Arlen Specter

Mr. SPECTER

Mr. SPECTER. I ask unanimous consent for 30 seconds more.

Mr. SPECTER. Which promotes stem cell research without destroying the embryo. But the real core issue is the third vote on H.R. 810 which will allow Federal funding, which is now in the range, at NIH, of $30 billion a year, which can save so many lives. I thank the majority leader and thank the Chair and yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I will be glad to yield to the distinguished Senator from Missouri if I may ask one question that was raised by what the Senator from Oklahoma has just said. He has made the assertion that it would cost $20 million to bring the McFarland up to shape. I ask him, what is the source for that and how does that square with the fact that on March 23 of this year, just a few months ago, the McFarland was fully certified by the Coast Guard and the American Bureau of Shipping, so that it is in good shape and would require no funding to keep it in operation?

Mr. SPECTER. Mr. President, if I may make one statement before yielding to the Senator from Missouri, that is in direct variance with a report of the Corps of Engineers on June 3 that did not sufficiently justify its recommendation to retire the McFarland. And they found further that there are no assurances that private industry will be able to fill the void created by the decommissioning of McFarland. I yield now to the Senator from Missouri.

Mr. SPECTER. Mr. President, by way of brief reply to the comments of the Senator from Missouri, the Corps of Engineers has put a $20 million figure for putting the McFarland into Ready Reserve. But that doesn't deal with having the McFarland operational. That estimate was disputed by the Maritime Exchange for the Delaware River and others presenting factual information. I have just checked to find out if there was any hearing held on this matter. But I am advised that there was not. The rest of the Corps of Engineers report did not provide assurances that private industry would be able to fill the void created by decommissioning the McFarland. When you come to the issue as to whether it is capable of proceeding operationally, no one has disputed the facts that the McFarland is capable of functioning for 10 to 12 years without undergoing any major rehabilitation work being fully certified by the Coast Guard and the American Bureau of Shipping as of March 23 of this year, an undisputed fact. How much time remains on my side, Mr. President?

Mr. SPECTER. I thank the Chair. I yield the floor.

Mr. SPECTER. Mr. President, I ask if Senator Carper would await the arguments of the chairman.

Mr. SPECTER. Mr. President, the argument that the Senator from Oklahoma makes about a 2005 report by the Corps of Engineers is flatly contradicted by the certification by the Coast Guard and the American Bureau of Shipping as of March 23, 2006, after the 2005 report referred to by the Senator from Oklahoma, that the McFarland requires no rehabilitation and remains operational and available to perform dredge work. I yield 10 minutes to the Senator from Delaware.

Mr. SPECTER. Mr. President, I yield to the distinguished Democrat manager of the bill, Senator Jeffords.

Mr. SPECTER. Mr. President, I thank the Senator from Vermont, the ranking member of the committee, for those comments. I think he puts his finger on the critical spot. That is, if the McFarland is decommissioned, we may well have a need which will not be fulfilled. That was a big hole in the report of the Corps of Engineers that there were no assurances that the private sector would be able to handle the workload. The fact is, as outlined in the report by the Corps of Engineers, the Corps' hopper dredges serve to ensure that costs will be reasonable, but with a limited number of vessels in the fleet and during peak workload periods when only one bidder may be available, there is a tendency to exercise the principles of supply and demand and costs will rise. The Corps' presence will serve as a deterrent for potential cost increases. That means we need to keep the McFarland in operation. The report goes on to say that a current example is the Wheeler being called out in February to perform work in the Mississippi River when a single industry bid exceeded the award amount. The Corps report further points out during the peak workload scenario, the largest industry hopper dredge, the Stuyvesant, experienced engine trouble and had to stop work, creating a capability shortfall. Subsequent to this event, increased shoaling in the Mobile Harbor created the need for an additional hopper dredge resulting in calling out the Wheeler, as the McFarland was also fully engaged. When there has been talk about the daily rate of the McFarland, it is unsupported by the fine print. The McFarland's estimated daily rate includes a payment the Corps has to make into a ``dredge replacement fund'' even though the Corps has no intention of replacing the McFarland with another federal dredge. Therefore, the daily rate which has been cited is inflated, unrealistic, and does not support decommissioning the McFarland. How much time remains?

Mr. SPECTER. I reserve the remainder of my time.

Mr. SPECTER. Mr. President, this effort to retain the McFarland is not being undertaken for historical reasons. To talk about placing the McFarland in a museum is making light of an issue which is very, very serious for my State. It is potentially serious for about two-thirds of the other States in the United States which are affected by hurricanes and which have very important national security areas. This amendment is being pursued at the request of the Governor of Pennsylvania and the Maritime Exchange. They are deadly serious about the adverse impact of retiring the McFarland. On the Delaware River alone the McFarland helps maintain a shipping channel that supports 38 million metric tons of cargo per year, a total value of $14 million. That ranks second and eighth in the Nation. We are not talking about a museum piece. We are talking about a dredge which is vital for jobs and the economy of the region. We are talking about the McFarland's availability to respond to emergency blockades at the Department of Defense designated strategic military seaports. You are not talking about an antique. You are talking about an era where terrorism is an ongoing threat; where, within the past 2 weeks, we had a threat by terrorists to blow up the Holland Tunnel; where the President has a terrorist surveillance program which has superseded the Foreign Intelligence Surveillance Act and is viewed under the President's article II powers as a wartime precedent because of the threat of terrorism. We are talking about Department of Defense interests in New Jersey, Virginia, North Carolina, South Carolina, Georgia, Florida, Mississippi, and Texas. We are talking about a dredge which played a key role in responding to severe weather events and natural disasters and was dispatched to the gulf coast to assist in Hurricane Katrina. We have a report by the Corps of Engineers which relies upon industry data. The Corps report concedes that ``to verify the industry data would require extensive auditing and is beyond the scope or need of this report.'' Beyond the scope of the report; we ought to rely on a Corps of Engineers report that relies upon industry data where the industry has a vested interest in having the McFarland retired so they can make more money, and you have a national defense interest? There has been no case made by the committee to replace the McFarland. How much time remains on my side?

Mr. SPECTER. I reserve the remainder of my time.

Mr. SPECTER. Mr. President, I did not refer to San Francisco and I did not refer to San Diego. The long list of States affected were on the east coast and on the gulf. There are two other Federal dredgers on the west coast. I have great respect for the distinguished Senator from Oklahoma and his 20 years of service on the Armed Services Committee. But I have been, for 26 years, on the Defense Appropriations Subcommittee and have some familiarity with these issues. I was on the Intelligence Committee for 8 years and chaired it in the 104th Congress and have some appreciation of the problems of terrorism. And I have served on the Judiciary Committee for 26 years, now chair it, and have been very deeply involved in the President's electronics surveillance program which has superseded the Foreign Intelligence Surveillance Act because of the threat of terrorism. We are talking here about having the McFarland available in many, many ports and in many, many States--not the State of California and San Francisco or San Diego, but in Pennsylvania, New Jersey, New York, Virginia, North Carolina, South Carolina, Georgia, Florida, Texas, and others; and the gulf coast States affected by the hurricane, again, Texas and Louisiana and Mississippi and Alabama and Florida. We are dealing here with a very flimsy Corps of Engineers report which is based on industry data which is not verified--a concession they make in this report. And it is provided by industry sources which have a vested interest and a bias in eliminating the McFarland as a competitor. Mr. President, I think it is fair to say that if the committee's point on decommissioning the McFarland is to stand, they have a burden of proof. And they have not established it. There has not been a hearing on this subject. There has not been reliable evidence. And I would say that in the face of the threat of terrorism, and the work that the McFarland does in that area, and the work that the McFarland did in Hurricane Katrina, that their burden of proof is more than a preponderance of the evidence; it ought to be clear and convincing. And it has not been either clear or convincing.

Mr. SPECTER. Mr. President, I ask for the yeas and nays.

Mr. SPECTER. I move to reconsider the vote.

Mr. SPECTER

Mr. SPECTER. Mr. President, on behalf of the leader, I ask unanimous consent that there now be a period for the transaction of morning business, with Senators permitted to speak for up to 10 minutes each.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that I may use this hourglass during the course of the debate.

Mr. SPECTER. Mr. President, it is difficult to characterize the importance of the debate which the Senate is now beginning because the most fundamental aspect of human life is our health. Without our health, there is nothing we can do. Medical research has performed wonders, and stem cells, which came upon the scene in November of 1998, have the most remarkable potential of any scientific discovery ever made with respect to human health. These stem cells have the capacity to regenerate disease cells in the human body and have the capacity to cure maladies of all sorts, including cancer, heart disease, Parkinson's, Alzheimer's, spinal cord--the long litany of maladies which confront mankind. The stem cell debate began with the hearings conducted by the Appropriations Subcommittee on Labor, Health and Human Services, which I chair and on which Senator Tom Harkin is ranking member. We began those hearings within days of the November 1998 announcement and have had some 18 hearings on stem cells to explore all ramifications of the potential of stem cells. There is now an avalanche of evidence that the use of stem cells in scientific research has boundless potential. The state of the law is that federal funding may only be used for a limited number of obsolete stem cell lines. The bill which is the fundamental issue before the Senate today is H.R. 810, which Senator Harkin and I introduced as a Senate bill with some 42 cosponsors, which would allow research on embryonic stem cells. There are two other bills at issue. One is S. 2754 which Senator Santorum and I have introduced which relates to long-range research not involving the embryos, but it is totally separate and distinct from H.R. 810 in that it does not have the potential that the embryonic stem cells have and it is long range. The third bill is S. 3504 which relates to fetus farming prohibition, and I believe there will be little controversy about this bill. The bill would deal with two unethical activities--the solicitation or acceptance of human fetal tissue knowing that a pregnancy was deliberately initiated to provide such tissue and the solicitation or acceptance of tissues or cells from a human embryo or fetus that was gestated in the uterus of a nonhuman animal. I believe there will be no contest about that. I expect relatively little contest about S. 2754, which does not in any way relate to the importance of research on embryonic stem cells. The embryonic stem cells are used from many embryos which have been created for in vitro fertilization. Customarily, a dozen or so are created, maybe three or four are used, and the others are then frozen and ultimately will be discarded. There are some 400,000 of those embryos which are frozen today, and the likelihood of their being used is nil. Senator Harkin and I introduced legislation to provide for Federal funding to encourage adoption of these embryos. If they could be used to create human life, I would not in the remotest way contend that they ought to be used for scientific research. But the fact is that they will either be used for scientific research or thrown away. When the issue of adoption was raised, as I say, we took the lead in the Labor, Health and Human Services, and Education Subcommittee in the year 2002 and appropriated $1 million and since then have appropriated more in succeeding years. As of May 31, 2006, the Snow Flake Organization, one of the Department of Health and Human Services' embryonic adoption grantees, had a news conference announcing that there had been 100 births since 1997. As of May 31, 2006, the National Embryo Donation Center had a total of 28 deliveries or ongoing pregnancies. Out of the 400,000, even with Federal funding available to encourage adoption, the number is 128, which makes it conclusive that these 400,000 embryos will either be used for scientific research or thrown away. The bill which Senator Harkin and I have introduced is very carefully structured to be sure that it satisfies the strictest ethical scrutiny. This is the essence of the bill: first, that the stem cells were originally created for fertility treatment purposes; second, are in excess of the clinical need; third, the individual seeking fertility treatments for whom the embryos were created has determined that the embryos will not be implanted in a woman; fourth, they will be otherwise discarded; and fifth, the individual for whom embryos were created has provided written consent for embryo adoption. This bill does not allow Federal funds to be used for the derogation of stem cell lines, a step in the process where the embryo is destroyed--the lines are created and the embryos are destroyed before they are subjected to research which is funded by the Federal Government under the bill which Senator Harkin and I are promoting. The evidence of the utility of these embryonic stem cells is unquestioned, and the need for more stem cell lines similarly is unquestioned. On August 9, 2001, President Bush made an Executive determination to allow Federal research on some 60 existing stem cell lines. It was later determined that there might be as many as 70 lines. It has since been determined that there are no more than 20 lines, and perhaps even fewer. These existing lines are tainted with mouse feeder cells, which is a technical consideration that they can't be used. The experts in the field: Dr. Nabel, Director of the National Institutes of Health (NIH) Heart, Lung, and Blood Institute, focused on the unavailability of stem cells for research, noting that only four stem cell lines are currently in common use. The enormous advantages of stem cells were outlined in some detail by the various Directors of the NIH. Dr. Zerhouni, Director, NIH, said: Embryonic stem cell research holds great promise for treating, curing, and improving our understanding of disease, as well as revealing important basic mechanisms involved in cell differentiation and development. Dr. Fauci, Director of the National Institute of Allergy and Infectious Diseases, said: NIAID believes that embryonic stem cell research could be advanced by the availability of additional cell lines. Individual stem cell lines have unique properties. Thus, we may be limiting our ability to achieve the full range of potential therapeutic applications of embryonic stem cells by restricting research to the relatively small number of lines currently available. Dr. Battey, Director of the Deafness Institute, said: The more stem cell lines available for study the more likely a cell line will be maximally useful for a given research, and potentially clinical, application . . . the scientific community would be best served by having a greater number of human embryonic stem cell lines available for study. Dr. Nabel, the director of the Heart, Lung, and Blood Institute, said: . . . we recognize that the limitations of existing cell lines are hindering scientific progress among a community that is very eager to move forward in this promising area. We support the creation of dissemination of newer stem cell lines in the expectation that it will advance this field and hasten progress in basic and clinical research. Similar opinions were articulated by Dr. Tabak, director of the Dental Institute; by Dr. Volkow, director of the National Institute of Drug Abuse; by Dr. Collins of the Human Genome Institute; by Dr. Neiderhuber, director of the Cancer Institute; by Dr. Rodgers, acting director of the Diabetes and Digestive Disease Institute; by Dr. Landis, director of the Neurology Institute; by Dr. Berg, director of the General Medical Sciences Institute; by Dr. Alexander, director of the Child Health Institute; by Dr. Sieving, director of the Eye Institute; by Dr. Schwartz, director of the Environmental Health Institute; by Dr. Hodes, director of the Aging Institute; by Dr. Li, director of the Alcohol Abuse Institute; by Dr. Alving, acting director of the Center for Research Resources. All concur with the need for additional stem cell lines for research in dealing with the maladies in their own particular area. By way of a strictly personal note, I had a little root canal work done this morning. The dentist asked me what was going on in the Senate today. I told him about stem cell research. He said: I hope you win your case because it will help us on root canal work. The embryonic stem cells can be injected into the canal with the diseased tissue, and you can have a third set of teeth. Wherever I turn, people in the medical research field--and I regret I have had a lot contacts--extol the enormous virtues of stem cells--that they have the capacity to replace diseased cells. If you deal with a heart problem and you have a diseased area, the stem cells can be injected. These embryonic stem cells have remarkable flexibility and capacity to provide a healthy cell to replace the diseased cell. We have had remarkable articulation of support from Members of the Senate, as well as Members of the U.S. House of Representatives. The House bill was passed with a comfortable margin, with some 50 Republicans crossing party lines. In the Senate, we have many Senators who are most actively known in the pro-life community, and while they would not make a woman's right to choose available, they do actively support stem cell research. It is important to focus on the difference that being against a woman's right to choose has nothing to do with the issue of stem cell research. They are entirely separate. Authors of the June 4, 2004, letter to the President on stem cell research include some of the strongest pro-life Senators in our body, including Senator Orrin Hatch, Senator Gordon Smith, Senator Lamar Alexander, Senator Thad Cochran, Senator Kay Bailey Hutchison, Senator Trent Lott, Senator John McCain, and Senator John Warner. There is every expectation there will be more Senators from the strong pro-life community who will be supporting embryonic stem cell research. We have support from two of our colleagues who were very active on the pro-life side, former Senator John Danforth and former Senator Ben Nighthorse Campbell. On the strictly personal level, I have noted the declaration by President Nixon in 1970 when he declared war on cancer. Had that war been pursued with the same diligence we pursue other wars, I believe cancer would long ago have been cured. Without unduly dwelling on my own situation with Hodgkin's, a year of chemotherapy, I think had the research been fulfilled, I would have been spared that malady. The maladies such as heart disease, cancer, Parkinson's, and Alzheimer's disease strike approximately 110 million Americans a year. We all know people close to us who have been stricken with cancer or heart failure. My own chief of staff, Carey Lackman, a beautiful young woman of 48, was stricken with breast cancer and died 2 years ago. My son's law partner, Paula Klein, a beautiful woman with two young children, age 55, died of breast cancer. A Federal judge, Edward R. Becker, well known to the Senate for his active work for more than 2 years on asbestos legislation, died in May 2006 from prostate cancer which had metastasized. Those are anecdotal, typical of tens of thousands, hundreds of thousands of people who have died or are incapacitated from diseases which could be cured with stem cell research. It is not only the individuals who contract the maladies, it is their families. It is their loved ones. President Reagan's wife, Mrs. Nancy Reagan, who is a very nonpublic retiring person, has taken a public stand in support of embryonic stem cell research because of the understanding and impact on her life when President Reagan had Alzheimer's and she had to care for and watch her husband suffer from that malady. We have had very extensive indicators, evidence, that stem cell research could delay the onset of Alzheimer's and, perhaps, cure it entirely. The conflict which we have on this issue between ideology and science is one which mankind has faced repeatedly in the course of our historical experience. A century from now, people will look back at this debate on stem cell research and wonder how we cannot possibly utilize all of the benefits of science to stop people from dying, to stop people from suffering, when we have these embryos which are either going to be thrown away or used. They are not going to create living people. If they were, no one would be suggesting they be used for scientific research. There are a number of striking examples of rejection of scientific knowledge at various stages in our human history which, in retrospect, are absurd. For example, in 1486, a committee of the Spanish Government concluded that the voyage proposed by Christopher Columbus should not be funded because ``the Western Ocean is infinite and perhaps unnavigable . . . [and] . . . so many centuries after the Creation, it was unlikely anyone could find hitherto unknown lands of any value.'' Fortunately, Queen Isabella, disagreed. Galileo was imprisoned for his support of Copernicus' theory that the planets revolved around the Sun. This allowed the acceptance of a theory upon which all of modern astronomy and space travel are based and what we know from our own experience in the solar system. Michael Servetus has research on human anatomy. Pope Boniface VII banned the practice of cadaver dissection in the 1200s. This stopped the practice for over 300 years and greatly slowed the accumulation of education regarding human anatomy. Finally, in the 1500s, Michael Servetus used cadaver dissection to study blood circulation. He was tried and imprisoned by the Catholic Church. Anesthesia for women in labor was founded by James Simpson in 1848. Reporting his discovery that anesthesia could be used to lessen pain during child birth, the Scottish Calvinist Church objected to the use of anesthesia during labor because ``pain of child birth was God's will.'' The Scottish Calvinist Church stifled anesthesia use by refusing to baptize any children who were born while a person was anesthetized. Thomas Edison, who brought electricity to us, had a similar experience. The Committee on Lighting by Electricity in the British House of Commons did not believe that electricity was practical, saying: There is not the slightest chance of [electricity] competing, in any general way, with gas. There are defects about the electric light which, unless essential changes take place, must entirely prevent its application to ordinary lighting purposes. Fortunately, that view did not prevail. Fortunately, since it is 102 degrees today and we have an air-conditioned Senate Chamber. Vaccines, in 1772, in response to the new science of vaccination, Rev. Edward Massey declared: Diseases are sent by Providence for the punishment of sin, and the proposed attempt to prevent them is a diabolical operation. Had vaccines been outlawed, millions of lives would have been lost. In the 1820s, Dr. Dionysus Lardner, Professor of Natural Philosophy and Astronomy at University College, London, stated, referring to rail travel: Rail travel at high speed is not possible because passengers, unable to breathe, would die of asphyxia. If it were true, I would not be here today. I would have had to find another way than rail travel to come from Philadelphia to arrive in time for this debate. I go through this list, and it is only an abbreviation of a much longer list to show how attitudes at different times in retrospect look foolish, look absolutely ridiculous. When we see in our everyday existence the enormous suffering from so many maladies, there is just no sensible, logical reason why we should not make use of stem cell research. When I joined the Subcommittee on Health and Human Services in 1981, the budget for the National Institutes of Health (NIH) was a little over $3 billion. With the leadership of that subcommittee, those funds have now been increased to almost $29 billion annually. We are being outstripped by other countries which are undertaking embryonic stem cell research. They are taking our scientists. We have the capacity with the NIH and the Federal funding to make enormous additional progress on medical research to save lives, to save pain and suffering. We ought to do so. We ought to pass the Specter-Harkin bill--the Senate's version of the House-passed bill--and seek to persuade the President of the United States that this is a bill which ought to be signed into law. I know my 30 minutes is up, so I yield to my distinguished colleague from Iowa, Senator Tom Harkin.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the order for the quorum call be dispensed with.

Mr. SPECTER

Mr. SPECTER. Mr. President, on behalf of the leader, I ask unanimous consent that floor privileges be granted for the duration of the stem cell debate to the following: Dr. Roger Johns of Senator Hatch's office; Laura Holland, Jeff McCaffrey, Jon Koegler, Martina Bebin, and Dave Schmickel of Senator Enzi's office; and Nicole Weitz of Senator Frist's office.

Mr. SPECTER

Mr. SPECTER. I thank the Chair. (The remarks of Mr. Specter pertaining to the introduction of S. 3614 are printed in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. SPECTER. I thank the Chair. I thank my distinguished colleague from West Virginia for waiting. I know he has an important speech to give. I just conferred with the Senator from West Virginia, and it is his Fourth of July speech. It is a little early for the 4th, but there may not be too many people in the Chamber on the 4th or the 3rd or the 2nd or the 1st or even tomorrow, the 30th of June. I compliment Senator Byrd in advance. I yield the floor.

Mr. SPECTER. I thank my colleague

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to discuss the case of Hamdan v. Rumsfeld which was decided by the Supreme Court of the United States today and to address the question as to where we go from here. There have already been many inquiries as to what is the import of this Supreme Court decision and what are the next steps in order to establish a framework to deal with the people who are detained at Guantanamo Bay. Since the opinions were released this morning, my staff and I have been reviewing them: 177 pages, 6 opinions. The essence of the decision of the Supreme Court of the United States on a 5-to-3 vote is that the President did not have the authority to establish the military commissions and that the authority rests with the Congress under the Constitution. The Court dealt with the issue of the resolution that authorizes the use of military force, a resolution which the administration has sought as authority for amending the Foreign Intelligence Surveillance Act, and when the Court dealt with the resolution authorizing the use of military force, the Court said that it did not give the President the authority to establish the military commissions. The Court did not deal with any issue of inherent authority. But the decision that the President lacked the authority to establish the military commissions makes it obvious that the conclusion of the Supreme Court is that there is no inherent authority, an inference and a proposition which may have some weight as we consider collateral matters, for example, on the electronic surveillance under NSA. The Constitution of the United States is explicit in article I, section 8, which states, and I am leaving out some of the irrelevant language: Congress has the authority ``to make rules concerning captures on land and water.'' So it is a congressional matter. In reaching its conclusion, the Supreme Court of the United States found that the military commissions violated the Code of Military Justice and also violated the terms of the Geneva Convention. The Court found that the military commissions violated the Code of Military Justice because they did not provide for very basic due process considerations. The Court said that the military commissions violated the Geneva Convention, which the Court found applicable, reversing the Court of Appeals for the District of Columbia where the Supreme Court said: The Geneva Convention, common article 3, plainly affords some minimal protection to individuals, associated with a signatory or even a nonsignatory, who are involved in a conflict. The Court dealt with the issue of jurisdiction by saying the Government contention that the Supreme Court had no jurisdiction was wrong. The Supreme Court referred to a provision of the Detainee Treatment Act of 2005, which provides: No court shall have jurisdiction to hear or consider an application for habeas corpus filed by an alien detained at Guantanamo Bay. . . . There was a reference to the statutory provision which gave exclusive jurisdiction, according to the statute, to the District of Columbia court. The statute provided specifically: . . . the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal which determines that an alien is properly detained as an enemy combatant. I argued as forcefully as I could when that amendment was considered, that it was really atrocious--without any hearings, without any extended floor debate, and I had 2 minutes to speak under the rules governing the amendment--that we would be taking away jurisdiction of the Federal courts except for the District of Columbia. On its face, that language would say that the Supreme Court of the United States had no jurisdiction. The Supreme Court made short shrift of that point, saying that it did have jurisdiction. When you deal with a constitutional issue, it is hard for this lawyer to understand how you can take away jurisdiction from the Supreme Court of the United States. How can you do that, when we know since Marbury v. Madison in 1803 that the Supreme Court of the United States is final arbiter of the Constitution? But this language, this clumsy language sought to vest exclusive jurisdiction in the Court of Appeals for the District of Columbia. The Supreme Court made short shrift of that. On a personal note, and relevant to this consideration as well, in Justice Scalia's dissent he cites my floor argument in a footnote saying, at page 12 of his opinion: An earlier part of the amendment provides that no court, justice or judge shall have jurisdiction to consider the application for writ of habeas corpus. . . .Under the language of exclusive jurisdiction in the D.C. Circuit, the U.S. Supreme Court would not have jurisdiction to hear the Hamdan case. . . . Id., at [Senate Congressional Record] S12796 (statement of Sen[ator] Specter). Interesting that Justice Scalia, who doesn't believe in congressional intent or congressional deliberation, would make that citation. But when I made the point that the statute, on its face, took away jurisdiction from the Supreme Court of the United States, I made it plain that I did not think it had any validity. A statute can not do that. What the statute was trying to do, in part, was to look to a favorable court. The DC Circuit was a favorable court--they engaged in a little court shopping--and there was an effort to take away the jurisdiction of the district court from habeas corpus proceedings. Under the logic of Hamdan, where you have a statutory provision that the DC Circuit has sole jurisdiction and the Supreme Court interprets that as not taking away jurisdiction of the Supreme Court, inferentially the same conclusion would follow for the district court. It doesn't say the district court does not have jurisdiction, just like it does not say the Supreme Court does not have jurisdiction. It just says exclusive jurisdiction is in the DC circuit. It is a little hard to see how that would work out if you filed a petition for a writ of habeas corpus in the DC Circuit. That would be anomalous. Those petitions are filed in the district court. In any case, the Supreme Court claimed jurisdiction over the case and found that the procedures which the administration has prescribed do not comport with law. The Judiciary Committee held a hearing on Guantanamo and made a field trip there. A number of us, including myself, went to take a look at Guantanamo, to see it firsthand and to question people there. I had gone there with the expectation of having a field hearing there. I wanted to hear from the officials at Guantanamo. When I got to Guantanamo, after the flight in, I was told there would be no field hearing--which was a disappointment, and really contrary to what I had understood the arrangement to be. But we held a hearing and devoted a considerable amount of work to the issue. Knowing, or thinking that, the administration's military commissions would be struck down because they did so little and had no real relationship to due process, we prepared legislation. I had it put in final form last week when we considered the Department of Defense authorization bill, and one Senator did talk about legislation. I considered offering it at that time but decided that it was not a good time to do so. But we have it ready to go, ready for introduction. Senator Durbin and I introduced a bill to handle the Guantanamo detainees on February 13, 2002. The issue was not picked up again until the Judiciary Committee held hearings last June, and this bill, which I am introducing today, I believe, will satisfy the requirements of the Supreme Court of the United States. This bill provides for two divisions. One is for the people who are charged with specific offenses. We retain the description of a military commission. We provide that there would be three officers on the commission, one president--a presiding judge from the Judge Advocate General's Office. Also an attorney will be provided for the accused, there will be competent evidence, there will be cross-examination and a unanimous verdict. In the event of the use of classified information, we prescribe that the provisions of the Confidential Information Protection Act would govern, which is a statute which has been used in our courts for many years, which authorizes the presiding judge to sift through the information and make available to the defense whatever is appropriate and not classified. And if it is classified, then to make it available at the discretion of the judge to the attorney. The attorney for the accused would be cleared through regular channels to deal with classified information so that we would be protecting the classified information by having it viewed only by someone authorized to take a look at it, so that the defense lawyer would be able to use it in the defense of his client. That is not a perfect situation, but that is the way we have dealt with confidential information under the so-called Confidential Information Protection Act. In our legislation, we also deal with the enemy combatants. These are the individuals who have been detained at Guantanamo under an arrangement where there is no limit as to the length of their detention. That has caused considerable angst, considerable objection. But it is a very difficult matter. When we are in a war, fighting terrorists--and we should never lose our focus that we are in that war and that there are continuing dangers and we have to protect Americans--until somebody has a better idea, they are going to be detained. Some have been released and some of those released have been found on the battlefields killing Americans, so the detention of enemy combatants is an ongoing issue. Our legislation provides that there would be a classification tribunal so that there would be a review of their status, to make a determination on a periodic basis that they continue to be a threat to the United States, either on the continent or because they will go back and fight a war. We provide for an attorney, again, an attorney who would be cleared to view classified information. The issue of evidence is much more difficult because these enemy combatants are frequently taken into custody in a battlefield situation where competent evidence is not present, so we allow for hearsay. In the Supreme Court opinion, if there is a showing of necessity, there is leeway granted in terms of defining sufficient due process. The Supreme Court found, for example, that the President had demonstrated sufficiently that there could not be trials in the U.S. Federal district courts, so ruling that out was fine. It was acceptable. And leeway, too, for some deviation from all of the generalized rules might be acceptable. The Supreme Court really didn't reach the issue of granting leeway because they didn't have a specific situation, but there would have to be a showing of necessity, a showing that no other system would work. So in dealing with the enemy combatants, we are still struggling with how to handle the issue of indefinite detention, recognizing that they continue to be a threat. The legislation which I am introducing today has received considerable thought and considerable analysis. As I say, it picks up on legislation which Senator Durbin and I introduced on February 13, 2002. But it still requires a great deal more analysis and a great deal more thought, which we will give it in due course on the legislative process. We have altered our schedule in the Judiciary Committee to reserve July 11 for a hearing, the second day we are back--on that Tuesday we really swing into action--we will take up an analysis of Hamdan v. Rumsfeld in greater detail than we could do this afternoon in a short floor statement and with only a few hours to digest the 6 opinions and 177 pages. We will consider this legislation at that time. I ask unanimous consent that the full text of the bill be printed in the Congressional Record at the conclusion of my comments, and a short summary of the bill, which will enable the reader to follow without going through the extended text.