Arlen Specter

Mr. SPECTER

Mr. SPECTER. I also ask unanimous consent that the following statement highlighting praise for Judge Southwick be printed in the Record.

Mr. SPECTER. How much time remains, Mr. President?

Mr. SPECTER. In conclusion, in the last 3\1/2\ minutes I have, I wish to point out what has happened in this matter. Chairman Leahy advised me this nomination would go through the Judiciary Committee on a voice vote. Then, when that effort was made, Senator Feingold objected and any member of the Judiciary Committee has the right to hold over a nominee for 1 week. So, it did not go through on a voice vote, notwithstanding the fact that Senator Leahy, the chairman, said that was his plan. Senator McConnell has advised that the majority leader, Senator Reid, had said the nomination would be confirmed before the Memorial Day recess, which is some time ago now. So, this nomination was on the brink of confirmation, according to the chairman's statement that it would go through committee on a voice vote. He didn't expect someone to raise an objection, and he was powerless to move it on a voice vote once an objection was raised, but that was his expectation and mine. And, as I said, the majority leader told the Republican leader there would be a confirmation before the Memorial Day recess. It is my hope we will not allow partisanship to once again grip this body. This Senate, under Republican control, wouldn't give hearings to President Clinton's nominees and wouldn't bring them up for floor votes. I objected to that, bucking my party, crossing party lines, and voting for Clinton nominees. We had protracted filibusters in 2004 and threats of the Constitutional--or ``nuclear''--option. I hope we do not go back to that. This body, as we all know, works on unanimous consent. Any Senator can raise an objection to dispensing with a reading of an amendment or a reading of the record, as we saw during the immigration debate, and can tie up this Senate endlessly if someone wants to impede the work of the Senate. It is my hope we will not descend to that. We have very important matters to take up--Iraq, the Department of Defense reauthorization bill, the override of the President's veto on stem cells, and many appropriations bills. This man, Judge Southwick--I have gone through his record in detail. My own record on the Judiciary Committee is one of nonpartisanship. If I have found nominees submitted by Republican Presidents to be objectionable, I have not hesitated to say so. But this man has an impeccable record, an outstanding record, with 985 authored opinions. The two opinions that have been called into question are opinions which he didn't write, but merely joined, on matters which--while they might have been articulated differently, might have been more sensitive--certainly are not disqualifiers. This man ought to be confirmed. I have taken the time to go into some detail on his record because I have told my colleagues about his record and many people have been surprised there is controversy. I thank the distinguished Senator from Pennsylvania for sitting overtime and my colleague from Minnesota for her patience--I think she has been patient--and yield the floor.

Mr. SPECTER

Mr. SPECTER. I would like 15 minutes, Mr. President. I understand Senator Byrd has a short statement, so I will defer to him.

Mr. SPECTER. I thank the Senator. The Homeland Security Appropriations

Mr. SPECTER. Madam President, I have sought recognition to conclude the statements I had made earlier today after being interrupted by the Senator from Nevada, that I might say accurately, rudely interrupted. I was speaking in the context of reserving a right to object to a unanimous consent request, and the technical rules provide that speeches may not be made but only an objection lodged. But it has been the common practice in this body to allow a Senator who reserves the right to object to make a statement as to why the objection is being lodged. This is in reply to the Senator asking unanimous consent and who has spoken at some length to give the reasons why an objection is being lodged. When the majority leader cut me off, then made reference to what the people of Pennsylvania want, the last time I looked, Senator Casey and Senator Specter represented the people of Pennsylvania, not Senator Harry Reid. When he talks about my State, then he talks about me, and he raises an intonation that I did not know what my constituents want. I at least ought to have an opportunity to reply because I think I know more about Pennsylvania than Senator Reid does. But to be cut off in that context was rude, to say the minimum. There are rules and there are customs, there are accepted practices. It is the custom of this body, when a Senator reserves a right to object and seeks to make a statement, to let him make the statement. That is the custom and that is the accepted practice. When the majority leader talks about the rules, we saw on the immigration bill how one Senator can tie this place up in knots, can bring the Senate to a screeching halt by utilizing the rules: asking for the full text of amendments be read, asking that the previous day's business be read. The rules would permit any Senator to stop the Senate in its tracks from doing any business. So there is something more than the rules. There is the custom and there is the accepted practice that if the Senate does not run on comity, on courtesy, on basic decency, the Senate cannot run at all. Now, I had made the comment about reserving the right to object because I strenuously object to what has transpired in this body in the past 24 hours. We had a meaningless, insulting, all-night session for absolutely no purpose. It was an indignity to the Senators who were kept here all night to vote on a procedure that had no purpose whatsoever. The Senate luxuriates in its reputation as the world's greatest deliberative body. But last night's performance made us the laughingstock of the world. There was no way that anything meaningful would happen as a result of a vote on the Levin-Reed amendment. There is no doubt that there are not 67 votes present to override a veto. There is little doubt that there are not 60 votes present to bring the issue to a vote. So what were we doing on an all-night session? The majority leader stated the purpose was to show the American people he would not back down. Well, I think he showed the American people how ineffective he is. The time when the majority leader and the Democratic leadership in the Congress could have asserted itself was on the supplemental appropriations bill. That was the bill which the President needed to continue funding the war in Iraq. We were out of money. It took $100 billion, approximately, to move forward. That was the point where, as the majority leader said, he wanted a majority of 51-vote majority to express the will of the Congress, it could have been done. The Democratic leadership in the Congress backed down. I thought they did so appropriately in a contest with the President because the safety of the troops was involved. But that was the time to take a stand if the majority leader wanted to have a vote of 51. When he takes down the Department of Defense authorization bill, it is not his bill alone, it is not just the Levin-Reed amendment, there are a lot of other provisions in that bill. Senator Leahy and I had an important amendment on habeas corpus which is relevant to the operation of the Department of Defense and Guantanamo, and the detention of many men who have been denied rights established in 1215 under the Magna Carta, and this body unadvisedly, erroneously legislated to take away that habeas right. I continue to think it would be corrected in the courts, but that is another matter too lengthy to go into now. But Senator Leahy and I had that amendment pending. Senator Kerry and I and others have an amendment pending on signing statements, where the President has disregarded the legislation passed by the Congress to cherry-pick and add limitations in so-called signing statements. There was also an amendment which this Senator had proposed to bring up for a vote on rendition. So there was a great deal more to be done on this bill than Iraq alone. But with respect to Iraq, there were other amendments which ought to be considered, and which should have been considered, without the majority leader taking the bill down. We could have debated the Levin- Reed amendment in a few hours and we could have debated the Warner- Lugar amendment in a few hours and we could have debated the Salazar- Alexander amendment in a few hours and we could have done it during the daytime yesterday, instead of having quorum calls consume the time of the Senate when nothing is done here, until the majority leader decides to exercise his power to keep the Senate in all night on a meaningless, insulting session. But there are important matters to be debated on what Senator Warner and Senator Lugar have proposed. They have suggested, and they filed an amendment, directing the President to prepare a plan by October 16, a plan which would contemplate withdrawal starting December 31. But it did not tell the President he had to do it, and there is a serious constitutional question with the President's authority as Commander in Chief. Certainly, Congress cannot micromanage the war. The question about putting limitations on Presidential authority is a tough issue, but it would be well to have the President plan for a contingency. We know the planning has been insufficient, no planning as to what would happen after Saddam Hussein fell. So when Senator Warner and Senator Lugar wanted to put that forward, we should have debated it. When it calls for consideration of withdrawal on December 31, we should have debated it. When they call in that amendment for another resolution defining the scope of the President's authority on the war, we should have debated it. Senator Salazar and Senator Alexander had an amendment which would incorporate the findings of the Iraq Study Group. I was seriously considering, still am considering, cosponsoring those amendments. I think had we known Saddam Hussein did not have weapons of mass destruction, we would not have gone into Iraq. But once in Iraq, we do not want to leave it in an unstable situation and in turmoil. We have had very forceful statements from very prominent Republican supporters of the President that if there is not real progress, significant progress by September, the funding will not be continued. I have said that if we do not have the metaphor of ``a light at the end of a tunnel'' by September, that funding is in serious question. But those are not matters which we are going to decide in July; those are matters which we will decide in September. After we have the report by General Petraeus and after we have the President's report, we will make a judgment as to what we will do in September. That was the import of the appropriations bill which we passed 2 months ago, funding through September 30. The issue of funding for the next fiscal year is one which this Congress will have to decide when the issue is ripe. I am uncertain as to what my vote will be. But I do believe that if there is not a light at the end of the tunnel, that it is a very questionable matter to proceed indefinitely because of the failure of the Iraqis to live up to their commitments to end sectarian violence, to deal with the legislative proposals in their Parliament on oil revenues and many other matters. But I hope we will see a reevaluation of what is going to be done in the Senate. This body is very different than it was when I was elected in 1980, very different from what it was when Senator Byrd was elected in 1958 and Senator Biden was elected in 1972. With Senator Byrd and Senator Biden, there is real comity, and so with Senator Leahy and myself on Judiciary and Senator Harkin and myself on the appropriations subcommittee. But that is the exception, regrettably, rather than the rule around here. When a Senator seeks to speak, he ought to be accorded some basic courtesy and comity on what is custom and what is practice. I had a short talk with Senator Lott after the majority leader interrupted me, and Senator Lott said the majority leader did the same thing to him a couple of days ago. When Senator Lott was majority leader, he didn't have that practice. Senator Lott said the majority leader wanted to publicly apologize. Senator Lott said: Not necessary. Public apologies don't mean much. It doesn't mean much to make this speech to an empty Chamber, frankly. The time I should have been heard was when Senators were on the floor, when Senators were considering what the majority leader had done in taking down the bill. That is when it was right. As I sat here waiting for time to speak and consulting with the managers of the bill to get their consent, the majority leader came over and said: I will see to it that you get recognized first. I said: No, thanks, I will get myself recognized. There is a time when no one else is around and on a jump ball a Senator can get recognized. Those practices, I think, are not only rude but dictatorial-- dictatorial to flout the custom and the practice of this body and to go back to technical rules. If those technical rules are applied, and any one of us can do it, this body will cease to function. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to join Senator Bingaman, chairman of the Senate Committee on Energy and Natural Resources, in introducing the Low Carbon Economy Act of 2007. This legislation represents the most comprehensive and responsible approach to date in reducing our Nation's greenhouse gas emissions, which contribute to the growing threat of global climate change. The amount and quality of scientific data continue to improve our understanding of global climate change. This information points toward potentially severe ramifications for Earth's climate, ecosystems, and life as we know it. The most recent assessment in February 2007 by the Intergovernmental Panel on Climate Change, IPCC, concluded that ``most of the observed increase in globally averaged temperatures since the mid-20th century is very likely due to the observed increase in anthropogenic greenhouse gas concentrations.'' This 90 percent likelihood of human impact on the global climate adds to the compelling case that action to fight climate change is warranted. Some skeptics of the human contribution to this global problem remain, however their voices grow more distant as more information comes to light. Given past uncertainties, I have previously been unable to support legislative proposals which have threatened U.S. economic interests without meaningful environmental benefit. The Senate voted 95-0 in 1997 to overwhelmingly support the Byrd-Hagel resolution, S. Res. 98, rejecting the Kyoto protocol for its unequal treatment of developed and developing nations, as well as the potential serious harm to the U.S. economy. Subsequently, the Senate has twice voted on climate change legislation offered by Senators McCain and Lieberman-- failing by votes of 43-55 in 2003 and 38-60 in 2005. As I stated on the Senate floor at the time, the McCain-Lieberman bill did not contain adequate consideration of the U.S. economy, nor did it adequately address the global nature of the problem. However, due to my increasing concerns about the threats of climate change, in 2005, I joined Senator Bingaman in offering an amendment to the Energy Policy Act, amendment No. 866, which was passed by voice vote after an unsuccessful attempt--43-54 vote to table'' or set it aside. The amendment called on the U.S. Congress to ``enact a comprehensive and effective national program of mandatory, market-based limits and incentives on emissions of greenhouse gases that slow, stop, and reverse the growth of such emissions at a rate and in a manner that: (1) will not significantly harm the United States economy; and (2) will encourage comparable action by other nations that are major trading partners and key contributors to global emissions.'' In January of this year, Senator Bingaman and I announced a ``discussion draft'' of legislation to achieve these goals. Today, we are introducing a revised bill which has been shaped by a comprehensive and inclusive stakeholder process which brought together over 300 representatives of consumers, energy producers, manufacturers, workers, and environmental advocacy organizations, as well as numerous Senate offices. The ``Low Carbon Economy Act'' creates a strong and credible approach to reduce U.S. greenhouse gas, GHG, emissions while protecting the U.S. economy and engaging developing countries. The act creates a cap-and- trade program for U.S. GHG emissions that is modeled on the successful Acid Rain Program. By setting an annual target and allowing firms to buy, sell, and trade credits to achieve the target, the program is designed to elicit the most cost-effective reductions across the economy. The target is set to avoid harm to the economy and promote a gradual but decisive transition to new, low-carbon technologies. The strategic targets of the act are: reducing U.S. GHG emissions to 2006 levels by 2020 and 1990 levels by 2030. To limit economic uncertainty and price volatility, the government would allow firms to make a payment at a fixed price in lieu of submitting allowances. This fee, referred to in the bill as the ``Technology Accelerator Payment''--TAP--starts at $12 per metric ton of CO2- equivalent in the first year of the program and rises steadily each year thereafter at 5 percent above the rate of inflation. If technology improves rapidly and if additional GHG reduction policies are adopted, the TAP option will never be engaged. Conversely, if technology improves less rapidly than expected and program costs exceed predictions, companies could make a payment into the energy technology deployment fund at the TAP price, to cover a portion or all of their allowance submission requirement. Under the act, carbon dioxide (CO2) emissions from petroleum and natural gas are regulated ``upstream''--that is, at or close to the point of fuel production. For these fuels, regulated entities are required to submit tradable allowances equal to the carbon content of fuels produced or processed at their facilities. Regulated entities that must submit allowances include: petroleum refineries, natural gas processing facilities, fossil fuel importers, large coal- consuming facilities, and producers/importers of non-CO2 GHGs. GHG emissions from coal are regulated ``downstream'' at the point of fuel consumption. The proposal sets out a detailed methodology for distributing tradable emission allowances. At the beginning of the program in 2012, a majority--53 percent--of allowances are given out for free to the private sector. This amount is gradually reduced each year after the first 5 years of the program. In addition, 8 percent of allowances will be set aside annually to create incentives for carbon capture and storage to jump-start these critical technologies; 24 percent of total allowances will be auctioned by the government to generate much-needed revenue for the research, development, and deployment of low- and no- carbon technologies, to provide for climate change adaptation measures, and to provide assistance to low-income households; 5 percent of allowances are reserved to promote agricultural sequestration; and 1 percent of the allowances will reward companies that have undertaken ``early actions'' to reduce emissions before program implementation. Another 9 percent of the allowances are to be distributed directly to States which can use associated revenues at their discretion to address regional impacts, promote technology or energy efficiency, and enhance energy security. To effectively engage developing countries, the act would fund joint research and development partnerships and technology transfer programs similar to the Asia Pacific Partnership. The bill also calls for a 5- year review process that provides an opportunity to reassess domestic action in light of efforts by our major trade partners--and relevant scientific and technological developments. If other countries are deemed to be making inadequate efforts, the President could recommend to Congress that products imported from such countries must be accompanied by allowances--from a separate reserve of allowances-- sufficient to cover their embedded greenhouse-gas content. If there is sufficient international progress in reducing global greenhouse gas emissions, the President could recommend changes in the U.S. program designed to achieve further reductions--e.g., to at least 60 percent below 2006 levels by 2050. There are many other provisions of this comprehensive legislation that help set the U.S. on the right track in taking meaningful steps to combat global climate change and put our trading partners on notice that we take this issue very seriously. Strong U.S. leadership will go a long way in moving the Nation and the world toward a cleaner and more sustainable future. I am pleased that the legislation we introduce today has so much support from labor groups, energy companies, and conservation and sportsmen organizations. Senator Bingaman and I intend to work closely with our colleagues and all interested stakeholders to answer questions and consider feedback on our proposal. I invite my colleagues to join us in cosponsoring the Low Carbon Economy Act of 2007 and I look forward to a meaningful debate on global climate change and the U.S. role in leading the world in technology development.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to join Senator Bingaman, chairman of the Senate Committee on Energy and Natural Resources, in introducing the Low Carbon Economy Act of 2007. This legislation represents the most comprehensive and responsible approach to date in reducing our Nation's greenhouse gas emissions, which contribute to the growing threat of global climate change. The amount and quality of scientific data continue to improve our understanding of global climate change. This information points toward potentially severe ramifications for Earth's climate, ecosystems, and life as we know it. The most recent assessment in February 2007 by the Intergovernmental Panel on Climate Change, IPCC, concluded that ``most of the observed increase in globally averaged temperatures since the mid-20th century is very likely due to the observed increase in anthropogenic greenhouse gas concentrations.'' This 90 percent likelihood of human impact on the global climate adds to the compelling case that action to fight climate change is warranted. Some skeptics of the human contribution to this global problem remain, however their voices grow more distant as more information comes to light. Given past uncertainties, I have previously been unable to support legislative proposals which have threatened U.S. economic interests without meaningful environmental benefit. The Senate voted 95-0 in 1997 to overwhelmingly support the Byrd-Hagel resolution, S. Res. 98, rejecting the Kyoto protocol for its unequal treatment of developed and developing nations, as well as the potential serious harm to the U.S. economy. Subsequently, the Senate has twice voted on climate change legislation offered by Senators McCain and Lieberman-- failing by votes of 43-55 in 2003 and 38-60 in 2005. As I stated on the Senate floor at the time, the McCain-Lieberman bill did not contain adequate consideration of the U.S. economy, nor did it adequately address the global nature of the problem. However, due to my increasing concerns about the threats of climate change, in 2005, I joined Senator Bingaman in offering an amendment to the Energy Policy Act, amendment No. 866, which was passed by voice vote after an unsuccessful attempt--43-54 vote to table'' or set it aside. The amendment called on the U.S. Congress to ``enact a comprehensive and effective national program of mandatory, market-based limits and incentives on emissions of greenhouse gases that slow, stop, and reverse the growth of such emissions at a rate and in a manner that: (1) will not significantly harm the United States economy; and (2) will encourage comparable action by other nations that are major trading partners and key contributors to global emissions.'' In January of this year, Senator Bingaman and I announced a ``discussion draft'' of legislation to achieve these goals. Today, we are introducing a revised bill which has been shaped by a comprehensive and inclusive stakeholder process which brought together over 300 representatives of consumers, energy producers, manufacturers, workers, and environmental advocacy organizations, as well as numerous Senate offices. The ``Low Carbon Economy Act'' creates a strong and credible approach to reduce U.S. greenhouse gas, GHG, emissions while protecting the U.S. economy and engaging developing countries. The act creates a cap-and- trade program for U.S. GHG emissions that is modeled on the successful Acid Rain Program. By setting an annual target and allowing firms to buy, sell, and trade credits to achieve the target, the program is designed to elicit the most cost-effective reductions across the economy. The target is set to avoid harm to the economy and promote a gradual but decisive transition to new, low-carbon technologies. The strategic targets of the act are: reducing U.S. GHG emissions to 2006 levels by 2020 and 1990 levels by 2030. To limit economic uncertainty and price volatility, the government would allow firms to make a payment at a fixed price in lieu of submitting allowances. This fee, referred to in the bill as the ``Technology Accelerator Payment''--TAP--starts at $12 per metric ton of CO2- equivalent in the first year of the program and rises steadily each year thereafter at 5 percent above the rate of inflation. If technology improves rapidly and if additional GHG reduction policies are adopted, the TAP option will never be engaged. Conversely, if technology improves less rapidly than expected and program costs exceed predictions, companies could make a payment into the energy technology deployment fund at the TAP price, to cover a portion or all of their allowance submission requirement. Under the act, carbon dioxide (CO2) emissions from petroleum and natural gas are regulated ``upstream''--that is, at or close to the point of fuel production. For these fuels, regulated entities are required to submit tradable allowances equal to the carbon content of fuels produced or processed at their facilities. Regulated entities that must submit allowances include: petroleum refineries, natural gas processing facilities, fossil fuel importers, large coal- consuming facilities, and producers/importers of non-CO2 GHGs. GHG emissions from coal are regulated ``downstream'' at the point of fuel consumption. The proposal sets out a detailed methodology for distributing tradable emission allowances. At the beginning of the program in 2012, a majority--53 percent--of allowances are given out for free to the private sector. This amount is gradually reduced each year after the first 5 years of the program. In addition, 8 percent of allowances will be set aside annually to create incentives for carbon capture and storage to jump-start these critical technologies; 24 percent of total allowances will be auctioned by the government to generate much-needed revenue for the research, development, and deployment of low- and no- carbon technologies, to provide for climate change adaptation measures, and to provide assistance to low-income households; 5 percent of allowances are reserved to promote agricultural sequestration; and 1 percent of the allowances will reward companies that have undertaken ``early actions'' to reduce emissions before program implementation. Another 9 percent of the allowances are to be distributed directly to States which can use associated revenues at their discretion to address regional impacts, promote technology or energy efficiency, and enhance energy security. To effectively engage developing countries, the act would fund joint research and development partnerships and technology transfer programs similar to the Asia Pacific Partnership. The bill also calls for a 5- year review process that provides an opportunity to reassess domestic action in light of efforts by our major trade partners--and relevant scientific and technological developments. If other countries are deemed to be making inadequate efforts, the President could recommend to Congress that products imported from such countries must be accompanied by allowances--from a separate reserve of allowances-- sufficient to cover their embedded greenhouse-gas content. If there is sufficient international progress in reducing global greenhouse gas emissions, the President could recommend changes in the U.S. program designed to achieve further reductions--e.g., to at least 60 percent below 2006 levels by 2050. There are many other provisions of this comprehensive legislation that help set the U.S. on the right track in taking meaningful steps to combat global climate change and put our trading partners on notice that we take this issue very seriously. Strong U.S. leadership will go a long way in moving the Nation and the world toward a cleaner and more sustainable future. I am pleased that the legislation we introduce today has so much support from labor groups, energy companies, and conservation and sportsmen organizations. Senator Bingaman and I intend to work closely with our colleagues and all interested stakeholders to answer questions and consider feedback on our proposal. I invite my colleagues to join us in cosponsoring the Low Carbon Economy Act of 2007 and I look forward to a meaningful debate on global climate change and the U.S. role in leading the world in technology development.

Mr. SPECTER

Mr. SPECTER. Mr. President, I thank my distinguished colleague from Vermont, the chairman of the Judiciary Committee, for his generous remarks. I compliment him on his leadership on the committee and for his work generally, but especially on our efforts to restore habeas corpus. The Great Writ has been the law since 1215 for Great Britain, and it has been the law of the United States of America since the founding of the Constitution. That writ allows someone in detention to receive evidence of a reason for detention before the detention can continue. Regrettably, the legislation in the Military Commissions Act, passed last year, eliminated the writ of habeas corpus. I offered an amendment last September, which was defeated narrowly 48 to 51, and then on December 5, 2006. Again on January 4 of this year, with the new Congress, I reintroduced legislation to bring back the writ of habeas corpus. We have on the detainees in Guantanamo a procedure on what is called the Combat Status Review Board. The procedures there are fundamentally unfair in not establishing any colorable reason for detention. That has been demonstrated in a variety of contexts. One which I would quote at the outset is an opinion which appears in 355 F. Supp. 443, in a case captioned ``In re Guantanamo Detainee Cases,'' where the court comments about the procedures in the case captioned ``Boumediene v. Bush.'' This involves an individual, a detainee, who was charged with associating with al-Qaida. This is what the transcript says. Detainee: Give me his name. Tribunal President: I do not know. Detainee: How can I respond to this? Then the detainee goes on to comment about his inability to respond to the charges that he associated with someone from al-Qaida because he does not have any way to identify the individual with whom he was supposed to have associated. Nobody could even give him his name. At one point the detainee comments about his difficulty in responding to a charge when there is no charge, and as the opinion says, everyone in the tribunal laughs. The court notes the laughter reflected in the transcript is understandable. This exchange might have been truly humorous had the consequences of the detainee's enemy combatant status not been so terribly serious and had the detainee's criticism of this process not been so piercingly accurate. But here is a case reported where the Combat Status Review Board upheld detention when they could not even tell the detainee the identity of the person who was supposedly an al-Qaida person with whom he was supposed to have been associated. There has been considerable comment about the fundamentally unfair tactics in the Combat Status Review Board, but none came into sharper focus than the declaration of LTC Stephen Abraham, who worked on the Combat Status Review Board, and who found, with some substantial detail, the process was fundamentally flawed. Results were influenced by pressure from superiors rather than based on concrete evidence. I ask unanimous consent, Mr. President, that the text of the declaration of LTC Stephen Abraham be printed in the Record at the end of my remarks to permit me to abbreviate the length of this floor statement.

Mr. SPECTER. The Court of Appeals for the District of Columbia came down with the decision in the Boumediene case saying that the act of Congress was effective in eliminating habeas corpus, but in so doing, the Court of Appeals for the District of Columbia really ignored the decision of the Supreme Court of the United States in Rasul v. Bush. To read the opinion of the Court of Appeals, for a student of the law, is not hard to understand; it is impossible to understand. I think a fair reading of the circuit opinion, simply stated, is that they flagrantly disregarded the holding of the Supreme Court of the United States, which under our system of laws they are obligated to uphold. They analyzed Rasul and said Rasul was based on the statute providing for habeas corpus and not on the constitutional mandate that habeas corpus is a part of the Constitution of the United States. There can be no doubt that habeas corpus is a constitutional mandate because the Constitution explicitly states that habeas corpus may be suspended only in time of invasion or rebellion, and no one contends that we have either invasion or rebellion. The opinion of Rasul is explicit. Mr. President, I ask unanimous consent that relevant portions of the Rasul opinion be printed in the Record following my statement--

Mr. SPECTER. Without taking the time to read them into the Record now because they are apparent on their face that the opinion by Justice Stevens goes through the chronology of the writ, starting with King John at Runnymede in 1215 and running through the adoption of the constitutional provision in the U.S. Constitution. Now, it is true there is also a statute which provides for a writ of habeas corpus. The Court of Appeals said the portion of Justice Stevens' opinion as to the constitutional basis for habeas corpus was dictum and that the holding involved the statute. The Court of Appeals says since the holding involved the statute, the statute could be changed. It is true the statute was changed by the Congress of the United States, but the Congress of the United States, by statute, cannot change the constitutional mandate of habeas corpus. For the Court of Appeals for the District of Columbia to say the constitutional basis for habeas corpus in Rasul was not the holding but only the statute was the holding is, simply stated, ridiculous. It is insulting to the Supreme Court of the United States for what the Court of Appeals for the District of Columbia did. Pretty harsh words, but accurate words, and I say them with respect for every court. But as a lawyer who has worked with the Constitution for a number of decades, it was hard for me to comprehend how the District of Columbia Court of Appeals could come to that conclusion. But they did. Well, I think it is about to be corrected. There has been a curious history on the petition for a writ of certiorari to review the decision by the Court of Appeals for the District of Columbia. There were only three votes for the original petition for a writ of certiorari, which surprised people because Justice Stevens did not vote for certiorari. But, instead, he joined with Justice Kennedy in an opinion saying they would await another appeal from the Combat Status Review Board. The speculation by the analysts was that Justice Stevens was reluctant to see certiorari granted because Rasul might be overruled. But then after the declaration of LTC Stephen Abraham appeared in the public press, there was a petition for reconsideration of the writ of certiorari. On this occasion, it was granted in a very unusual procedure. It made the front pages. I have studied the Constitution for a long time, and I did not know that a petition for reconsideration on a writ of certiorari takes five votes. Perhaps my distinguished colleague from Vermont knew that. I asked that question of quite a few lawyers. I have not found one yet, and some very learned in constitutional law who knew if you petition for reconsideration on a writ of certiorari, it takes five votes.

Mr. SPECTER. Mr. President, I thank my colleague from Vermont for those comments. I do not think there is a more important issue to come before this body. What happens in Iraq, obviously, is of enormous importance. But if we lose the basic fundamental rights to require evidence before somebody is held in detention, if we lose the right of habeas corpus, it is a very sad day in America. But, in any event, now the Supreme Court of the United States has granted certiorari in the Boumediene case. The speculation is that Justice Kennedy was the fifth vote, along with Justice Stevens. They do not tell you who the five votes are, but we know there were three votes initially from Justice Souter and Justice Breyer and Justice Ginsburg granting it, voting to grant certiorari before, and Justice Stevens and Justice Kennedy writing a separate opinion, and the other four Justices voting to deny certiorari. So I think this case is headed to the Supreme Court of the United States for reversal by the opinion by the Court of Appeals for the District of Columbia. But I believe the Congress should act in the interim. That is why Senator Leahy and I are pressing this issue on the Department of Defense authorization bill. I hope it will not be cited as grounds for veto if we are successful in putting this amendment through. We cannot offer it yet because there is an amendment pending, and the request to set the amendment aside, which requires unanimous consent, was objected to. But this is a very important amendment. The procedures in Guantanamo under the Combat Status Review Board are woefully inadequate, do not satisfy the requirements of the Supreme Court of the United States in having a collateral proceeding which is adequate to protect the rights of someone who is in detention. So when we are permitted to offer the amendment, we will do so. But I ask my colleagues to consider the background as to what has happened here, the importance of it and its abrogation, what is happening with Guantanamo, the disrepute there, and what is happening with the Combat Status Review Board so that the Congress can correct what I consider to be an error made last year and stand up and not await a decision by the Supreme Court of the United States. I thank the Chair, and I yield the floor. Exhibit 1 Declaration of Stephen Abraham, Lieutenant Colonel, United States Army Reserve, June 15, 2007 I, Stephen Abraham, hereby declare as follows: 1. I am a lieutenant colonel in the United States Army Reserve, having been commissioned in 1981 as an officer in Intelligence Corps. I have served as an intelligence officer from 1982 to the present during periods of both reserve and active duty, including mobilization in 1990 (``Operation Desert Storm'') and twice again following 9-11. In my civilian occupation, I am an attorney with the law firm Fink & Abraham LLP in Newport Beach, California. 2. This declaration responds to certain statements in the Declaration of Rear Admiral (Retired) James M. McGarrah (``McGarrah Dec.''), filed in Bismullah v. Gates, No. 06-1197 (D.C. Cir.). This declaration is limited to unclassified matters specifically related to the procedures employed by Office for the Administrative Review of the Detention of Enemy Combatants (``OARDEC'') and the Combatant Status Review Tribunals (``CSRTs'') rather than to any specific information gathered or used in a particular case, except as noted herein. The contents of this declaration are based solely on my personal observations and experiences as a member of OARDEC. Nothing in this declaration is intended to reflect or represent the official opinions of the Department of Defense or the Department of the Army. 3. From September 11, 2004 to March 9, 2005, I was on active duty and assigned to OARDEC. Rear Admiral McGarrah served as the Director of OARDEC during the entirety of my assignment. 4. While assigned to OARDEC, in addition to other duties, I worked as an agency liaison, responsible for coordinating with government agencies, including certain Department of Defense (``DoD'') and non-DoD organizations, to gather or validate information relating to detainees for use in CSRTs. I also served as a member of a CSRT, and had the opportunity to observe and participate in the operation of the CSRT process. 5. As stated in the McGarrah Dec., the information comprising the Government Information and the Government Evidence was not compiled personally by the CSRT Recorder, but by other individuals in OARDEC. The vast majority of the personnel assigned to OARDEC were reserve officers from the different branches of service (Army, Navy, Air Force, Marines) of varying grades and levels of general military experience. Few had any experience or training in the legal or intelligence fields. 6. The Recorders of the tribunals were typically relatively junior officers with little training or experience in matters relating to the collection, processing, analyzing, and/or dissemination of intelligence material. In no instances known to me did any of the Recorders have any significant personal experience in the field of military intelligence. Similarly, I was unaware of any Recorder having any significant or relevant experience dealing with the agencies providing information to be used as a part of the CSRT process. 7. The Recorders exercised little control over the process of accumulating information to be presented to the CSRT board members. Rather, the information was typically aggregated by individuals identified as case writers who, in most instances, had the same limited degree of knowledge and experience relating to the intelligence community and intelligence products. The case writers, and not the Recorders, were primarily responsible for accumulating documents, including assembling documents to be used in the drafting of an unclassified summary of the factual basis for the detainee's designation as an enemy combatant. 8. The information used to prepare the files to be used by the Recorders frequently consisted of finished intelligence products of a generalized nature--often outdated, often ``generic,'' rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals' status. 9. Beyond ``generic'' information, the case writer would frequently rely upon information contained within the Joint Detainee Information Management System (``JDIMS''). The subset of that system available to the case writers was limited in terms of the scope of information, typically excluding information that was characterized as highly sensitive law enforcement information, highly classified information, or information not voluntarily released by the originating agency. In that regard, JDIMS did not constitute a complete repository, although this limitation was frequently not understood by individuals with access to or who relied upon the system as a source of information. Other databases available to the case writer were similarly deficient. The case writers and Recorders did not have access to numerous information sources generally available within the intelligence community. 10. As one of only a few intelligence-trained and suitably cleared officers, I served as a liaison while assigned to OARDEC, acting as a go-between for OARDEC and various intelligence organizations. In that capacity, I was tasked to review and/or obtain information relating to individual subjects of the CSRTs. More specifically, I was asked to confirm and represent in a statement to be relied upon by the CSRT board members that the organizations did not possess ``exculpatory information'' relating to the subject of the

Mr. SPECTER

Mr. SPECTER. In accordance with the practice Chairman Leahy and I adopted in the good old days. The second nominee, Janet Neff, in the court of the Western District of Michigan, was born in Wilkinsburg, PA, is a University of Pittsburgh graduate, and is rated ``majority qualified'' and others rated ``well qualified.'' She has an outstanding academic and professional record. The third nominee is Paul Lewis Maloney, again for the Western District of Michigan, again a Pennsylvania connection. He received a bachelor's degree from Lehigh University. His ABA rating was unanimously ``well qualified.'' The fourth nominee is Robert James Jonker, again from the Western District of Michigan. I am not distressed, but I note no Pennsylvania connection here. But I know the distinguished presiding Senator from Michigan will be relieved to have these three nominees confirmed because there has been a judicial emergency, and on occasion the Congressman from the area has been on the Senate floor urging us to confirm these nominees. I think we will get there today. Exhibit 1 Liam O'Grady United States District Judge for the Eastern District of Virginia Birth September 24, 1950; Newark, New Jersey. Legal Residence Virginia. Education B.A., Franklin & Marshall College, 1973. J.D., George Mason University School of Law, 1977. Employment Pension Examiner, United Mine Workers of America, Welfare & Retirement Fund, 1973-1975. Attorney Advisor and Law Clerk, Administrative Law Judge George Koutras, Departments of Interior and Labor, 1976-1979. Sole Practitioner, Private Practice, 1979-1982. Assistant Commonwealth's Attorney, Office of the Virginia Commonwealth's Attorney, 1982-1986. Assistant U.S. Attorney, Department of Justice, 1986-1992-- Chief of the Narcotics Section (four years); Acting Chief of the Criminal Division (one year). Adjunct Professor, George Washington University, Columbia Graduate School for Forensic Sciences, 1986-1994. Partner, Finnegan, Henderson, Farabow, Garrett, & Dunner,

Mr. SPECTER. Madam President, the existing order is to have consideration of four nominees for the U.S. district court. I urge my colleagues to confirm all of them. The first is Liam O'Grady for the Eastern District of Virginia. I am pleased to see that there are substantial Pennsylvania connections with these nominees. Liam O'Grady received a bachelor's degree from Franklin & Marshall College in Lancaster. I am interested to see his diversification of employment. He was a pension examiner for the United Mine Workers of America, Welfare and Retirement Fund, as well as other outstanding credentials, and was rated unanimously ``well qualified'' by the American Bar Association. I ask unanimous consent to have the full records of these nominees printed in the Record following my remarks.

Mr. SPECTER. Madam President, I think it is unnecessary to speak at length about any of these nominees because they all passed unanimously from the Judiciary Committee, and it would be my expectation, based on prior practices, that they would all be confirmed. I would be surprised if there were any negative votes at all. It may be even possible to abbreviate the proceedings today with some voice votes. That is the decision for the distinguished chairman. We will come to that later.

Mr. SPECTER. I was commenting that all were passed out unanimously by the Judiciary Committee. I said it was my expectation from prior practice that they would probably be confirmed unanimously. I would be surprised if we have a dissenting vote among the four. And I said I am not going to speak long. I am putting their records into the Record. I said it might even be possible to abbreviate the rollcalls. That is the chairman's call.

Mr. SPECTER

Mr. SPECTER. Madam President, I wish to make a comment or two on the subject broached by the distinguished chairman of the committee on the current issue with the challenge on executive privilege where letters were received today from the White House Counsel indicating that executive privilege would be asserted. It is my hope that we will yet be able to resolve this controversy because of the importance of getting the information which the Judiciary Committee has sought in its oversight capacity. We are dealing with a Department of Justice which I think, fairly stated, is dysfunctional. We have seen the Attorney General of the United States come before the Judiciary Committee and say he was not involved in discussions, not involved in deliberations, and then was contradicted by three of his top deputies, contradicted by documentary evidence in the e-mails. I think it is generally conceded that the President of the United States has the authority to remove U.S. attorneys for no reason, just as President Clinton did when he took office in 1993, but you cannot remove a U.S. attorney for a bad reason. There have been questions raised as to the request for the resignation from the U.S. attorney from San Diego, that she perhaps was hot on the trail of confederates of former Congressman Duke Cunningham, who is serving 8 years in jail. I do not know whether that is true. We have yet not had an explanation from the Department of Justice as to why her resignation was requested. Similarly, a cloud has existed over the reasons for the requested resignation for the U.S. attorney from New Mexico, with some suggestions that he was asked to resign because he would not bring prosecutions for vote fraud when he thought there was no basis, and some of us thought there was a basis. That has not yet been explained, and the request for resignations generally has not been explained. The Department of Justice is second only to the Department of Defense in importance to the United States. The Department of Justice has the responsibility for investigating terrorism, has the responsibility for investigating and prosecuting drug dealers in international cartels, the responsibility for investigating and prosecuting organized crime and violent crime. Yet it is pretty hard to make a more conclusive description than to say that the Department of Justice is dysfunctional, and the Attorney General insists on staying. I think, as to his own decision, it is a matter for him personally. I am not going to tell him what to do, nor am I going to make a recommendation to the President. Under separation of powers, it is the President's call. I don't want the President to tell me how to conduct my office in the Senate and I am not going to impede upon his executive authority, but I do believe that the inquiry which the Judiciary Committee is conducting might produce facts, if we get to the bottom of things, find out what they are, which would lead us to a new Attorney General, which I think is very much in the national interest. So I am hopeful we can yet avoid the confrontation. I think, candidly, there is a lot of posturing on both sides. I don't think it is realistic to seek a contempt citation brought against the President--that is newspaper talk--contempt citation brought against anybody in the executive branch, because there are arguments on both sides of this issue. I hope we can work it out so that we don't test the good faith of the executive branch in asserting privilege or the good faith of the legislative branch, the House of Representatives Judiciary Committee and the Senate Judiciary Committee, in seeking facts as part of our oversight responsibility. I hope we can work it out. I said a long while ago I would be prepared to accept the President's terms, with only one exception, and that was the importance of having a transcript as to what happens. The President made an offer on national television months ago saying he would allow White House personnel to come in and be informally questioned, but he did not want to have them under oath, and I would prefer to see them under oath. But I would give on that issue, because what they say is subject to a criminal prosecution with a 5-year penalty, the same as a perjury conviction for a false official statement under 18 U.S. Code 1001.

Mr. SPECTER. I yield.

Mr. SPECTER. I will be pleased to respond to that relevant inquiry. Senator Leahy and I have discussed this before. We have discussed just about everything, because we do things on a joint basis--about as pure as Ivory Snow, 99.4. We have some disagreements, but we try to work them out on a bipartisan basis because we think it is the right way to approach it. The Senator from Vermont has said he thinks we would be barred from a followup, and I don't know whether that is part of the offer which the President has made, but we can get it clarified further. I do not think we could make the commitment not to pursue a subpoena at a later time if we felt the informal interviews were insufficient. I don't think we can give up our authority in that process, and if we could, I wouldn't agree to that because I don't know what the informal interviews are going to produce and I would want to retain the right to exercise our right to subpoena. I would acknowledge at the same time that if we exercise our right to a subpoena that the President could exercise whatever rights he has on executive privilege. We would be back to square one, but at least we would have the advantage of the questioning. I know the questioning of Senator Leahy, a tough prosecutor from Burlington, VT. I have been there. And on an informal basis, Senator Leahy can extract quite a lot of information, and Chairman Conyers has the capacity to extract a lot of information. I might even have a relevant question or two to ask in the course of the proceedings. I think we can get a lot of information. I want to have that information. I want to find out as much as I could before I go to court on what is going to be a 2-year battle. It is going to outlast the President's term. It is going to outlast Attorney General Gonzales's tenure. I don't think the next President is going to reappoint Attorney General Gonzales. Let the record show there is a smile from staff in the back. It was intended to be not serious. Then the President doesn't want there to be these witnesses to go before both committees, and that is all right. I think Chairman Conyers and Chairman Leahy, in consultation with their ranking members, can work out a smaller group from the House and Senate, bipartisan, bicameral, sufficient to ask the questions. Then I would prefer that it be public. But as long as the transcript is published, I would give that up as well. I think it is so important that we get to the bottom of this important issue so we can have the Department of Justice function in the interest of the public that I am prepared to make those concessions, but I want a transcript. I would even be willing to give up the transcript if I am compelled to. I would take the interviews rather than have nothing. It would be at least something. But I would say to the President, the executive branch, that the transcript protects not only the questioners but the persons being questioned so there is no doubt as to what was said. I have been in closed-door meetings and had a number of participants walk out and, in perfectly good faith, have different versions as to what occurred. That happens when you are in a closed session. That happens when you are in a closed meeting, in perfectly good faith. That is why a transcript would protect Sara Taylor. It would protect Ms. Harriet Miers. It would protect the people who are being questioned. It is my hope we can yet work this out. Before taking the floor, I asked Senator Leahy if he would be willing to accept--he doesn't want to go as far as I do, and I can understand why he would insist on a transcript--I say I would like to have a transcript--but rather than have nothing, I would be willing to go into a closed session and have Senator Leahy question, Chairman Leahy question, Chairman Conyers question, and I question, some others question, to find out what we can. If at the end of that process we feel it is necessary to revert to subpoenas, we cannot, I think--but in any event should not--give up that power that resides with the legislative branch. I don't think we have the authority to give it up, but if we had the authority to give it up, I wouldn't want to give it up. But I want to pursue this matter and I want to get the information. When you talk about a criminal citation, a citation for criminal contempt, you are talking about a very serious matter. I have great empathy for the witnesses, Sara Taylor and Harriet Miers, who have been subjected to these subpoenas. If they assert executive privilege, and I agree that they are compelled to, I think once they are instructed by the President that the work they did for him is subject to his executive privilege, as he sees it, I think they have no choice. But when you bring a criminal contempt citation against Sara Taylor, people aren't going to understand she is an innocent pawn in the midst of this proceeding. If you bring a criminal contempt citation against anybody, there is an inference of some wrongdoing. You don't have a criminal charge customarily unless there is probable cause to believe a crime has been committed. That is when you have a warrant of arrest. That is when you have an indictment. Of course, a contempt citation is different, but if you call it a citation for criminal contempt, that has a tarring effect which is very serious and which is very profound. The U.S. attorney has to bring the charge, and the U.S. attorney has discretion. It is not an automatic matter that if the Congress refers the issue for a criminal contempt citation, it is mandated. U.S. attorneys have discretion as to what they do. They can bring it or not, depending upon their conclusions, upon their allocation of resources. And they can bring it on what they want to do. I could see how a U.S. attorney might not want to spend a whole lot of time on this matter. I can see how the taxpayers of the United States wouldn't like to spend a whole lot of time on this matter. But that is where we are heading if this posturing continues. Most importantly, we will not find out the underlying facts on the request for the resignations of these U.S. attorneys, and that is important to do so we can make a final evaluation by the Judiciary Committee as to what our conclusions are on this matter, and it would bear heavily on the continued service, the continued activity, by Attorney General Gonzales in holding that position. Madam President, I see the distinguished Senator from Kansas on the floor, and we have a short time left until the votes start at 5:30, but I yield to Senator Brownback.

Mr. SPECTER. Madam President, I think there is going to be real interest on the part of the body in moving to the second vote, but there are 10 minutes for the Senator from Kansas after the first vote?

Mr. SPECTER. Madam President, I would ask the Senator from Kansas if he would be willing to take 5 minutes and delay it to that extent.

Mr. SPECTER. Madam President, I suggest we proceed to regular order then.

Mr. SPECTER. How much time do I have remaining?

Mr. SPECTER. Ten minutes. I yield to the Senator from Kansas on the understanding that will be the time he would have had otherwise, and that we may proceed then to the sequence of votes.

Mr. SPECTER. Is the Senator from Kansas asking for 1 minute?