Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the article I wrote in response to a request by the Philadelphia Inquirer be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, the Senator from Arizona is correct. The current statistics show a need for another judge there, and there is no reason to withhold the confirmation of Peter Keisler, except to keep a vacancy open with the hope of having the new President of the other party fill it.

Mr. SPECTER. Mr. President, I ask unanimous consent that the resumes of the two nominees who have been confirmed be printed in the Record. The resumes show these two individuals to be well qualified.

Mr. SPECTER. Mr. President, let me emphasize to my colleagues on the Republican side who have requested time to speak that we do have an hour. I will speak for only a few minutes. We have the distinguished Senator from Iowa who is available to speak next. We are open to have others come to take part of the time. Today, the other Republican members of the Judiciary Committee chose not to attend an Executive Business Meeting because there were no judges on the agenda. We have seen that there is tremendous partisanship, acrimony, and bitterness about the facts regarding the whole confirmation process in this Chamber at the present time. We find a situation where President Bush's confirmation numbers are far behind President Clinton's in the comparable period. President Clinton, in the last 2 years of his Presidency, had 15 circuit judges confirmed, 57 district judges confirmed, contrasted with 10 circuit judges for President Bush and 44 district court judges. We have found, regrettably, that this pattern has been evolving over the past couple decades. We have seen in the last 2 years of President Reagan's administration, when the Senate was controlled by the Democrats, the confirmation process was slowed. Similarly, in the last 2 years of President George H.W. Bush, the Democrats controlled the Senate, and the process was slowed. Then, for 6 years during President Clinton's administration, the last 6, the Senate was controlled by Republicans and the matter was exacerbated. There were determinations to not confirm President Clinton's judges. I spoke out at that time and voted to confirm President Clinton's qualified judges and disagreed with my caucus because I thought we ought not to be partisan and impede the confirmation of judges due to the importance and public interest of having the courts handle litigation in a timely way. But the situation was ratcheted up, first by Democrats, and then by Republicans. Then we saw this Chamber badly divided in 2005, with filibusters by the Democrats and threats by Republicans to put into effect the nuclear or constitutional option to change the rules on filibusters. So the matter has gone from bad to worse. It is hard to see how it can get much worse, but it seems to be getting worse. It is my hope we will find a way to break this cycle. What we find is the minority party, whichever party that is, has been turned into recidivists. We have a cycle of recidivism blocking the confirmation of judges. Nobody knows for sure what is going to happen in the Presidential election this year or what is going to happen in the Senatorial elections, but it may be that there will be a Democratic President. It may be that the Democrats will control the Senate. I would not like to see the rapidly deteriorating situation which we now have now turn into a situation where there will be filibusters by the Republicans in the 111th Congress. For a long time the Democrats filibustered Fifth Circuit nominees, claiming Clinton's nominees were filibustered years back. Now we have a good many Fourth Circuit nominees who are not receiving hearings or votes. I am afraid we are going to have the same situation exacerbated with Republicans taking a position similar to the Democrats current position. It is my hope we will yet be able to do something about it. Earlier today, Senator Reid came to the floor and mentioned me by name. I gave Senator Reid notice that I would be on the floor at 12:15 today, when I had some time allotted. I believe it is a good practice, not only a good practice, not only a preferable practice, but it ought to be the practice to let a Senator know if you are going to talk about him on the floor so he can come and reply, if he chooses to do so. But, Senator Reid was commenting about the excessive amount of time Republicans wanted, an hour and a half. We had an hour equally divided a few weeks ago, and that left Republicans with a half an hour. Senator Warner had a judge on the list and didn't have any time to speak. Senator Bond came to the floor, and there was no time for him on Republican time. I understood later--I found out this morning--that he got some time from Senator Leahy. But, all any Senator has to do is call. If Senator Reid doesn't like the time request and wants it at an hour, he can call me. I realize he has a responsibility to administer this Chamber, and I am prepared to cooperate with him. But, it is my hope we will yet move ahead. We have a large number of individuals who have been waiting a very long time in the confirmation process. Tomorrow marks the 750th day that Peter Keisler has waited for Committee action. Steve Matthews in the Fourth Circuit has been waiting 315 days for a hearing, and Judge Robert Conrad in the Fourth Circuit from North Carolina has been waiting for a year today. One further comment before yielding to Senator Grassley. There has been a lot of talk about the so-called Thurmond rule. The contention has been made that there is a rule, articulated by Senator Thurmond, which dictating that there are no judicial confirmations late in the final year of a Presidency, not after the summer. Allegedly, the concept was discussed at the Republican National Convention, where Senator Thurmond reportedly made a comment, although no quotation is directly attributable to Senator Thurmond, that they ought to wait until after the election to see who was elected before there were confirmations of other judges. But the facts are that no such practice was ever implemented. The facts are exactly to the contrary. It is true that on September 10, 1980, Senator Thurmond blocked 13 pending judicial nominations, but he gave his reasons why. He said: ``Our investigation has not been entirely completed on some of them.'' A week later, on September 17, Senator Thurmond withdrew the objections, and all 10 were confirmed on September 29. Then, the most conclusive evidence that there is no Thurmond rule was pertains to the situation with now-Supreme Court Justice Breyer. Justice Breyer was nominated by President Carter on November 13, 1980, after President-elect Reagan had been elected. So there was a vacancy that, had the Senate not confirmed him, would have awaited the next President. The nomination was acted upon very promptly, with the receipt by the Senate on November 13 and a hearing on November 17, even faster than the 1-week rule, which was waived. Breyer was reported out by committee on December 1 and confirmed by the full Senate on December 9. So how can you have a Thurmond rule if a circuit vacancy on the First Circuit is confirmed, even after a new President has been elected? The evidence shows there are many confirmations late in the Presidential term. I cite only a few. There was an additional circuit nominee confirmed in September of 1980. After September 1, 1984, 5 circuit court and 12 district court judges were confirmed. After September 1, 1988, five circuit court and nine district judges were confirmed. After September 1, 1992, three circuit court and nine district court judges were confirmed. We have found, understandably, that arguments are made, depending upon what suits the purpose of the particular advocate. But, it is worth noting that Senator Leahy said on May 4, 2000: There is a myth that judges are not traditionally confirmed in Presidential election years. That is not true. Similarly, Senator Reid said, on March 7 of 2000: It is a myth that judges are not traditionally confirmed in Presidential election years. It is simply not true. So, in the year 2000, when the Democrats sought to confirm President Clinton's nominees, reference was made to the fact that the Senate regularly confirms judicial nominations late in the term--the substance of the so-called Thurmond rule. We ought to try to move, I suggest, away from positions where we articulate a view when it suits our purpose and then articulate a different view later. We ought to try to come to a point in this body where we understand reciprocity and understand that the rules ought to apply both ways. There is no Thurmond rule for Democrats when Republicans are in control and there is a Democratic President, and there is no Thurmond rule when the situation is reversed. We have a similar situation, which is tearing at the heart of Senate procedures, where in modern times both Republican and Democratic leaders have adopted a process of taking procedural steps to prevent amendments from being offered. That practice has been engaged in by Senator Mitchell for the Democrats, Senator Lott and Senator Frist for the Republicans, and now, more by Senator Reid for the Democrats. Bills come to the floor, and the traditional right of a Senator to offer amendments is foreclosed by this procedural device, and the response is a filibuster. Senator Reid then points to Senator McConnell, saying that the filibuster is blocking Senate action. Senator McConnell points to Senator Reid saying that the filibuster is only in response to filling the tree. These are just a couple of examples where positions are taken. And, it is understandable that they are taken to promote whatever objective Senators want at any particular time. But, I suggest the interests of the public and the procedures of the Senate would be much better served if we accepted principles and applied them to Democrats when it benefits Democrats and applied them to Republicans when it benefits Republicans. It is my hope, to repeat--which I do not like to do--that we are going to have to find a way out of this impasse, and we are going to find a way to restore some comity and to confirm judges in places where there are judicial emergencies and the public is suffering so that we do not repeat this cycle of recidivism and set the stage for the next Congress and the Congress after that to continue this nefarious practice which is harmful to the public. Mr. President, I yield to my distinguished colleague.

Mr. SPECTER. I do yield.

Mr. SPECTER. I thank the distinguished Senator from Iowa for the question. A judicial emergency has been defined by the Administrative Office of the Courts according to the backlog of cases and depending on the circumstances, as to how long litigants have had to wait. What it means in real world terms is, if somebody is injured, for example, in an automobile collision--a diversity case--and is out of work and has big medical expenses, that person's case does not come to trial and he does not get a decision as to what has happened. Or it may be a matter involving jobs in a community where there is an antitrust case, and it is delayed, both in the trial court and on appeal. But, every one of these judicial emergencies--and I put them in the Record before, but I ask unanimous consent to have them printed again at the conclusion of our discussion here--means that people are waiting to have their controversies decided, and they are undergoing very difficult circumstances being out of work, no salary, medical expenses, illustratively, while they wait for their case to come up.

Mr. SPECTER. Mr. President, responding to the question, there are no allegations of incompetency. Quite to the contrary. Nobody is saying that.

Mr. SPECTER. Yes, they should be. The reason they have not been approved is that there is an interest in holding open these vacancies in the event there is a President of the other party to fill them with the Democrats. Nobody is making any bones about that, I say to Senator Grassley. That is the obvious and admitted reason.

Mr. SPECTER. Mr. President, I respond by saying to the Senator from Iowa that is a very harsh accusation, very harsh accusation he has just made. But, since he has made it, I will say that it is true.

Mr. SPECTER. Mr. President, I thank the Senator from Alabama for the question. There was a Republican forum on Monday of this week to examine the Thurmond Rule. I had notified Chairman Leahy of it and had written to him about it, and I ask unanimous consent to have that letter printed in the Record.

Mr. SPECTER. During the course of that forum, to answer the question directly from the Senator from Alabama, we had an expert from the Congressional Research Service--the nonpartisan body--come in to trace the origins of the so-called Thurmond rule. He stated that it arose back in the Republican Convention in 1980, when Senator Thurmond raised the possibility of holding up confirmations until after the election, but it was never done. The facts are that there were 10 district court judges confirmed in September of 1980, and now-Justice Breyer was nominated to the First Circuit by President Carter after the election, on November 13, and was confirmed in December 1980. Another circuit judge was confirmed after September of 1980. I put in the Record earlier a litany of district and circuit judges confirmed after September in the last year of a Presidential term. I also put into the Record statements which had been made by Senator Reid and Senator Leahy that there was no practice, no rule of not confirming judges at the last part of a President's term, say after Labor Day.

Mr. SPECTER. Mr. President, responding to the question, the Senator from Arizona is correct. Peter Keisler has been praised in all quarters for his capabilities. He served as Assistant Attorney General and as Acting Attorney General. He has drawn editorial praise and is extremely well qualified, both academically and professionally, and is simply being held up because at one time in the past there was a Republican concern about the need for additional judges on the Circuit Court for the District of Columbia. And, that issue has since been satisfied.

Mr. SPECTER. The Senator from Arizona is correct again.

Mr. SPECTER. Mr. President, the Senator from Arizona is correct, yes. Exhibit 2

Mr. SPECTER

Mr. SPECTER. Mr. President, the bill that Senator Harkin and I are introducing today would provide an additional $5.2 billion in fiscal year 2008 for the National Institutes of Health--$1.2 billion for the National Cancer Institute and $4 billion for other NIH institutes. The increases that the Labor, Health and Human Services and Education Subcommittee has provided over the past 20-30 years have dramatically improved the survival rates for many diseases--deaths from coronary artery disease declined by 18 percent between 1994 and 2004, stroke deaths also fell by 24.2 percent during that same time period. The 5- year survival rates for Hodgkin's lymphoma have increased from 40 percent in the 1960s to more than 86 percent today. Survival rates for localized breast cancer have increased from 80 percent in the 1950s to 98 percent today. Over the past 25 years, survival rates for prostate cancer have increased from 69 percent to nearly 99 percent. So we are seeing real progress. But for many other maladies, the statistics are not so good. The remarkable medical advances we have seen thus far did not happen overnight. It takes a sustained commitment of time, effort and money for research institutions to train and recruit scientists skilled in the latest research techniques, and to develop the costly infrastructure where research takes place. Over the past several years Senator Harkin and I have worked hard to find ways to increase NIH funding. We have offered amendments to budget resolutions, encouraged our colleagues on the Appropriations Committee to increase the subcommittee's allocation, and undertook what some would call creative budgeting to make more resources available for NIH. As scientists, doctors, and patients can attest, these efforts have paid off; these funding increases have been instrumental in realizing the medical breakthroughs we are experiencing today. The $875,000,000 increase for NIH approved recently by the Appropriations Committee is a step in the right direction, but it falls far short of the billions needed to make up lost ground and revitalize medical research in this country. Regrettably, Federal funding for NIH has steadily declined from the $3.8 billion increase provided in 2003-- when the 5-year doubling of NIH was completed--to only $328 million in fiscal year 2008. Beginning in 2004--if we would have sustained increases of $3.5 billion per year, plus inflation--we would have $23 billion more in funding for today. The shortfall in the President's fiscal year 2009 budget due to inflationary costs alone is $5.2 billion. This funding decline has disrupted the flow of research progress, not just for today, but for years to come. The problem is that an entire generation of research scientists is being discouraged from going into the field of medical research, due to a lack of NIH research grants. This breach in Federal support, if it continues, will further slow on-going research and hamper the ability to fund new research opportunities for the future. The legislation that Senator Harkin and I are introducing today would provide an immediate infusion of new research dollars, and while it will only make up the $5.2 billion inflationary costs--it is a good starting point. The $1.2 billion contained in this bill for the National Cancer Institute is consistent with the Institute's professional judgment budget and the recent recommendations of the cancer research community. On June 6, 2008, I wrote to Ms. Nancy Brinker, Founder of the Susan G. Komen Breast Cancer Foundation; Dr. Richard Schilsky, American Society of Clinical Oncology; Ms. Ellen Stovall, President and CEO, National Coalition for Cancer Survivorship; Dr. Raymond Dubois, President, American Association for Cancer Research; Mr. Lance Armstrong, Lance Armstrong Foundation; and Dr. Ellen Sigal, Chairperson, Friends of Cancer Research and asked for their estimate and timeline on conquering cancer. Their reply was $335 billion or approximately $22 billion a year over the next 15 years. While that may seem like a staggering amount of money, it pales in comparison to the savings research breakthroughs would produce in terms of lower health care costs and caregiver expenses, savings to business and the nation's overall economy. Senator Harkin and I, along with Senator Kennedy and Hutchison are looking for ways to provide not just the $5.2 billion contained in the legislation that we are introducing today, but to provide the billions of dollars needed for treatment and cures. The partnership that Tom Harkin and I have had since 1989 is solid and together we will find a way to increase this nation's investment in biomedical research. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, the bill that Senator Harkin and I are introducing today would provide an additional $5.2 billion in fiscal year 2008 for the National Institutes of Health--$1.2 billion for the National Cancer Institute and $4 billion for other NIH institutes. The increases that the Labor, Health and Human Services and Education Subcommittee has provided over the past 20-30 years have dramatically improved the survival rates for many diseases--deaths from coronary artery disease declined by 18 percent between 1994 and 2004, stroke deaths also fell by 24.2 percent during that same time period. The 5- year survival rates for Hodgkin's lymphoma have increased from 40 percent in the 1960s to more than 86 percent today. Survival rates for localized breast cancer have increased from 80 percent in the 1950s to 98 percent today. Over the past 25 years, survival rates for prostate cancer have increased from 69 percent to nearly 99 percent. So we are seeing real progress. But for many other maladies, the statistics are not so good. The remarkable medical advances we have seen thus far did not happen overnight. It takes a sustained commitment of time, effort and money for research institutions to train and recruit scientists skilled in the latest research techniques, and to develop the costly infrastructure where research takes place. Over the past several years Senator Harkin and I have worked hard to find ways to increase NIH funding. We have offered amendments to budget resolutions, encouraged our colleagues on the Appropriations Committee to increase the subcommittee's allocation, and undertook what some would call creative budgeting to make more resources available for NIH. As scientists, doctors, and patients can attest, these efforts have paid off; these funding increases have been instrumental in realizing the medical breakthroughs we are experiencing today. The $875,000,000 increase for NIH approved recently by the Appropriations Committee is a step in the right direction, but it falls far short of the billions needed to make up lost ground and revitalize medical research in this country. Regrettably, Federal funding for NIH has steadily declined from the $3.8 billion increase provided in 2003-- when the 5-year doubling of NIH was completed--to only $328 million in fiscal year 2008. Beginning in 2004--if we would have sustained increases of $3.5 billion per year, plus inflation--we would have $23 billion more in funding for today. The shortfall in the President's fiscal year 2009 budget due to inflationary costs alone is $5.2 billion. This funding decline has disrupted the flow of research progress, not just for today, but for years to come. The problem is that an entire generation of research scientists is being discouraged from going into the field of medical research, due to a lack of NIH research grants. This breach in Federal support, if it continues, will further slow on-going research and hamper the ability to fund new research opportunities for the future. The legislation that Senator Harkin and I are introducing today would provide an immediate infusion of new research dollars, and while it will only make up the $5.2 billion inflationary costs--it is a good starting point. The $1.2 billion contained in this bill for the National Cancer Institute is consistent with the Institute's professional judgment budget and the recent recommendations of the cancer research community. On June 6, 2008, I wrote to Ms. Nancy Brinker, Founder of the Susan G. Komen Breast Cancer Foundation; Dr. Richard Schilsky, American Society of Clinical Oncology; Ms. Ellen Stovall, President and CEO, National Coalition for Cancer Survivorship; Dr. Raymond Dubois, President, American Association for Cancer Research; Mr. Lance Armstrong, Lance Armstrong Foundation; and Dr. Ellen Sigal, Chairperson, Friends of Cancer Research and asked for their estimate and timeline on conquering cancer. Their reply was $335 billion or approximately $22 billion a year over the next 15 years. While that may seem like a staggering amount of money, it pales in comparison to the savings research breakthroughs would produce in terms of lower health care costs and caregiver expenses, savings to business and the nation's overall economy. Senator Harkin and I, along with Senator Kennedy and Hutchison are looking for ways to provide not just the $5.2 billion contained in the legislation that we are introducing today, but to provide the billions of dollars needed for treatment and cures. The partnership that Tom Harkin and I have had since 1989 is solid and together we will find a way to increase this nation's investment in biomedical research. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today to express my gratitude to the Philadelphia Phillies for their extraordinary effort during a recent mentoring event at PNC Park in Philadelphia on June 21, 2008. This particular event was the most recent in a series of events that have been an integral part of a youth outreach program. Since my days as district attorney in Philadelphia, I have devoted a great deal of time and attention to developing ways to reduce violent crime. I believe one of the best ways to reduce the rate of youth crime and violence is to develop mentoring programs with the explicit goal of imbuing the youth of Pennsylvania with ideals such as hard work and civic responsibility. With this goal in mind, I have worked diligently to secure funding for mentoring style programs and have subsequently held events focusing on mentoring and the issues of youth crime and violence throughout Pennsylvania including Philadelphia, Reading, Lancaster, York, Pittsburgh, and Allentown. The mentoring events in which I have participated are intended to provide the young people of Pennsylvania with a day all their own and, simultaneously, highlight how fun and special mentoring relationships can be for everyone involved. It is my belief that when these young people see that there are positive role models readily available in their community to whom they can turn when searching for someone to emulate, the chance of perpetuating violent patterns of behavior will markedly decline. Specifically, youth involved in a formal mentoring program are 46 percent less likely to start using drugs and alcohol and 33 percent less likely to hit another person. Participants also attended school more regularly and completed their school work more consistently and on time. Finally, the children demonstrated improved peer and family relationships as a result of their involvement in mentoring. These indicators make me hopeful that wide-scale mentoring could have a tremendous impact in this city. The day with the Philadelphia Phillies was no exception. Between the planning efforts and resources of the Phillies organization and the recommendations of my exceptional staff, the event turned out to be memorable for all those who attended. The accommodations the Phillies afforded the kids were exceptional. They went so far as to honor one young person from their own mentoring program and me, and we had the opportunity to get involved in the ``First Ball'' ceremony. I am sure this is a memory that this young man will carry with him for the rest of his life. I know it is one I will always reflect upon fondly. In the wake of the numerous scandals plaguing professional athletics, the event on June 21, 2008, reminded all those in attendance how powerful professional athletes can be in serving as positive role models for the children of our communities. There is no doubt that the young people of the great Commonwealth of Pennsylvania will continue to look toward players such as Chase Utley, Tom Gordon, Jimmie Rollins, Pat Burrell, and others in the future when determining who they should emulate. What I feel is most important to take away from this event is how significantly it reflects the desire of the entire Philadelphia community to become involved in programs that have the potential to effect real change in the lives of our youth. When a group as notable as the Philadelphia Phillies sets aside time and resources to enhance the lives of our youth, it establishes a powerful standard for involvement for the rest of the community. For this program to be a success, it is essential to engage groups of caring professionals. The Phillies, much to my pleasure, have done just that. I look forward to working further into the future with this great organization and the others that I hope will follow their lead.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the call of the roll begin now.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to mark the 13th anniversary of the Srebrenica massacre. Between July 12 and July 16, 1995, an estimated 8,000 Bosniak Muslim men and boys were slaughtered in the region of Srebrenica in Bosnia and Herzegovina. This was the largest mass murder in Europe since the Second World War. The killings were committed by the Army of the Republika Srpska, under the direct command of Ratko Mladic, and with the approval of Republika Srpska President Radovan Karadzic. The atrocities in Srebrenica were documented in the November 1995 indictment of Ratko Mladic and Radovan Karadzic by the International Criminal Tribunal for the former Yugoslavia, ICTY: ``Safe Area'' of Srebrenica 1. After war erupted in the Republic of Bosnia and Herzegovina, Bosnian Serb military forces occupied Bosnian Muslim villages in the eastern part of the country, resulting in an exodus of Bosnian Muslims to enclaves in Gorazde, Zepa, Tuzla, and Srebrenica. All of the events referred to in this indictment took place in the Republic of Bosnia and Herzegovina. 2. On 16 April 1993, the Security Council of the United Nations, acting pursuant to Chapter VII of its Charter, adopted resolution 819, in which it demanded that all parties to the conflict in the Republic of Bosnia and Herzegovina treat Srebrenica and its surroundings as a safe area which should be free from any armed attack or any other hostile act. Resolution 819 was reaffirmed by Resolution 824 on 6 May 1993 and by Resolution 836 on 4 June 1993. 3. Before the attack by Bosnian Serb forces, as described in this indictment, the estimated Bosnian Muslim population in the safe area of Srebrenica was approximately 60,000. Attack on the Safe Area of Srebrenica 4. On or about 6 July 1995, the Bosnian Serb army shelled Srebrenica and attacked United Nations observation posts that were manned by Dutch soldiers and located in the safe area. The attack on the Srebrenica safe area by the Bosnian Serb army continued through 11 July 1995, when the first units of the attacking Bosnian Serb forces entered Srebrenica. 5. The Bosnian Muslim men, women and children who remained in Srebrenica after the beginning of the Bosnian Serb attack took two courses of action. Several thousand women, children and some mostly elderly men fled to the UN compound in Potocari, located within the safe area of Srebrenica, where they sought the protection of the Dutch battalion responsible for the compound. They remained at the compound from 11 July 1995 until 13 July 1995, when they were all evacuated by buses and trucks under the control of and operated by Bosnian Serb military personnel. 6. A second group of approximately 15,000 Bosnian Muslim men, with some women and children, gathered at Susnjari during the evening hours of 11 July 1995 and fled, in a huge column, through the woods towards Tuzla. Approximately one- third of this group consisted of armed Bosnian military personnel and armed civilians. The rest were unarmed civilians. Events in Potocari 7. On 11 July 1995 and 12 July 1995, Ratko Mladic and members of his staff met in Bratunac with Dutch military officers and representatives of the Muslim refugees from Potocari. At these meetings, Ratko Mladic informed them, among other things, that Bosnian Muslim soldiers who surrendered their weapons would be treated as prisoners of war according to the Geneva Conventions and that refugees evacuated from Potocari would not be hurt. 8. On or about 12 July 1995, Bosnian Serb military forces burned and looted Bosnian Muslim houses in and around Potocari. 9. On or about 12 July 1995, in the morning hours, Bosnian Serb military forces arrived at the UN military compound in Potocari and its environs. 10. On or about 12 July 1995, Ratko Mladic arrived in Potocari, accompanied by his military aides and a television crew. He falsely and repeatedly told Bosnian Muslims in and around Potocari that they would not be harmed and that they would be safely transported out of Srebrenica. 11. On or about 12 July 1995, at the direction and in the presence of Ratko Mladic, approximately 50-60 buses and trucks arrived near the UN military compound in Potocari. Shortly after the arrival of these vehicles, the evacuation process of Bosnian Muslim refugees started. As Muslim women, children and men started to board the buses and trucks, Bosnian Serb military personnel separated the men from the women and children. This selection and separation of Muslim men took place in the presence of and at the direction of Ratko Mladic. 12. The Bosnian Muslim men who had been separated from other refugees were taken to diverse locations in and around Potocari. On or about 12 July 1995, Ratko Mladic and Bosnian Serb military personnel under his command, informed some of these Muslim men that they would be evacuated and exchanged for Bosnian Serbs being held in Tuzla. 13. Most of the Muslim men who had been separated from the other refugees in Potocari were transported to Bratunac and then to the area of Karakaj, where they were massacred by Bosnian Serb military personnel. 14. Between 12 July 1995 and 13 July 1995, Bosnian Serb military personnel summarily executed Bosnian Muslim men and women at diverse locations around the UN compound where they had taken refuge. The bodies of those summarily executed were left in fields and buildings in the immediate vicinity of the compound. These arbitrary killings instilled such terror and panic amongst the Muslims remaining there that some of them committed suicide and all the others agreed to leave the enclave. 15. The evacuation of all able-bodied Muslim refugees concluded on 13 July 1995. As a result of the Bosnian Serb attack on the safe area and other actions, the Muslim population of the enclave of Srebrenica was virtually eliminated by Bosnian Serb military personnel. Surrender and Executions 16. Between the evening of 11 July 1995 and the morning of 12 July 1995, the huge column of Muslims which had gathered in Susnjari fled Srebrenica through the woods towards Tuzla. 17. Bosnian Serb military personnel, supported by armored personnel carriers, tanks, anti-aircraft guns and artillery, positioned themselves along the Bratunac-Milici road in an effort to interdict the column of Bosnian Muslims fleeing towards Tuzla. 18. As soon as the column reached Bosnian Serb held territory in the vicinity of Buljim, Bosnian Serb military forces attacked it. As a result of this and other attacks by Bosnian Serb military forces, many Muslims were killed and wounded and the column divided into several smaller parts which continued towards Tuzla. Approximately one-third of the column, mostly composed of military personnel, crossed the Bratunac-Milici road near Nova Kasaba and reached safety in Tuzla. The remaining Muslims were trapped behind the Bosnian Serb lines. 19. Thousands of Muslims were captured by or surrendered to Bosnian Serb military forces under the command and control of Ratko Mladic and Radovan Karadzic. Many of the Muslims who surrendered did so because they were assured that they would be safe if they surrendered. In many instances, assurances of safety were provided to the Muslims by Bosnian Serb military personnel who were with other Bosnian Serb soldiers wearing stolen UN uniforms, and by Muslims who had been captured and ordered to summon their fellow Muslims from the woods. 20. Many of the Bosnian Muslims who were captured by or surrendered to Bosnian Serb military personnel were summarily executed by Bosnian Serb military personnel at the locations of their surrender or capture, or at other locations shortly thereafter. Incidents of such summary executions include, but are not limited to: 20.1 On or about 13 July 1995, near Nezuk in the Republic of Bosnia and Herzegovina, a group of 10 Bosnian Muslim men were captured. Bosnian Serb soldiers summarily executed some of these men, including Mirsad Alispahic and Hajrudin Mesanovic. 20.2 On or about 13 July 1995, on the banks of the Jadar River between Konjevic Polje and Drinjaca, Bosnian Serb soldiers summarily executed 15 Bosnian Muslim men who had surrendered or been captured. Amongst those killed were Hamed Omerovic, Azem Mujic and Ismet Ahmetovic. 20.3 On or about 13 July 1995, in the vicinity of Konjevic Polje, Bosnian Serb soldiers summarily executed hundreds of Muslims, including women and children. 20.4 On or about 17 July 1995 or 18 July 1995, in the vicinity of Konjevic Polje, Bosnian Serb soldiers captured about 150-200 Bosnian Muslims and summarily executed about one-half of them. 20.5 On or about 18 July 1995 or 19 July 1995, in the vicinity of Nezuk, about 20 groups, each containing between 5-10 Bosnian Muslim men, surrendered to Bosnian Serb military forces. After the men surrendered, Bosnian Serb soldiers ordered them to line up and summarily executed them. 20.6 On or about 20 July 1995 or 21 July 1995, near the village of Meces, Bosnian Serb military personnel, using megaphones, urged Bosnian Muslim men who had fled Srebrenica to surrender and assured them that they would be safe. Approximately 350 Bosnian Muslim men responded to these entreaties and surrendered. Bosnian Serb soldiers then took approximately 150 of them, instructed them to dig their own graves and then summarily executed them. 20.7 On or about 21 July 1995 or 22 July 1995, near the village of Meces, an excavator dug a large pit and Bosnian Serb soldiers ordered approximately 260 Bosnian Muslim men who had been captured to stand around the hole. The Muslim men were then surrounded by armed Bosnian Serb soldiers and ordered not to move or they would be shot. Some of the men moved and were shot. The remaining men were pushed into the hole and buried alive. 21. Many of the Muslims who surrendered to Bosnian Serb military personnel were not killed at the locations of their surrender, but instead were transported to central assembly points where Bosnian Serb soldiers held them under armed guard. These assembly points included, among others, a hangar in Bratunac; soccer fields in Kasaba, Konjevic Polje, Kravica, and Vlasenica; a meadow behind the bus station in Sandici and other fields and meadows along the Bratunac- Milici road. 22. Between 12 July 1995 and 14 July 1995, at various of these assembly points, including the hangar in Bratunac and the soccer stadium in Kasaba, Ratko Mladic addressed the Bosnian Muslim detainees. He falsely and repeatedly assured them that they would be safe and that they would be exchanged for Bosnian Serb prisoners held by Bosnian government forces. 23. Between 12 July 1995 and 14 July 1995, Bosnian Serb military personnel arbitrarily selected Bosnian Muslim detainees and summarily executed them. Mass Executions Near Karakaj 24. On or about 14 July 1995, Bosnian Serb military personnel transported thousands of Muslim detainees from Bratunac, Kravica and other locations to an assembly point in a school complex near Karakaj. At this assembly point, Bosnian Serb military personnel ordered the Muslim detainees to take off their jackets, coats and other garments and place them in front of the sports hall. They were then crowded into the school building and adjacent sports hall and held under armed guard. 25. On or about 14 July 1995, at this school complex near Karakaj, Ratko Mladic conferred with his military subordinates and addressed some of the Muslims detained there. 26. At various times during 14 July 1995, Bosnian Serb military personnel killed Bosnian Muslim detainees at this school complex. 27. Throughout 14 July 1995, Bosnian Serb military personnel removed all the Muslim detainees, in small groups, from the school building and sports hall and loaded them onto trucks guarded and driven by Bosnian Serb soldiers. Before boarding the trucks, many of the detainees had their hands tied behind their backs or were blindfolded. They were then driven to at least two locations in the vicinity of Karakaj. 28. Once the trucks arrived at these locations, Bosnian Serb military personnel ordered the bound or blindfolded Muslim detainees off the trucks and summarily executed them. The summary executions took place from approximately noon to midnight on 14 July 1995. 29. Bosnian Serb military personnel buried the executed Bosnian Muslim men in mass graves near the execution sites. 30. On or about 14 July 1995, Ratko Mladic was present at one of the mass execution sites when Bosnian Serb military personnel summarily executed Bosnian Muslim men. 31. The summary executions of Bosnian Muslim males, which occurred on 14 July 1995 in the vicinity of Karakaj, resulted in the loss of thousands of lives. Since the end of the conflict in Bosnia and Herzegovina, the ICTY has made considerable progress. Charges have been filed against 161 individuals. Of those, the trials of 114 have concluded, resulting in 55 convictions; 47 cases are ongoing. Among the Tribunal's greatest successes was the August 2001 conviction of Radislav Krstic on the count of genocide. I was recently pleased to learn of the June 11, 2008, arrest of longtime fugitive Stojan Zupljanin by Serbian authorities, as this was the first capture of a major war crimes suspect in about a year. However, three individuals, including Radovan Karadzic and Ratko Mladic, remain at large. It is vital that the remaining three be brought to face the court. It is imperative that the rule of law be brought into the international arena, both for the 8,000 who were killed in Srebrenica in July 1995, and for the many others who continue to suffer around the world today under oppressive regimes. I agree with former United Nations Secretary General Kofi Annan, who said during his 1997 visit to the ICTY, ``impunity cannot be tolerated, and will not be. In an interdependent world, the rule of law must prevail.''

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to make the final argument in support of my amendment pending on a very vital issue facing this body. We are asked today to do two things that I believe are unprecedented in the history of the Senate. First, we are called upon to vote on legislation where most of the Members admittedly don't know what we are voting on; second, we are stripping the Federal court of jurisdiction on some 40 cases that have been pending for more than 3 years and are in the process of litigation. On point 2, we are flying in the face of the most fundamental decision in the history of the United States on constitutional law, Marbury v. Madison, going back to 1803, 205 years, and Chief Justice Marshall saying that it is emphatically the province and duty of the judicial department to say what the law is. But the Congress is now being asked by the administration to grant retroactive immunity to the telephone companies, where the judge who is presiding on the case, Chief Justice Vaughn Walker, in the Federal court in San Francisco, has declared that the terrorist surveillance program put into effect by the President violates the Constitution and exceeds his constitutional authority in directly violating the statutory provision that the exclusive way to wiretap is with court approval. Here we have a situation where it is admitted that most Members of the House of Representatives, according to the House leadership, have not been briefed on the program. What we have are allegations in the legal papers as to having the telephone companies act at the request of the Government to invade privacy, without going through the customary judicial process of securing a warrant. On the floor yesterday, after extended argument, it is plain that most Members of the Senate have not been briefed on this program. There is an old expression, ``buying a pig in a poke.'' It means buying something and you don't know what it is you are buying. Well, that is what the Senate is being asked to do today--to grant retroactive immunity to a program where the Members don't know what the program is. How does that comport with our reputation that we in the Senate so pride ourselves on, being the world's greatest deliberative body? I suggest that this may be a historical embarrassment, where we are voting on matters where everybody knows we don't know what we are voting on. The fact may be that we vote with some frequency on matters that we don't know what we are voting on, where we have voluminous reports that are impossible for any Senator to go through. But here we are caught redhanded. Everybody knows we don't know what this program is; yet we are granting retroactive immunity to the telephone companies. I believe the telephone companies have been good citizens. There is a way to have the telephone companies protected without giving up the program. That would be by substituting the Government as a party defendant, so you could both have the program and have the telephone companies protected. Yesterday, in an extended discussion with the chairman of the Intelligence Committee and other Members on the floor, I pressed to see if anybody knew of any case that had been pending for more than 3 years, where Chief Judge Walker has handed down a lengthy opinion, running some 27 pages, on the issue of state secrets on this electronic surveillance. Just a week ago today, he handed down a 59-page opinion declaring that the Presidential power exceeded the constitutional authorization of article II. The first opinion is on appeal to the Court of Appeals for the Ninth Circuit. And here we are stripping the court of jurisdiction. I posed the question, Has that ever happened before? And it hasn't happened before. I intend to support the amendment and cosponsor the amendment by Senator Bingaman, which would follow up on what the inspectors general do, to have it returned to Congress to see if the program is working. That is a good remedial step, but it doesn't go far enough. It has too many ifs, ands, and buts in it. I think it is a good fallback position, and I will support it. I urge my colleagues not to take Senator Bingaman's amendment as a substitute for my amendment because it doesn't go as far and it doesn't reach the constitutional issues. We are dealing here with a matter that is of historic importance. I believe that years from now, historians will look back on this period from 9/11 to the present as the greatest expansion of Executive authority in history--unchecked expansion of authority. The President disregards the National Security Act of 1947 mandating notice to the Intelligence Committee; he doesn't do it. The President takes legislation that is presented by Congress and he signs it, and then he issues a signing statement disagreeing with key provisions. There is nothing Congress can do about it. The Supreme Court of the United States has gone absent without leave on the issue, in my legal opinion. When the Detroit Federal judge found the terrorist surveillance program unconstitutional, it was affirmed by the Sixth Circuit on a 2-to-1 opinion on grounds of lack of standing. Then the Supreme Court refused to review the case. But the very formidable dissenting opinion laid out all of the grounds where there was ample basis to grant standing. Now we have Chief Judge Walker declaring the act unconstitutional. The Congress ought to let the courts fulfill their constitutional function. It is understandable that Congress continues to support law enforcement powers because of the continuing terrorist threat. No one wants to be blamed for another 9/11. My own briefings on the telephone companies' cooperation with the Government have convinced me of the program's value, so I voted for it even though my amendment to substitute the Government for the telephone companies was defeated in the Senate's February vote. Similarly, with great reluctance, I am prepared to support it again as a last resort, even if it cannot be improved by providing for judicial review. However, since Congress has been so ineffective in providing a check and balance, I am fighting hard today again to secure passage of my amendment to keep the courts open. When the stakes are high, as they inevitably are, when Congress addresses civil liberties and national security, Members frequently must choose between the lesser of two imperfect options. Unfortunately, we too often back ourselves into these corners by deferring legislation until there is a looming deadline. Perhaps this is why so many of my colleagues have resigned themselves to accepting the current bill without seeking to improve it further. Although I am prepared to stomach this bill, if I must, I am not yet ready to concede that the debate is over. Contrary to the conventional wisdom, I don't believe it is too late to make this bill better. Perhaps the Fourth of July holiday will inspire the Senate to consider its independence from the executive branch now that we have returned to Washington. These issues are extraordinarily complex. It is my hope that my colleagues will focus on these two unprecedented acts where we are called upon to vote for something we admittedly do not know what we are voting for because we don't know what this program is; secondly, to take the unprecedented step of intervening in the judicial process on a case pending for more than 3 years in the Federal courts. I thank the Chair and yield the floor.

Mr. SPECTER. Mr. President, the Senate is not in order.

Mr. SPECTER. Mr. President, I urge my colleagues to vote for the pending amendment to avoid two unprecedented actions. One is that the Senate is being called upon to vote on retroactive immunity for a program that most of the Members do not know and have not been briefed on. We frequently vote on matters that we do not know about but not when it is so blatant, when it is on the record that we do not know about it, we are caught red-handed. We ought not to be giving retroactive immunity on a program where most of the Members have not been briefed. The second unprecedented act would be to intervene in a court decision which has been pending for 3 years, where a judge has found the terrorist surveillance program unconstitutional, where it is on appeal to the Ninth Circuit. And Marbury v. Madison, which is the cornerstone of this democracy, says the courts have to interpret the Constitution.

Mr. SPECTER. Vote for this amendment. I thank the Chair, especially for securing order. It is unprecedented. There is another unprecedented act today.

Mr. SPECTER

Mr. SPECTER. Madam President, this Medicare legislation is very important. I believe that it is vital for the Senate to take up this important measure to have open debate to give Senators an opportunity to offer amendments and to have the Senate work its will on these important questions. As noted in previous floor statements, I have been concerned about Majority Leader Reid's practice of employing a procedure known as filling the tree, which precludes Senators from offering amendments. This undercuts the basic tradition of the Senate to allow Senators to offer amendments. Regrettably, this has been a practice developed in the Senate by majority leaders on both sides of the aisle, so both Republicans and Democrats are to blame. On June 12, 2008, I voted in favor of cloture on the motion to proceed on S. 3101, legislation similar to H.R. 6331, the Medicare Improvements for Patients and Providers Act, to prevent the reduction in Medicare payments to physicians. At that time, I was assured by Majority Leader Reid that he would not make a procedural motion to fill the tree. Following the failure to obtain cloture on the motion to proceed to S. 3101, Finance Chairman Baucus and Ranking Member Grassley began to negotiate a bipartisan bill that could be brought before the Senate. I have concerns with some provisions that may have been contained in such an agreement. However, the prospect of the Senate working its will and allowing other Senators and me to offer amendments to such a bill is more favorable than filling the amendment tree. On June 26, 2008, the majority leader brought up H.R. 6331. The posture of the Senate was such that for the majority leader to complete action on H.R. 6331 and send it to the President before the physician payment reduction was scheduled to go into effect at the end of June, the Senate must pass the same legislation the House of Representatives passed. This is the case because the House of Representatives adjourned for the Independence Day recess prior to the Senate vote on cloture on the motion to proceed to H.R. 6331. Since the House went out of session, there was no possibility for the House to consider a Senate- amended Medicare bill. To guarantee that the same Medicare legislation would be passed by the Senate, no amendments to the legislation were permitted. By bringing this legislation up at the last minute after the House of Representatives adjourned, the majority leader prevented the opportunity to offer amendments and undermined Senate procedure. If cloture were to have been obtained on the motion to proceed to H.R. 6331 the legislation would have been vetoed by President Bush. That veto would have resulted in a further delay, since the House would not be in session to override the veto and the scheduled physician payment reductions would go into effect at the end of June. There was an expectation that the Senate would extend the current physician payment rate for 30 days and prevent the pending reduction from going into effect. However, when this legislative extension was offered by Senate Republican Leader McConnell it was objected to by Majority Leader Reid. The majority leader was aware of this issue for some time and scheduling should have accommodated the amendment process. I voted against cloture because there was no opportunity to amend the legislation that came before the Senate. On June 28, 2008, I wrote to President Bush requesting that he use his constitutional authority to call the Congress back into session so that the Senate could act on H.R. 6331 with appropriate amendments and send it back to the House for its concurrence. This would have allowed for prompt action on this important matter and prevented the payment reduction from going into effect. On Monday, Tuesday and Wednesday of this week, I spoke with Majority Leader Reid regarding today's vote on cloture on the motion to proceed to H.R. 6331. During those conversations I requested that he allow Senators to offer amendments to the legislation. On those occasions he said he would not allow amendments. During the vote, when more than 60 Senators had voted for cloture, it was not possible to preserve the principle of Senators' rights to offer amendments so I voted for cloture because I agreed with the objectives of this legislation. I have a strong history of preventing reduced payments to physicians. In April 2003, as Chairman of the Labor, Health and Human Services, and Education Appropriations Subcommittee; I worked to reverse a 4.4 percent cut in physician fees which had gone into effect in January of that year. This $54 billion effort also provided a 1.6 percent increase. In June 2003, I introduced an amendment to the Medicare Modernization Act to provide an increase in physician payments for 2 years. This provision was agreed to and was included in the bill. This prevented decreases in physician payments in 2004 and 2005, and increased payments by 1.5 percent in each of those years. I have consistently voted in favor of increasing Medicare physician payments and will continue to support the policy, but Senators must be allowed to offer amendments and let the Senate work its will.

Mr. SPECTER

Mr. SPECTER. Mr. President, would the distinguished Senator from Wisconsin yield for a question?