input from Congress or the courts. But no matter what the President should have done at the time, Congress now has an obligation to act to prevent this misuse of legislation. Having finally made the right decision in early 2007 to bring his entire program under the FISA Court, the President is no longer using the 2001 Authorization for the Use of military force as a justification to disregard FISA. But we must ensure that neither this President nor a future one resurrects the discredited argument that the 2001 authorization for the use of military force is a blank check for such lawlessness. Section 102 of the Intelligence Committee bill prevents that abuse. Section 102 enacts an exclusivity provision as a new section 112 of FISA, and lists all statutes now in effect that constitute authority for electronic surveillance. This list is a clear statement of congressional intent: Congress did not intend any other presently- existing statutes to constitute an exception to FISA. Conspicuously absent from the exclusive list is the 2001 authorization for the use of military force. The omission of the 2001 authorization from the complete list that will now be enacted in 2008 is a conclusive statement that the 2001 authorization may never again be used to circumvent FISA. Senator Feinstein's amendment takes exclusivity one important step further. It is designed to ensure that no future President interprets a statute that does not explicitly mention electronic surveillance as an exception to the FISA exclusivity requirement. This would be an absolutely incorrect interpretation of existing law. Senator Feinstein's amendment ensures that no President will again make this mistake. Senator Feinstein's amendment addresses the possible impact of future statutes by adding language to the exclusivity section that states that only an express statutory authorization for electronic surveillance will constitute an additional exclusive means for electronic surveillance. By requiring ``express statutory authorization,'' Congress anticipates that a statute will only constitute an exception to FISA if it explicitly discusses electronic surveillance. Only those statutes listed in the FISA exclusivity section of the Intelligence Committee bill currently meet that standard. The amendment therefore ensures that general statutes enacted in the future do not become the basis for exceptions to the FISA exclusivity provision. It also applies criminal and civil penalties for any electronic surveillance done outside of the list of authorized statutes. The Feinstein amendment being offered today also resolves the operational concerns raised by the Director of National Intelligence about the exclusivity provision in the Judiciary Committee's amendment to the bill. Senator Feinstein's amendment does not include the undefined term ``communications information'' and therefore does not bar the acquisition of information that is currently authorized under other statutes. Existing statutes as well as the current bill provide the intelligence community with mechanisms to obtain the intelligence the country needs in a legal manner, with the oversight of the courts. There is no need for this President, or any future President, to set aside the lawful, well-overseen procedures of FISA in favor of a secret intelligence program. Both the Intelligence and Judiciary Committees have done a significant amount of work, on a bipartisan basis, to draft a bill that allows the collection of needed intelligence while still protecting the civil liberties of U.S. persons. Senator Feinstein's amendment helps to make sure that this work will not simply be ignored by this President or any future President.

Mr. ROCKEFELLER. Mr. President, I strongly oppose this amendment. This amendment would prohibit the Government from acquiring any communication under title VII of the bill if the Government knows before or at the time of acquisition that the communication is to or from a person reasonably believed to be located in the United States, unless the Government follows the sequestration procedures set forth in the legislation. I see a number of problems with this amendment and I strongly oppose it. I am afraid that the practical effect of this amendment would be to restrict the scope of the collection authority under the bill to international terrorism. Under the terms of this amendment, no other important foreign policy or national security target could be pursued unless the Government goes through a process that appears to be basically unworkable. Neither the Intelligence Committee nor the Judiciary Committee limited the scope of the authority in this bill to international terrorism. Both committees anticipated that the flexibility provided by this bill could be used against the gamut of foreign targets overseas with respect to proliferation, weapons development, the clandestine intelligence activities of our enemies, and other priorities. The full Senate should not limit the scope of this bill to one area of foreign intelligence. A second problem with this amendment is the new, cumbersome procedures it would impose involving the sequestration of information if the communication is to or from a person in the United States. The amendment seems to require that the Attorney General must make an application to the FISA Court to have access to this information for more than 7 days, even if the communication, for instance, concerns international terrorist activities directed against the United States. While I share the Senator's goal of protecting the privacy interests of Americans, I am afraid this amendment is unworkable. It bears repeating that what we are trying to do in S. 2248 is modernize the Foreign Intelligence Surveillance Act so that FISA Court orders are not required when the Government is targeting non-U.S. persons overseas to collect foreign intelligence information. And we are trying to do this in a way that protects the privacy interests of U.S. persons. We thus have included in S. 2248 numerous protections for U.S. persons--both when they are the specific targets of Government surveillance and when their communications are intercepted as the incidental result of the Government acquiring the communications of a foreign target. The Feingold sequestration amendment does not achieve the appropriate balance of privacy and national security. It appears to me that requirements already in S. 2248, including the requirement that minimization procedures for this collection activity be approved by the FISA Court, represent a much better approach for balancing the national security and the privacy interests of U.S. persons. I urge the amendment be defeated.

Mr. ROCKEFELLER. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 3927

Mr. ROCKEFELLER. Mr. President, the distinguished ranking member of the Judiciary Committee, Senator Specter, has offered an amendment proposing to substitute the government for the providers in the ongoing civil lawsuits. I appreciate and agree with the sentiment of Senator Specter and Senator Whitehouse that the government--not the providers who operated in good faith with them--should be held responsible for the legal fallout from the President's warrantless surveillance program. But this amendment lays out a remarkably complicated litigation procedure that is unlikely to achieve any meaningful review of the President's program. Under this amendment, if the Attorney General submits a certification to the district court that an individual carrier provided assistance in connection with the President's program or did not provide assistance, the district court certifies a question to the FISA Court. The FISA Court is then required to determine whether the carrier cooperated with existing law, or acted in good faith and pursuant to an objectively reasonable belief that the written request was legal. If the FISA Court makes that finding, the government is substituted for the carrier in the district court. At that point, litigation continues against the government under several different possible statutes, and the provider is dismissed from the suit. The plaintiffs may, however, seek discovery--that is, documents, witness testimony, and other information--from the providers who were originally named in the lawsuit. This complicated procedure raises a number of concerns both about the determination by the FISA Court and the resolution of the lawsuits after the government is substituted. As an initial matter, it is unclear why the cases would need to be transferred to the FISA Court for a determination of good faith. The Intelligence Committee has already made an assessment of the good faith of the cooperating providers. The possibility of a court--rather than the Congress--making the good faith determination is particularly relevant to an amendment offered by Senator Feinstein, and I am sure we will discuss it further. But even if Congress seeks to have a court, rather than Congress, make a determination of good faith, having that.determination made in the FISA Court unnecessarily complicates the process. The FISA Court is not a standard factfinding trial court; it does not hear from witnesses, take evidence, or assess the ``good faith'' of private parties. The FISA Court is simply not set up to make factual determinations that impact civil lawsuits. Nor does transferring the cases to the FISA Court help the plaintiffs in these cases. They are not entitled to hear the classified information concerning the good faith of the providers, and they will not be involved in the debate. In addition, although a finding of good faith would normally result in dismissal of the lawsuits, under this proposal, the providers would still potentially have the burden of producing documents and witnesses. Thus, because providers who acted in good faith will continue to have a role in the litigation, even if they are no longer the named defendants, this proposal does not relieve the cost and reputational burdens of the litigation. It therefore is unlikely to encourage the providers to cooperate with the government in the future. It is also unclear what substituting the government in these cases seeks to accomplish. The proposal would involve changing the nature of the claims filed against telecommunications companies to causes of action against the government under a number of statutes, including the Federal Tort Claims Act, the Administrative Procedure Act, or FISA. Suits under these statutes, however, can be, and in some cases, have already been brought against the government. If it is already possible to sue the government under thee statutes for possible violations, and indeed, if the government has already been sued under these statutes, why do we need to create a new procedure to convert claims against private companies into these claims against the government? Finally, we should look at what is actually happening in the current litigation. Many of my colleagues have suggested that allowing the litigation to continue--with either the government or the providers as the defendant--will allow the court to resolve the issue of whether the providers acted in accordance with the law. But this is not presently the debate in the litigation. Right now, the parties in the approximately 40 civil lawsuits are arguing about access to classified information about the President's program. The government has refused to publicly reveal the classified documents and information that would allow litigation to proceed. Because classified information is needed to address even threshold litigation issues, having the government or a particular provider as defendant in the suit is unlikely to change this aspect of the litigation. In other words, whether or not we substitute the government for the provider, no court is likely to resolve the question of whether the President, or any private company, violated the law in the near future. Given that the administration is unlikely to declassify information about the program while the lawsuits are ongoing, it is also unlikely that litigation will ever tell the story of what happened with the President's program. So what benefit is there to substituting the government in the providers' stead? Providers who acted in good faith should be removed from ongoing litigation, without having the burden of responding to discovery and litigation requests and without the reputational harm of having suits in their name go forward against the government. Ongoing reminders of the potential pitfalls of cooperating in good faith with the government will not encourage these companies--whose assistance the intelligence community and law enforcement agencies desperately need--to cooperate with the government in the future. If plaintiffs in any ongoing suit want to bring claims against government officials, those suits can be brought directly, without the complicated substitution procedure described in this amendment. Although no member of the Intelligence Committee offered an amendment on this issue, the committee considered whether it would be more appropriate to substitute the government for particular providers in ongoing lawsuits as part of the work done in preparing this bill. For all of the reasons I have discussed, the committee ultimately decided that substitution was not the right approach to address the ongoing lawsuits. I, therefore, cannot support this amendment, and I urge my colleagues to oppose it.

Mr. ROCKEFELLER. Mr. President, I move to reconsider the vote, and I move to lay that motion on the table.

Mr. ROCKEFELLER. Mr. President, I oppose this amendment. The Senator from Wisconsin is offering an amendment that he argues will prevent what he calls ``bulk collection.'' The amendment is intended, as described by the Senator from Wisconsin, to ensure that this bill is not used by the Government to collect the contents of all the international communications between the United States and the rest of the world. The Senator argues that his amendment will prevent ``bulk collection'' by requiring the Government to have some foreign intelligence interest in the overseas party to the communications it is collecting. I regret to say that I must oppose this amendment. I do not believe it is necessary. I do believe as drafted the amendment will interfere with legitimate intelligence operations that protect the national security and the lives of Americans. In considering amendments today, we need to consider whether an amendment would provide additional protections for U.S. persons and whether it would needlessly inhibit vital foreign intelligence collection. I do not believe the amendment as drafted provides additional protections. Furthermore, intelligence professionals have expressed their concern that this amendment would interfere with vital intelligence operations and there are important classified reasons underlying that concern. Let us review the reasons why the amendment is unnecessary: first, bulk collection resulting in a dragnet of all of the international communications of U.S. persons would probably be unreasonable of the fourth amendment. No bill passed by the Senate may authorize what the fourth amendment prohibits. What is more, the committee bill, in fact, explicitly provides that acquisitions authorized under the bill are to be conducted in a manner consistent with the fourth amendment. Second, the committee bill stipulates that acquisitions under this authority cannot intentionally target any person known to be located in the United States. And, to target a U.S. person outside the United States, the government must get approval from the FISA Court. Third, the committee bill increases the role of the FISA Court in supervising the acquisition activities of the Government. The bill requires Court approval of minimization procedures that protect U.S. person information. It maintains the prior requirement of Court approval of targeting procedures. In the unlikely event that the FISA Court would give its approval to targeting procedures and minimization procedures that allowed the Government to engage in unconstitutional bulk collection, the committee bill also strengthens oversight mechanisms in the executive and legislative branches. These mechanisms are intended to ensure such activity is detected and prevented. The sponsor of the amendment says that his amendment only requires the Government to certify to the FISA Court that it is collecting communications of targets for whom there is a foreign intelligence interest. But the committee bill already requires the Attorney General and the Director of National Intelligence to certify to the FISA Court that the acquisition authorized under the bill is targeted at persons outside the United States in order to obtain foreign intelligence information. Because the remedy does not improve upon the protections in the bill for Americans, and places new burdens on the surveillance of foreign targets overseas, I thus oppose the amendment and urge it be rejected.

Mr. ROCKEFELLER. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 3938

Mr. ROCKEFELLER. Mr. President, I strongly oppose this amendment. It is, of course, the whole shooting match. Substitution was brought up in the Judiciary Committee, and it was defeated. This, I believe, is the right way to go for the security of the Nation. Mr. President, Senators Dodd and Feingold have offered an amendment to strike title II of the Intelligence Committee bill. Title II addresses, in the narrowest way possible, a number of different underlying issues related to the past and future cooperation of providers. Any suggestion that it deals only with liability protection for providers related to the President's program fails to consider the title of the bill as a whole. Unlike the Government's initial immunity proposals, title II does not try to address all of the different kinds of problems in one sweeping immunity provision that might provide immunity in situations where it is not deserved. Instead, it addresses each problem individually. Let's look at the first problem. Under existing law, providers are entitled to protection from suit if they act pursuant to a FISA court order or if they receive a particular certification from the Attorney General. Senators Dodd and Feingold point to this existing immunity provision-- which may be based solely on the certification of the Attorney General--to suggest that no further immunity is needed. But this suggestion ignores the situation in the current lawsuits. The Government has not allowed the providers who have been sued to publicly disclose whether or not they assisted the Government. Providers, therefore, cannot reveal whether they are already entitled to immunity, or even whether they declined to cooperate with the intelligence community. In other words, even those providers who were not involved in the President's program or who acted only pursuant to a valid court order cannot extricate themselves from these lawsuits. Section 203 of the Intelligence Committee bill, therefore, creates a mechanism within FISA that allows courts to review whether providers should be entitled to immunity under existing law, without revealing whether or not the provider assisted the intelligence community. The Dodd-Feingold amendment to strike title II strikes this provision, which protects those providers who indisputably complied with existing law. There is a second problem that has not been widely discussed. Providers are currently subject to investigations by State public utilities commissions, which seek information about the relationship between the providers and Federal Government. These State investigations essentially seek to force disclosure of classified information about the nature and extent of the information obtained by the intelligence community from communication providers. This inquiry into the conduct of the Federal Government is not an appropriate area for State regulation. Section 204 of the Intelligence Committee bill, therefore, creates a new section of FISA that preempts State investigations that seek to force disclosure of classified information about the conduct of the Federal intelligence relationship between the provider and the intelligence community. Finally, section 202 provides retrospective immunity for the participation of telecommunication companies in the President's warrantless surveillance program. We need to be very clear on the parameters of this section. It does not simply clean the slate for the actions of communications providers in the aftermath of 9/11. In order for a provider to obtain liability protection, the Attorney General must certify that a company's actions were based on written assurances of legality, and were related to a communications intelligence activity authorized in the relevant time period. Because these certifications require the Attorney General to have determined that legal requirements have been met and that the program was designed to detect or prevent a terrorist attack, an area where assistance would clearly be required, they parallel existing statutory requirements for immunity. Before immunity can be granted, the bill also requires the court to conduct a case-by-case review to ensure that the Attorney General did not abuse his discretion. It is important to understand why the Intelligence Committee included this provision in our bill. After hearing from witnesses and reviewing documents, the committee concluded that the providers who assisted the Government acted in good faith, with a desire to help the country prevent another terrorist attack like those committed on September 11, 2001. Even more importantly, however, the committee recognized that, because of the ongoing lawsuits, providers have become increasingly reluctant to assist the Government in the future. Given the degree to which our law enforcement agencies and intelligence community need the cooperation of the private sector to obtain intelligence, this was simply an unacceptable outcome. Senators Dodd and Feingold have suggested that including the provision on liability protection as part of the bill is a sign of support for the President's program. It is not. It is simply a mechanism to ensure that accountability for the President's program lies with those who are truly responsible for it: The Government officials who represented to these companies that their actions were in accordance with the law. And it is a way to ensure that the intelligence community obtains the assistance it needs from the private sector to keep us safe. The question of whether the President's warrantless surveillance program was legal, or whether it violated constitutional rights, can and must be answered. Likewise, if administration officials improperly violated the privacy of innocent U.S. persons by conducting this warrantless surveillance, they should be held accountable. But suing private companies who may have cooperated with the Government is neither an appropriate accountability mechanism nor the best way to obtain answers to questions about the legality of the program, nor is it the appropriate way to encourage public disclosure of information about the program. The Intelligence Committee's bill does not prevent Congress from conducting its own oversight of these issues, or even from creating alternative mechanisms to seek those answers. It also allows suits against the Government to go forward. I encourage my colleagues to come up with appropriate alternatives for review of the President's program; alternatives that will ensure both that the story of the President's program is made available to the public in a manner consistent with the protection of national security information and that Government officials are held accountable for any wrongdoing in which they may have been involved. What we must not do, however, is to make companies that cooperated with the Government in good faith bear the brunt of our anger towards the President and other Government officials about the warrantless surveillance program; our intelligence community's future relationship with the private sector is simply too important. Protection from liability is simply a way to ensure that the next President has the cooperation of these companies both to obtain intelligence to protect the country and to protect the privacy interests of U.S. persons. I, therefore, urge you to oppose the Dodd-Feingold amendment.

Mr. ROCKEFELLER. Mr. President, I support this amendment. It closes a gap in the Foreign Intelligence Surveillance Act. The amendment expands the definition of certain key terms in the law in order to enhance the Government's ability to obtain FISA coverage of individuals involved in the international proliferation of weapons of mass destruction. Although the international proliferation of WMD is one of the most serious threats facing the nation, the Government cannot now get a FISA Court order for individuals believed to be engaged in international proliferation of weapons of mass destruction unless the Government can also show a close link between the trafficker and a foreign Government or an international terrorist organization. Too often, this connection only becomes clear at the completion of the target's proliferation activity. With this amendment, the Government will be able to conduct electronic surveillance and physical searches, with a FISA Court order, at a much earlier stage in an individual's proliferation activities. It should be understood that this amendment is intended to broaden FISA coverage only in those instances in which the individual is involved in international proliferation activities. The amendment is intended to cover those who are engaged in activities involving proliferation of weapons of mass destruction, which include under the terms of the amendment biological, chemical and radiological weapons and destructive devices that are intended to or that actually do have a capability to cause death or serious bodily injury to a significant number of people. This amendment will enhance our efforts to acquire foreign intelligence information to detect and disrupt the international proliferation of weapons of mass destruction. The vice chairman is to be applauded for addressing this issue and I urge passage.