Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. I thank the Chair and yield the floor. I would like to note my appreciation for Senator Hatch and his leadership on this issue.

Mr. SESSIONS. Mr. President, I thank the Senator. Chairman Enzi has done a fine job, and he is known for his fairness and his hard work. Under his leadership, State after State has agreed to this new and fairer formula. Unfortunately, we have a few privileged States who want to maintain an extraordinary funding stream and are denying funding to the other States that are in crisis today. I have spoken with Kathie Hiers, the director of AIDS Alabama, who is very articulate on these issues, Mary Elizabeth Marr, who runs the AIDS center in Huntsville, and Jane Cheeks, the State AIDS director, and they have explained to me how unfair the current system is. Mr. President, I could not be prouder to serve on the committee with Senator Enzi, and I greatly appreciate his leadership to help those of us whose States are facing a national crisis. I would like to briefly show this chart and make a few points. Senator Hatch, who wrote the Ryan White Act, is here. Ryan White was from Indiana. He was not from a large city. But Senator Hatch considered the AIDS challenges facing America, and at the time, this disease appeared to be a greater problem in bigger cities. The whole Nation contributed money to fight this epidemic in the crisis area cities. The money that was spent fighting AIDS in these cities had a tremendous impact. However, the geography of the disease has changed. Where is the growth of AIDS today? Where are the surging numbers? HIV and AIDS are increasing at a greater rate in the South. Seventy percent of the new HIV cases in my State are African Americans, and the greatest growth rate by far is among African American women. My State is not receiving adequate funding to treat the greater numbers of people in our State that are living with HIV/AIDS. I would like to again point out that the formula used to determine funding has a number of serious flaws. One of these flaws is that we count AIDS cases for funding, but we do not count HIV positive cases, despite the fact that HIV is the precursor to fully-developed AIDS. In contrast to the early years of this disease, we have medicines that can be given to people who have HIV before it has developed into AIDS. These drugs have been proven to delay the onset of AIDS so that the people that have access to them can live a more healthy life. How is it possible that we are not including the people who have HIV in the funding formula? These are the people that need to be put on medicines at once. We now know that a pregnant women who has HIV will give birth to a child without AIDS if she is given the right medicines. However, if she is not given these drugs, she faces a greater probability that her child could be born with AIDS. This clearly is a very serious, life-and-death issue, and one that we must confront. We have continued to be generous with AIDS funding, but that generosity certainly would require that we shift the money to follow the disease. The money should not follow bureaucracies and established systems where it cannot be spent. For example, New York was not able to spend $29 million last year, yet under the same formula, Alabama receives only $11 million for the whole State for the entire year. The money that they had and were unable to spend is nearly 3 times more than our complete funding, yet Alabama has waiting lists for people who are in desperate need of these drugs. The people on our waiting lists must wait before they can become eligible for these drugs because we don't have enough money to pay for them. We cannot afford to pay for more than 40 drugs in Alabama, but New York is able to provide nearly 500 drugs to their AIDS patients. This is just not right. To conclude, I find it unfortunate that we have seen such partisan, parochial interest in protecting those who receive excessive federal benefits when these benefits are no longer justified. The U.S. Government and the American people were generous to New York, San Francisco, and other big cities. We saw that these cities were in a crisis with this disease, and so we gave them a disproportionate amount. These cities are not entitled to keep forever the benefits we have been giving, and now we are experiencing crises in other States. I think it is a sad day indeed that there are Senators blocking this reform and blocking the re-authorization of the act.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I want to make a few comments on the vote we had earlier tonight, 80 to 19, on a bill on border fencing along our southern border, where 1.1 million people were apprehended last year crossing that border. We have had a few comments, pro and con today, but there hasn't been a lot of debate. It represents the fourth time we voted on this issue. So we know pretty much what the debate is. I saw no reason to delay our departure tonight. Other matters are being settled as I speak now. I think it is appropriate to take a few moments to comment on it. No. 1, of course, the fence is not the answer. There is no one answer to reestablishing a legal system of immigration in America, but that must be our goal. If we aspire to be a great nation, a lawful nation, it is absolutely critical that we have a legal system of immigration. We should not reward those who come illegally, but we should be generous to those who choose to come legally and comply with our rules. We are a Nation of immigrants. We will remain a Nation of immigrants. We will continue to allow people to come to our country. I want to say that no one thinks that building barriers at the border is going to solve, by itself, our immigration problem. But it is an important step. If we have to take 10 steps to cross the goal line, this is probably two of the steps necessary to get there. There is no need to delay. We need to get started. It takes some time to accomplish it. Fences multiply the ability of our Border Patrol agents to be successful. We have seen that on the San Diego border. We have seen just how well it has helped bring down crime, how well the property values have surged on both sides of the border--an area that was lawless, crime ridden, and drug infested is moving forward with commercial development in a healthy way. That is just the way it is. There is not anything wrong, hateful, or mean-spirited to say that we integrated a lawful border system in America. The American people understand that. Indeed, I say to my colleagues that the American people have understood fundamentally and correctly the immigration question for 40 years. They have asked Congress and they have repeatedly asked Presidents to make sure we have a legal system of immigration. But that has not been accomplished. We have not responded to those requests. Now we have reached an extraordinary point in our history where we have over a million people apprehended annually coming in illegally, and probably, according to many experts, just as many getting by who are not apprehended. So it is time for us to confront and fix this problem. Another critical step in enforcement--absolutely critical--and it is one that we can accomplish with far more ease than a lot of people think, is to create a lawful system at the workplace. It is not difficult, once we set up the effective rules, to send a message to all American businesses that they need a certain kind of identification to hire someone who has come into our country. If they don't have this legal document, they are not entitled to be hired. This will work. Most businesses will comply immediately when they are told precisely what is expected of them. But that has not been the case. They have not been told what is expected of them. They, in fact, have been told if they ask too many questions of job applicants, they can be in violation of the applicant's civil rights. So lawyers tell them don't ask too many questions. Then you complain that they have hired illegals, and they say: They gave me this document, and I didn't feel like I could inquire behind it. So it can work. If we tell our business community what is reasonably expected of them, they will comply with it. That will represent a major leap forward in enforcement. Then we have to ask ourselves what do we do about people who only want to come here to work, and we need their labor? I believe we can do as Canada and many other developed nations have done--create a genuine temporary worker program, a genuine program. The Senate bill passed in this body that had a section called temporary guestworker. But there was nothing temporary about them. They could come for 3 years and bring their families and their minor children, bring their wives, stay for 3 years, and then extend for 3 years, and then do it again. After 6 years or 7 years, I believe, they could apply for permanent resident status, apply for a green card. Then a few years after that, they become a citizen. How temporary is that? What Canada says is you can come and work for 8 months. A television show interviewed some people in Canada, and they said: I may stay 4 months or 6 months. They may come and go in the interim many times because they have an identifying card that allows them to come and go for a specified period of time. That could allow us to have the surge in seasonal labor that we need in agriculture and in some other areas. But the agricultural community and other areas that say they need temporary labor have to understand that they do not get to unilaterally set the Nation's immigration policy just so they can have the immigration level, the work level, they need. They don't have that right. They are not speaking for the national interest. This Senate speaks for the national interest. We must set the policy. Yes, we have a large number of people who are here illegally. How many of those would want to stay permanently? I don't know. I know a number of them would. So I think we will reach the point--hopefully, we can do this next year--where we confront as a Congress that dilemma. I say to my colleagues as a person who was a Federal prosecutor for many years, do not ever think that you can just grant amnesty to someone who violated the law and that will not have a corrosive effect on respect for law in our country. Granting an amnesty is a very serious thing. It is not something you can just do because you just feel like it, or you feel that is the right thing to do. We must think that through. My personal view is that for people who have been here a long time and had a good record and have done well but came illegally, we ought to be able to figure out a way that they can stay here and live here. They should not be given every single benefit that we give American citizens, or people who come here legally; otherwise, what is the difference whether you came legally or illegally? Do you see the moral point here. You simply cannot do that and think it has no consequences on the rule of law. So we can reach an agreement on that. It is within our grasp, I suggest, to deal with that most difficult problem of how to deal with people who come to our country illegally. Finally, the Nation's fundamental approach to immigration is fatally flawed. It makes no sense. It has been wrong for many years. Today, only 20 percent of the people who come into our country come in on any merit-based program. Most come in on relationships with someone already here. Many have come illegally and they obtained amnesty in the past. They look to do that again. There are many other ways that people come here. But a very small percentage of the people who come to our country today come here as a result of having met certain qualifications that relate to education or job skills. That is not the right approach. I have looked and met with the top Canadian officials. I met with and talked with top officials of the Australian Government to talk about their program. Both of those programs, and also New Zealand and the United Kingdom, to a lesser degree, France, and other countries are moving to what they call a point system. This is a system by which applicants are evaluated on what they bring to the nation. It is founded on a simple concept that those nations have decided is important to them. The concept is this: Immigration should serve the national interest. How simple is that? In my committee of Health, Education, Labor, and Pensions, and in my Committee on the Judiciary, we have had a few hearings on this at my request in both cases. Very few Senators attended, frankly. Repeatedly the witnesses would say: The first question you people in the United States, you policymakers need to decide is: Is the immigration policy you wish to establish one that furthers the national interest? If you want to further the national interest, then I can give you good advice. If your goal is to help poor people all over the world and to take the national welfare approach, then we can tell you how to do that. You have to decide what your best goals are. If your goal is simply to allow everyone who is a part of a family, even distant relatives, to come, if that is your No. 1 goal, we can create a system that does that. But fundamentally they tell us, when pressed, that an immigration system should serve the national interest. Professor Borjas at Harvard wrote a book, probably the most authoritative book on immigration that has been written. The name of it is ``Heaven's Door.'' He testified at our committee hearing. He made reference to the fact that we have within our immigration system a lottery. This lottery lets 50,000 people apply to come to our country from various countries all over the world. We draw 50,000 names out, and they get to come into the country, not on merit but just pure random choice. It makes sense under the idea when it was originally created, which was we needed more diversity, we needed people from different countries, and this would give people from different countries a chance to apply. Professor Borjas at the Kennedy School at Harvard, himself a Cuban refugee, came here at age 12, said 5 million people apply to be in that lot from which we would choose 50,000--5 million. So if we have 5 million applicants, I ask my colleagues, and we are attempting to serve the national interest, how would we choose from that 5 million if we could only select and allow in 50,000? How would we choose if we are serving the national interest? I submit we would do what Canada does. We would say: Do you already speak English? How well? Do you have education? How much? Do you have job skills? Are they skills that we need in Canada? How old are you? Canada--I think Australia also--believes that the national interest is served by having younger people come because they will work longer and they will pay more taxes before they go on to the Medicare and health care systems in their older age. Are those evil concepts? Isn't it true that we would want to have people come into our country who have the best chance to succeed? Or do we believe the purpose of immigration is simply to allow certain businesses that use a lot of low-skilled labor to have all the low- skilled labor they choose to have? A willing employer and a willing worker. Professor Borjas says there are millions and millions of people all over the world who would be delighted to come here for $7 an hour, would love to and would come immediately if they could. I was in South America recently. They had a poll in Nicaragua that said 60 percent of the people in Nicaragua said they would come to the United States if they could. I heard there was one in Peru where 70 percent of the people said they would come here if they could. What about all the other countries, many of them poorer? Many of them would have an even greater economic advantage to come to America than those people coming from Peru. Obviously, more people desire to come than can come. They would ask: I am sure you guys have talked about this as you dealt with comprehensive immigration reform; what did you all decide? My colleagues, we never discuss this issue. We simply expand the existing program that this Government has that has failed and only 20 percent are given preference. We did add a program to give a certain number of higher educated people the right to come, but our calculations indicate that still only about 20 percent of the people who will be coming under the bill we passed will come on under a merit- based system. Canada has over 60 percent come based on merit. New Zealand I think is even higher than that. What we want to do, of course, is select people who have a chance to be productive, who are going to be successful, who can benefit from the American dream. It is so within our grasp. I actually have come to believe and am excited about the concept that we actually could do comprehensive reform. We can fix our borders. We absolutely can. We have already made progress. We are reaching a point where we could create a lawful system at our borders. In addition to that, we can confront the very tough choices about how to deal with people who are here illegally. And finally, we need to develop a system for the future flow of immigrants into America. I believe the columnist Charles Krauthammer said we should do like the National Football League does. We ought to look around the world at the millions of people who would like to come to the United States and pick the very best draft choices we can pick, pick the ones who will help America be a winning team. It will allow people to come into this country who are most likely to be successful, who speak our language, who want to be a part of this Nation and contribute to it, who have proven capabilities that means they can take jobs and be successful at them and can assimilate themselves easily into the structure of our Government. It is exciting to think that possibility is out there. Yes, we have been talking about the fence and, yes, the fence can be seen as sort of a grim enforcement question, but it is one part of the overall effort that we are participating in at this point to create a new system of immigration, comprehensively different than we have ever had before, one that serves our national interest, one that selects the people who want to come here based on their ability to succeed in our country and be successful and be harmonious and be able to take advantage of the great opportunities this Nation provides. It is so exciting to me, but we are going to have to let go of the bill that got through this Senate and that the House of Representatives would not even look at. The bill was nothing more than a rehash of current law, plus amnesty. It was a very, very, very bad piece of legislation. A lot of people voted against it, but it passed in this body. The House would not talk about it. If we would take our blinders off and if we would go back and think clearly about how our Nation should do immigration and talk to one another, I believe we can make more progress than people realize, and the American people could be proud of our system. I asked the people in Canada, and I asked the people in Australia: How do people feel about this? Are they happy with it? Yes, they are proud of it. I said: What do you think about us talking about your program? They said: We are proud you are looking at our program. We think it works. It is a compliment to us that you think there may be some value in it. I don't know why we never talked about that. We never had a single hearing in which the Canadians or Australians were asked to testify. These are countries that believe in the rule of law. Both of them say they have a high degree of enforcement. Yes, there are people who abuse the law, but they have a legal system and it works. Canada has workers who come and work for 8 months, and they go back home to their families. They can work 6 months; they can work 4 months. That is a temporary guest worker program. Then they have an asylum program where they take a certain number of people, like we have always done, who have been persecuted and oppressed. We will continue to do that. That is not a merit-based system. That is a system where we do it for humanitarian reasons. Fundamentally, the principle of our Nation, as we develop a new immigration policy, should be to serve our national interests. I believe we have that within our grasp. This step of building border barriers is important for two reasons: One, it is critical to creating a lawful system. No. 2, it is critical to establishing credibility with the American people because they rightly doubt our commitment, based on history, to do the right thing about immigration. They doubt that we are committed to doing the right thing. This is a good step to show them that we are, and then I think as we talk about some of these more difficult issues, we can have some credibility with our people when we ask them to make some tough decisions about how to handle immigration in the future. Mr. President, I thank you for the opportunity to share these thoughts.

Mr. SESSIONS

Mr. SESSIONS. After 9/11, we realized both of those were errors of the heart perhaps, but of the brain. And so what happened? We reversed both of them. We reversed them both. And we need to be sure that the legislation we are dealing with today does not create a long-term battle with the courts over everybody who is being detained. That is a function of the military and the executive branch to conduct a war. Madam President, I yield the floor. Mr. FEINGOLD addressed the Chair.

Mr. SESSIONS. Mr. President, I would like to make a few comments about section 7 of the bill that is before us today. This section makes a number of improvements to the Detainee Treatment Act, which was passed by the Congress and signed into law on December 30 of last year. First, section 7 will fulfill one of the original objectives of the DTA: to get the lawyers out of Guantanamo Bay. As my colleague Senator Graham has noted, these lawyers have even bragged about the fact that their presence and activities at Guantanamo have made it harder for the military to do its job. Mr. Michael Ratner, the director of the Center for Constitutional Rights, which coordinated much of the detainee habeas litigation, had this to say about his activities to a magazine: The litigation is brutal for [the United States.] It's huge. We have over one hundred lawyers now from big and small firms working to represent the detainees. Every time an attorney goes down there, it makes it that much harder [for the U.S. military] to do what they're doing. You can't run an interrogation . . . with attorneys. What are they going to do now that we're getting court orders to get more lawyers down there? This is what Congress thought that it was putting an end to when it enacted the DTA in 2005. That act provided that ``no court, justice, or judge shall have jurisdiction to hear or consider'' claims filed by Guantanamo detainees, except under the review standards created by that Act. The DTA was made effective immediately upon the date of its enactment. And as Justice Scalia noted in his Hamdan v. Rumsfeld dissenting opinion, the DTA's jurisdictional removal made no exception for lawsuits that were pending when the statute was enacted. Justice Scalia also pointed out that ``[a]n ancient and unbroken line of authority attests that statutes ousting jurisdiction unambiguously apply to cases pending at their effective date.'' He also noted that up until the Hamdan decision, ``one cannot cite a single case in the history of Anglo-American law . . . in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation.'' The Hamdan majority, on the other hand, found that the Supreme Court's precedents governing jurisdictional statutes were trumped in that case by a legislative intent to preserve the pending lawsuits. This congressional intent, the majority concluded, was manifested in minor changes that had been made to the language of the bill and, most expressly, in statements made by Senators regarding the intended effect of the bill. As Senator Graham has explained in detail in remarks in the Congressional Record on August 3, at 152 Cong. Rec. S8779, it appears that the Supreme Court was misled about the legislative history of the DTA by the lawyers for Hamdan. Those lawyers misrepresented the nature of the statements made in the Senate and caused the court to believe that Congress had an intent other than that reflected in the text of the statute. It certainly was not my intent, when I voted for the DTA, to exempt all of the pending Guantanamo lawsuits from the provisions of that act. Section 7 of the Military Commissions Act fixes this feature of the DTA and ensures that there is no possibility of confusion in the future. Subsection (b) provides that the bill's revised litigation bar ``shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.'' I don't see how there could be any confusion as to the effect of this act on the pending Guantanamo litigation. The MCA's jurisdictional bar applies to that litigation ``without exception.'' The new bill also bars all litigation by anyone found to have been properly detained as an enemy combatant, regardless of whether the detainee has been through the DC Circuit under the DTA or has been through a Combatant Status Review Tribunal hearing. The previous version of this bar, in the DTA, allowed detainees to bring conditions- of-confinement lawsuits after their release if their detention was not reviewed by the DC Circuit. Obviously, the Government could not force the detainee to appeal, and there are some who were released before CSRT hearings were instituted. The new bill states that as long as the military decides that it was appropriate to take the individual into custody as an enemy combatant, as a security risk in relation to a war, that person cannot turn around and sue our military after he is released. It should not be held against our soldiers that they take someone into custody, believing in good faith that he appears to be connected to hostilities against the United States, and then determine that the individual is not an enemy combatant and release the person. The fact of release should not be an invitation to litigation, so long as the military finds that it was appropriate to take the individual into custody in the first place. The biggest change that the MCA makes to section 2241(e) is that the new law applies globally, rather than just to Guantanamo detainees. We are legislating through this law for future generations, creating a system that will operate not only throughout this war, but for future wars in which our Nation fights. In the future, we may again find ourselves involved in an armed conflict in which we capture large numbers of enemy soldiers. It is not unlikely that the safest and most secure place to hold those soldiers will be inside the United States. The fact that we hold those enemy soldiers in this country should not be an invitation for each of them to sue our Government. We held very large numbers of enemy soldiers in this country during World War II. They did not sue our Government seeking release. The Rasul decision would seem to have required that enemy combatants held in this country during wartime can sue. If that court allowed enemy combatants held in Cuba to sue, it is inevitable that those held inside this country would have been allowed to sue as well. That is simply not acceptable. It would make it very difficult to fight a major war in the future if every enemy war prisoner detained inside this country could sue our military. Through section 7 of the MCA, we not only solve our current problems with Guantanamo, but we plan for future conflicts as well. We ensure that, if need be, we can again hold enemy soldiers in prison camps inside our country if we need to, without becoming embroiled in a tempest of litigation. I imagine that, now that Congress has clearly shut off access to habeas lawsuits, the lawyers suing on behalf of the detainees will shift their efforts toward arguing for an expansive interpretation of the judicial review allowed under the DTA. Paragraphs 2 and 3 of section 1005(e) of the DTA allow the DC Circuit to review a CSRT enemy combatant determination. The Government has provided a CSRT hearing to every detainee held at Guantanamo, with the likely exception of those transferred there this month, so all of those detainees will now be allowed to seek DTA review in the DC Circuit. Paragraphs 2 and 3 allow the DC Circuit to ask whether the military applied its own standards and procedures for CSRTs to the detainee, and they allow the court to ask whether those standards are constitutional and are consistent with nontreaty Federal law. I think that those standards speak for themselves, that they clearly allow only a very limited review. In particular, they do not allow the courts to second-guess the military's evidentiary findings. The courts simply are not in a position, they do not have the expertise, to judge whether particular evidence suggests that an individual is an enemy combatant. I would like to note here that this is the consensus view of the DTA at this time, at least for now. I have no doubt that in the future, lawyers will argue that these standards invite the court to reweigh the evidence, to take in evidence outside of the CSRT record, and to decide if the military was right about its factual judgment. At this time, however, both proponents and opponents of section 7 of the MCA seem to agree on what kind of review it will allow. Earlier today, for example, I heard Senator Specter, who opposes section 7, criticize the paragraph 2 and 3 review standards on the Senate floor. He said, ``the statute provides that the Combatant Status Review Tribunal may be reviewed by the Court of Appeals for the District of Columbia only to the extent that it was--the ruling was consistent with the standards and procedures specified by the Secretary of Defense. Now, to comply with the standards and procedures determined by the Secretary of Defense does not mean--excludes on its face--a factual determination as to what happens to the detainees.'' I have also come into possession of a so-called fact sheet on the DTA review standards that is being distributed on Capitol Hill by Human Rights First, a group that is lobbying Senators to oppose the MCA and to support the Specter amendment that was defeated earlier today. This fact sheet is titled, ``The Limited Review Allowed Under the DTA is No Substitute for Habeas.'' Here is what the Human Rights First fact sheet says: The DTA restricts the court to determining whether the prior CSRTs followed their own procedures. * * * * * It has been suggested that the court of appeals, in reviewing the CSRT decisions, can fix the problem simply by choosing to review the evidence itself. But that is simply not the way the statute reads. The government has taken the firm position in Bismullah that no review even of ``significant exculpatory evidence'' is permitted under the DTA. If Congress believes that the courts should be allowed to review the evidence--and they clearly should be--then it should change the statute to say so. It is no solution to hope that the courts will ignore the actual statutory language and rewrite the statute to correct the deficiency. There you have it. Senators have been told in floor debate by the chairman of the Judiciary Committee that the DTA ``excludes on its face'' any factual determination with regard to the Guantanamo detainees. The groups lobbying Senators with regard to the MCA have pointed out that having courts make their own factual determinations, to judge the sufficiency of the evidence behind the military's findings, ``is simply not the way the statute reads.'' We are informed that the Justice Department has taken the ``firm position'' that no evidentiary review is permitted under the DTA. And we are told that if we disagree with this system, if we think that ``the courts should be allowed to review the evidence,'' then we ``should change the statute to say so.'' The Senate is clearly on notice as to how the DTA review will work, what the statute says on its face, how the Justice Department has construed that statute. By rejecting the Specter amendment earlier today, and by passing the MCA later today, the Senate makes clear that it does not disagree with the Justice Department and does not want to change this system. I will close my remarks by quoting at length from the testimony of U.S. Attorney General William Barr, who spoke on the matters addressed by this legislation before the Judiciary Committee on June 15, 2005. Mr. Barr's testimony informs our understanding of the history, law, and practical reality underlying the DTA and the MCA. I would commend his statement to anyone seeking to understand these statutes and the complex relationship between the President's war-making power and the judiciary. This relationship is superficially similar to, but is fundamentally different from, the judiciary's oversight of the civilian criminal justice system. I particularly found to be true Mr. Barr's emphasis that the proper role of the courts in this area is not accurately described as ``deference'' to military decisions because deference implies that the ultimate decisions still lie with the courts. As Mr. Barr notes, ``the point here is that the ultimate substantive decision rests with the President and that the courts have no authority to substitute their judgments for that of the President.'' Here is an extended excerpt from Attorney General Barr's testimony regarding the detention of alien enemy combatants: The determination that a particular foreign person seized on the battlefield is an enemy combatant has always been recognized as a matter committed to the sound judgment of the Commander in Chief and his military forces. There has never been a requirement that our military engage in evidentiary proceedings to establish that each individual captured is, in fact, an enemy combatant. Nevertheless, in the case of the detainees at Guantanamo, the Deputy Secretary of Defense and the Secretary of the Navy have established Combatant Status Review Tribunals (``CSRTs'') to permit each detainee a fact- based review of whether they are properly classified as enemy combatants and an opportunity to contest such designation. As to the detention of enemy combatants, World War II provides a dramatic example. During that war, we held hundreds of thousands of German and Italian prisoners in detention camps within the United States. These foreign prisoners were not charged with anything; they were not entitled to lawyers; they were not given access to U.S. courts; and the American military was not required to engage in evidentiary proceedings to establish that each was a combatant. They were held until victory was achieved, at which time they were repatriated. The detainees at Guantanamo are being held under the same principles, except, unlike the Germans and Italians, they are actually being afforded an opportunity to contest their designation as enemy combatants. Second, once hostile forces are captured, the subsidiary question arises whether they belonged to an armed force covered by the protections of the Geneva Convention and hence entitled to POW status? If the answer is yes, then the captives are held as prisoners of war entitled to be treated in accord with the various requirements of the Convention. If the answer is no, then the captives are held under humane conditions according to the common law of war, though not covered by the various requirements of the Convention. The threshold determination in deciding whether the Convention applies is a ``group'' decision, not an individualized decision. The question is whether the military formation to which the detainee belonged was covered by the Convention. This requires that the military force be that of a signatory power and that it also comply with the basic requirements of Article 4 of the Treaty, e.g., the militia must wear distinguishing uniforms, retain a military command structure, and so forth. Here, the President determined that neither al- Qaeda nor Taliban forces qualified under the Treaty. The third kind of action we are taking goes beyond simply holding an individual as an enemy combatant. It applies so far only to a subset of the detainees and is punitive in nature. In some cases, we are taking the further step of charging an individual with violations of the laws of war. This involves individualized findings of guilt. Throughout our history we have used military tribunals to try enemy forces accused of engaging in war crimes. Shortly after the attacks of 9/11, the President established military commissions to address war crimes committed by members of al- Qaeda and their Taliban supporters. Again, our experience in World War II provides a useful analog. While the vast majority of Axis prisoners were simply held as enemy combatants, military commissions were convened at various times during the war, and in its immediate aftermath, to try particular Axis prisoners for war crimes. One notorious example was the massacre of American troops at Malmedy during the Battle of the Bulge. The German troops responsible for these violations were tried before military commissions. Let me turn to address some of the challenges being made to the way we are proceeding with these al-Qaeda and Taliban detainees. I. The Determination That Foreign Persons Are Enemy Combatants The Guantanamo detainees' status as enemy combatants has been reviewed and re-reviewed within the Executive Branch and the military command structure. Nevertheless, the argument is being advanced that foreign persons captured by American forces on the battlefield have a Due Process right under the Fifth Amendment to an evidentiary hearing to fully litigate whether they are, in fact, enemy combatants. In over 225 years of American military history, there is simply no precedent for this claim. The easy and short answer to this claim is that it has been, as a practical matter, mooted by the military's voluntary use of the CSRT process, which gives each detainee the opportunity to contest his status as an enemy combatant. As discussed below, those procedures are clearly not required by the Constitution. Rather they were adopted by the military as a prudential matter. Nonetheless, those procedures would plainly satisfy any conceivable due process standard that could be found to apply. In its recent Hamdi decision, the Supreme Court set forth the due process standards that would apply to the detention of an American citizen as an enemy combatant. The CSRT process was modeled after the Hamdi provisions and thus provides at least the same level of protection to foreign detainees as the Supreme Court said would be sufficient to detain an American citizen as an enemy combatant. Obviously, if these procedures are sufficient for American citizens, they are more than enough for foreign detainees who have no colorable claim to due process rights. Moreover, most of the guarantees embodied in the CSRT parallel and even surpass the rights guaranteed to American citizens who wish to challenge their classification as enemy combatants. The Supreme Court has indicated that hearings conducted to determine a detainee's prisoner-of-war status, pursuant to the Geneva Convention, could satisfy the core procedural guarantees owed to an American citizen. In certain respects, the protocols established in the CSRTs closely resemble a status hearing, as both allow all detainees to attend open proceedings, to use an interpreter, to call and question witnesses, and to testify or not testify before the panel. Furthermore, the United States has voluntarily given all detainees rights that are not found in any prisoner-of- war status hearing, including procedures to ensure the independence of panel members and the right to a personal representative to help the detainee prepare his case. Nevertheless, there appear to be courts and critics who continue to claim that the Due Process Clause applies and that the CSRT process does not go far enough. I believe these assertions are frivolous. I am aware of no legal precedent that supports the proposition that foreign persons confronted by U.S. troops in the zone of battle have Fifth Amendment rights that they can assert against the American troops. On the contrary, there are at least three reasons why the Fifth Amendment has no applicability to such a situation. First, as the Supreme Court has consistently held, the Fifth Amendment does not have extra-territorial application to foreign persons outside the United States. As Justice Kennedy has observed, ``[T]he Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of non-citizens who are beyond our territory.'' Moreover, as far as I am aware, prior to their capture, none of the detainees had taken any voluntary act to place themselves under the protection of our laws; their only connection with the United States is that they confronted U.S. troops on the battlefield. And finally, the nature of the power being used against these individuals is not the domestic law enforcement power--we are not seeking to subject these individuals to the obligations and sanctions of our domestic laws--rather, we are waging war against them as foreign enemies, a context in which the concept of Due Process is inapposite. In society today, we see a tendency to impose the judicial model on virtually every field of decision-making. The notion is that the propriety of any decision can be judged by determining whether it satisfies some objective standard of proof and that such a judgment must be made by a ``neutral'' arbiter based on an adversarial evidentiary hearing. What we are seeing today is an extreme manifestation of this--an effort to take the judicial rules and standard applicable in the domestic law enforcement context and extend them to the fighting of wars. In my view, nothing could be more farcical, or more dangerous. These efforts flow from a fundamental error--confusion between two very distinct constitutional realms. In the domestic realm of law enforcement, the government's role is disciplinary--sanctioning an errant member of society for transgressing the internal rules of the body politic. The Framers recognized that in the name of maintaining domestic tranquility an overzealous government could oppress the very body politic it is meant to protect. The government itself could become an oppressor of ``the people.'' Thus our Constitution makes the fundamental decision to sacrifice efficiency in the realm of law enforcement by guaranteeing that no punishment can be meted out in the absence of virtual certainty of individual guilt. Both the original Constitution and the Bill of Rights contain a number of specific constraints on the Executive's law enforcement powers, many of which expressly provide for a judicial role as a neutral arbiter or ``check'' on executive power. In this realm, the Executive's subjective judgments are irrelevant; it must gather and present objective evidence of guilt satisfying specific constitutional standards at each stage of a criminal proceeding. The underlying premise in this realm is that it is better for society to suffer the cost of the guilty going free than mistakenly to deprive an innocent person of life or liberty. The situation is entirely different in armed conflict where the entire nation faces an external threat. In armed conflict, the body politic is not using its domestic disciplinary powers to sanction an errant member, rather it is exercising its national defense powers to neutralize the external threat and preserve the very foundation of all our civil liberties. Here the Constitution is not concerned with handicapping the government to preserve other values. Rather it is designed to maximize the government's efficiency to achieve victory--even at the cost of ``collateral damage'' that would be unacceptable in the domestic realm. It seems to me that the kinds of military decisions at issue here--namely, what and who poses a threat to our military operations--are quintessentially Executive in nature. They are not amenable to the type of process we employ in the domestic law enforcement arena. They cannot be reduced to neat legal formulas, purely objective tests and evidentiary standards. They necessarily require the exercise of prudential judgment and the weighing of risks. This is one of the reasons why the Constitution vests ultimate military decision-making in the President as Commander-in-Chief. If the concept of Commander-in-Chief means anything, it must mean that the office holds the final authority to direct how, and against whom, military power is to be applied to achieve the military and political objectives of the campaign. I am not speaking here of ``deference'' to Presidential decisions. In some contexts, courts are fond of saying that they ``owe deference'' to some Executive decisions. But this suggests that the court has the ultimate decision-making authority and is only giving weight to the judgment of the Executive. This is not a question of deference--the point here is that the ultimate substantive decision rests with the President and that courts have no authority to substitute their judgments for that of the President. The Constitution's grant of ``Commander-in-Chief'' power must, at its core, mean the plenary authority to direct military force against persons the Commander judges as a threat to the safety of our forces, the safety of our homeland, or the ultimate military and political objectives of the conflict. At the heart of these kinds of military decisions is the judgment of what constitutes a threat or potential threat and what level of coercive force should be employed to deal with these dangers. These decisions cannot be reduced to tidy evidentiary standards, some predicate threshold, that must be satisfied as a condition of the President ordering the use of military force against a particular individual. What would that standard be? Reasonable suspicion, probable cause, substantial evidence, preponderance of the evidence, or beyond a reasonable doubt? Does anyone really believe that the Constitution prohibits the President from using coercive military force against a foreign person--detaining him--unless he can satisfy a particular objective standard of evidentiary proof? Let me posit a battlefield scenario. American troops are pinned down by sniper fire from a village. As the troops advance, they see two men running from a building from which the troops believe they had received sniper fire. The troops believe they are probably a sniper team. Is it really being suggested that the Constitution vests these men with due process rights as against the American soldiers? When do these rights arise? If the troops shoot and kill them--i.e., deprive them of life--could it be a violation of due process? Suppose they are wounded and it turns out they were not enemy forces. Does this give rise to Bivens' Constitutional tort actions for violation of due process? Alternatively, suppose the fleeing men are captured and held as enemy combatants. Does the due process clause really mean that they have to be released unless the military can prove they were enemy combatants? Does the Due Process Clause mean that the American military must divert its energies and resources from fighting the war and dedicate them to investigating the claims of innocence of these two men? This illustrates why military decisions are not susceptible to judicial administration and supervision. There are simply no judicially-manageable standards to either govern or evaluate military operational judgments. Such decisions inevitably involve the weighing of risks. One can easily imagine situations in which there is an appreciable risk that someone is an enemy combatant, but significant uncertainty and not a preponderance of evidence. Nevertheless, the circumstances may be such that the President makes a judgment that prudence dictates treating such a person as hostile in order to avoid an unacceptable risk to our military operations. By their nature, these military judgments must rest upon a broad range of information, opinion, prediction, and even surmise. The President's assessment may include reports from his military and diplomatic advisors, field commanders, intelligence sources, or sometimes just the opinion of frontline troops. He must decide what weight to give each of these sources. He must evaluate risks in light of the present state of the conflict and the overall military and political objectives of the campaign. Furthermore, extension of due process concepts from the domestic prosecutive arena as a basis for judicial supervision of our military operations in time of war would not only be wholly unprecedented, but it would be fundamentally incompatible with the power to wage war itself, so altering and degrading that capacity as to negate the Constitution's grant of that power to the President. First, the imposition of such procedures would fundamentally alter the character and mission of our combat troops. To the extent that the decisions to detain persons as enemy combatants are based in part on the circumstances of the initial encounter on the battlefield, our frontline troops will have to concern themselves with developing and preserving evidence as to each individual they capture, at the same time as they confront enemy forces in the field. They would be diverted from their primary mission--the rapid destruction of the enemy by all means at their disposal--to taking notes on the conduct of particular individuals in the field of battle. Like policeman, they would also face the prospect of removal from the battlefield to give evidence at post-hoc proceedings. Nor would the harm stop there. Under this due process theory, the military would have to take on the further burden of detailed investigation of detainees' factual claims once they are taken to the rear. Again, this would radically change the nature of the military enterprise. To establish the capacity to conduct individualized investigations and adversarial hearings as to every detained combatant would make the conduct of war--especially irregular warfare--vastly more cumbersome and expensive. For every platoon of combat troops, the United States would have to field three platoons of lawyers, investigators, and paralegals. Such a result would inject legal uncertainty into our military operations, divert resources from winning the war into demonstrating the individual ``fault'' of persons confronted in the field of battle, and thereby uniquely disadvantage our military vis-a- vis every other fighting force in the world. Second, the introduction of an ultimate decision maker outside of the normal chain of command, or altogether outside the Executive Branch, would disrupt the unitary chain of command and undermine the confidence of frontline troops in their superior officers. The impartial tribunals could literally overrule command decisions regarding battlefield tactics and set free prisoners of war whom American soldiers have risked or given their lives to capture. The effect of such a prospect on military discipline and morale is impossible to predict. The Supreme Court's decision in Rasul v. Bush does not undercut these long-standing principles. In Rasul, the Supreme Court addressed a far narrower question--whether the habeas statute applies extraterritorially--and expressly refrained from addressing these settled constitutional questions. The Court, in concluding that the habeas statute reached aliens held at Guantanamo Bay, relied on the peculiar language of the statute and the `` `extraordinary territorial ambit' of the writ at common law.'' Of course, the idiosyncrasies of the habeas statute do not have any impact on judicial interpretation of the reach of the Fifth Amendment or other substantive constitutional provisions. Moreover, the Court's recognition in Rasul that the United States exercises control, but ``not ultimate sovereignty'' over the leased Guantanamo Bay territory confirms the inapplicability of the Fifth Amendment to aliens held there. Nevertheless, even if Guantanamo Bay is somehow deemed sovereign United States territory, the Fifth Amendment is still inapplicable. The Supreme Court, in addition to the requisite detention on sovereign United States territory, demands that the aliens only ``receive constitutional protections'' when they have also ``developed substantial connections with this country.'' Thus, under the Court's formulation, ``lawful but involuntary'' presence in the United States ``is not of the sort to indicate any substantial connection with our country'' sufficient to trigger constitutional protections. The ``voluntary connection'' necessary to trigger the Fifth Amendment's due process guarantee is sorely lacking with respect to enemy combatants. Whatever else may be said, there can be no dispute that these individuals did not arrive at Guantanamo Bay by free choice. Captured enemy combatants that have been transported to Guantanamo Bay for detention thus are not entitled to Fifth Amendment due process rights. It should also be noted that the Supreme Court's decision in Rasul was a statutory ruling, not a constitutional one. In other words, the Court concluded only that the federal habeas statute confers jurisdiction on federal district courts to hear claims brought by aliens detained at Guantanamo Bay. The Court nowhere suggested that the Constitution grants such aliens a right of access to American courts. An important consequence follows: Congress remains free to restrict or even to eliminate entirely the ability of enemy aliens at Guantanamo Bay to file habeas petitions. Congress could consider enacting legislation that does so--either by creating special procedural rules for enemy alien detainees, by requiring any such habeas petitions to be filed in a particular court, or by prohibiting enemy aliens from haling military officials into court altogether.'' Mr. President, with the Military Commissions Act, the Senate today enacts Mr. Barr's third suggestion. We create a system that is consistent with our treaty obligations but that also is consistent with military tradition and the needs of our fighting forces in a time of war. It is a system that will serve this Nation well. I look forward to the act's passage and enactment.

Mr. SESSIONS. Madam President, I ask unanimous consent for an additional minute.

Mr. SESSIONS. Madam President, habeas corpus--the right to have your complaints heard while in custody--is a part of our Constitution. But we have to remember habeas corpus did not mean everything in the whole world when it was adopted. So what did ``habeas'' mean? What does it mean today and at the time it was adopted? It was never, ever, ever, ever intended or imagined that during the War of 1812, if British soldiers were captured burning the Capitol of the United States--as they did--that they would have been given habeas corpus rights. It was never thought to be. Habeas corpus was applied to citizens, really, at that time. I believe that is so plain as to be without dispute. So to say: Habeas corpus, what does it mean? What did those words mean when the people ratified it? They did not intend to provide it to those who were attacking the United States of America. We provide special protections for prisoners of war who lawfully conduct a war that might be against the United States. We give them great protections. But unlawful combatants, the kind we are dealing with today, have never been given the full protections of the Geneva Conventions. Second, my time is limited, and I have been so impressed with the debate that has gone on with Senators Kyl and Cornyn and Graham, and I associate myself generally with those remarks, but I want to recall that in a spate of an effort to appease critics and those who had ``vague concerns,'' not too many years ago, this Congress passed legislation that said that CIA-gathered information could not be shared with the FBI. We passed a law in this Congress to appease the left in America, the critics of our efforts against communism, primarily. And we have put a wall between the CIA and FBI. So that was politically good. Everybody must have been happy about that. I was not in the Senate then. Then they complained that the CIA was out talking with people who had criminal records who may have been involved in violence, and this was somehow making our CIA complicitous in dealing with dangerous people, and we banned that. We passed a statute that eliminated that. And everybody felt real good that we had done something special.

Mr. SESSIONS. Madam President, if the chairman would approve, I would ask for 3 minutes.

Mr. SESSIONS. Madam President, I will be pleased to do so.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, we know that fencing works. It is a proven approach. The San Diego fence has been incredibly successful. The illegal entries have fallen from 500,000 to 100,000. Crime in San Diego County, the whole county, dropped 56 percent. It is an absolutely successful experiment and demonstration of this working. The chief of Border Patrol told one of the House hearings that it multiplies the capacity of their agents to be effective. There is no way individual agents can run up and down the border without some barriers in these high-traffic areas. Secretary Chertoff asked us explicitly for 800 miles of barriers and fencing. He asked for that. We voted for it in May. We voted 83 to 16 in favor of the fence, and in August we voted 93 to 3 in favor of funding. But we haven't gotten there yet. This bill is the kind of bill which can allow us to go forward and complete what the American people would like to see, and maybe then we can have some credibility with the public and we can begin to deal with the very important, sensitive issues of comprehensive immigration reform which I favor. But I believe the present bill that came through the Senate did not meet the required standard. We can do much better. We have voted for this. We voted for it at least three times to make it a reality. And then we will have some credibility with the American people after we do that and then begin to talk comprehensively about how to fix an absolutely broken immigration system. I urge support of cloture.

Mr. SESSIONS. Mr. President, I thank Senator Enzi, our chairman, for his great leadership and persuasive remarks earlier on this important issue. My good friend, Dr. Coburn, has personally treated people with AIDS and has dealt with women who have had babies with AIDS. It is a matter deeply important to him. Senator Burr is a force in our committee. He works extremely hard. His remarks go to the core of what we are all about here. He explained it in great detail. I am so appreciative of that. I will just say a few things that I believe are important. Senator Dayton, I must tell you that my good friend Senator Enzi is a very fair man. If the chairman were asked, Chairman Enzi, why should New York give up anything? Why shouldn't they insist on keeping the special position they have? Let me ask this question: How did New York get that special position? How did it happen? They came to the Congress a number of years ago. They said: We have an extraordinary problem in New York. Our problem is great. We have this growing problem with AIDS, and we need extra money. The Nation said: We believe you are hurting, New York. We believe you have a special problem, and we will give you special money, extra money. You will get more than the rest of the country because it appears that the disease is more centered there and is spreading most rapidly there. That was a good and decent thing for the country to do. It made sense that this bill passed. I am not disputing that. But I am telling you right now, as a representative of the people of the State of Alabama, having talked to the leadership that deals with AIDS in my State, they are really upset. They cannot imagine how it is possible that now my State and the entire Southern region is showing a faster increase in AIDS than any other region of the country--the South has the highest rate of increase of any region in the country. I will show this chart. It is actually beginning to surge here. It is a crisis in our State. Even this new bill, as Chairman Enzi said, still provides more money per patient for a big-city State than we would get in Alabama, even though our AIDS rate increase is higher by far than the Northeast or other areas. How can that be justified? I know the people of New York say that New York City deserves more money to protect itself from terrorists because terrorists are more likely to attack New York. They complain about this. But the truth is, they get a lot more money in New York for that protection than the rest of the country gets. I think current legislation will give them even more for it. Why? Because the terrorist threat is more real. Well, the AIDS threat is real here; more real in Alabama. And it is falling on poor people and it is falling on the African-American community and it is falling hardest on African- American women. Senator Burr said that, and that is an absolute fact. The numbers bear it out without any doubt whatsoever. I believe a fair proposal is on the floor of the Senate. I believe if we had any pretense of passing legislation that deals fairly and objectively with the deadly disease of AIDS, we need to pass this legislation. It is absolutely not right to continue this disproportionate shifting of revenue from States all over America to big cities that are getting almost twice as much in some instances as the poorer States and the rural States. It is not right to continue that. We need to fix that. The chairman didn't overreact. Maybe next time, if we can't get this bill passed, we ought to pass a bill that makes it completely level across the board and not leave some of these States with a continued advantage. They have had an advantage for years and years now. I suggest that we need to work on that and work on it hard. Let me point out again the yellow line which represents the increase in the South--far higher than the Northeast and the West. That is where the big cities are that are getting the biggest amount of money per patient, not just more money total but more money per patient. We have all read reports of abuses of those moneys and some of the worst things they are doing in some of those centers. Senator Coburn mentioned the great conferences they go to where they have rock concerts and spend this money that they claim they do not have, I guess, to treat people who are sick. Let's look at the next chart just to make one more point about what this legislation that Chairman Enzi and the committee hammered out is trying to do. There are 1.185 million Americans living with HIV/AIDS, and 250,000 of them do not know they are infected. One of the greatest things we can do is to make sure that people who are infected with HIV/ AIDS know it as soon as possible. Treatment will commence immediately. It can mean years of extra life, years of extra healthy ability to live a normal life if we diagnose them early. This bill provides new moves toward early diagnosis, early detection, and early testing. It absolutely is the right thing to do. I was in my home State talking to some of our AIDS people who work on a daily basis. They told me about a lady who came in pregnant, and they did a test on her. She was 7 months pregnant. She was positive for HIV. That was a tragedy, of course. But that child, given the right treatment, is almost certain to be born without AIDS because she was diagnosed as having it before the child was born. Had she not been diagnosed, there would have been a 50-50 chance that the child would have been born with AIDS. What a tragedy which was averted in that instance. They began to talk to her. They ended up talking to her boyfriend. He agreed to be tested. They found out that he was positive. He didn't know that. Had he known that, he would never have infected the lady. I am convinced of it. Most people are going to protect themselves and their partners if they know they have AIDS. There are a lot of reasons for early detection. One is that it will help reduce the spread of AIDS because most people would not want their partners to be infected. And it would allow them to get on medication at the earliest possible time. So we made some real progress in that area. It can save lives and money in the long run. I salute the chairman. How the Senator has time to work all the bills he is leading members on in the HELP committee, I do not know. It is a tremendous challenge and the Senator does it with good humor and consistent efforts to do right thing. The Senator is exactly right on this important issue. I thank the Senator for his leadership. We must pass this reform. We must have equity in distribution of the money. It absolutely needs to show a shift of resources to the most threatened area of our country--that is the South, our poor, our African American community, and particularly, African American women. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I will continue a couple more minutes. Fencing works. We have a major problem. Last year, our Border Patrol agents apprehended 1.12 million people along our border coming into our country unlawfully. Can you imagine that? Where we did build fencing along the San Diego border--only 14 miles, but it was one of the worst areas--that area was tremendously improved. Crime went down, drug dealing went down, violence went down, illegal immigration plummeted and property values went up. But we have 1,800 miles along the border. This bill would not provide funding and authorization but for fencing about one-third of that distance. I will share with my colleagues some of the debate in the House of Representatives recently, as they passed the very bill that is before us. Chairman Royce--he is from California--who chairs the International Terrorism and Nonproliferation Subcommittee talked about the difficulties they have had with a breach, a gap in the border fencing. He said this: It is called ``smugglers' gulch,'' a fence that runs from the foothills to the ocean through that small 3-mile breach. It has taken 8\1/2\ years to get the California Coastal Commission to go along with closing that fence in consultation--8\1/2\ years to get it done. He talked about the problem of that gap. And he talked about the field hearings he had participated in. He said: We heard from witnesses, and we heard them express that border fencing was very effective. He quoted Darryl Griffen, who is the chief agent in San Diego for the Border Patrol--the chief agent. Mr. Griffen, referring to the fencing, said this: It is a great force multiplier. It expands our enforcement capacity. It allows us the discretion to redeploy agents to areas of vulnerability or risk. It is one component that certainly has been integral to everything we have accomplished here raising the level of security. That is what the chief of the Border Patrol for San Diego said. So people will tell you fencing makes no difference, it is not important, it does not help. It is not so. Listen to the professionals. I know President Bush has been reluctant to support fencing, but this man works for President Bush. He testified, as has Secretary Chertoff, about the subject. Secretary of Homeland Security Chertoff supports the fence, the bill that we passed in the Senate. Indeed, it was passed on his recommendation, the details of it were. Then Chairman Royce, in the House, who chairs the International Terrorism Subcommittee, said this about the dangerous people who are coming across the border: So we see people coming over the border illegally from Afghanistan, Angola, Jordan, Qatar, Pakistan, Yemen. And I will give you one example. Mohammed Karani is the brother of a commander of Hezbollah in south Lebanon. He came over the border in my State in the trunk of a car. He paid a coyote to get him across the border. He was later arrested in Dearborn, Michigan. He is serving 4\1/ 2\ years. He is a member of Hezbollah. He was in the process of securing funds and resources for Hezbollah in the United States. He then goes on to say: Two border Governors have declared states of emergency over illegal immigration. Then one of the agents told him a personal story of stopping a man who had been trained in an Afghan training camp originally from Uzbekistan. This man injured the Border Patrol agent, actually bit his arm as he was trying to take him down. This agent told Chairman Royce one of his concerns was this was the second time the man had tried to come into the country after 9/11. So I would say we are dealing with an important issue. I am glad to see from previous votes that the Senate is coming around to a uniform position on it. It is time for us now, as we wind up this session, to fulfill our obligation for actually making a law, legislation to authorize the building of the fence, and then, in the few days we have left, to come forward with legislation that will actually fund this requirement we authorize. Otherwise, we risk going home and even further arousing cynicism and irritation among the voters who have sent us here. I believe we can get it done. I think we are moving in the right direction. I am optimistic. But there will be some around here who would like to see it fail in the last minute. Let's don't let that happen. Let's follow through, and let's be consistent with the wishes of the American people and the security of the United States. Mr. President, I yield the floor.

Mr. SESSIONS. All right. I will wrap up and be pleased to yield to the Senator. The Senator is going to ask unanimous consent to be recognized after I finish?

Mr. SESSIONS. Mr. President, if the Senator will yield, I think the Senator has provided great leadership on security on a number of issues. You may be talking about other issues as we go forward right now, but I know the Senator would agree that our borders do represent vulnerabilities, and fixing our borders is also an aspect of national security, as I read of Hezbollah people coming across and others who have dangerous reputations. I also thank the Senator for his steadfast leadership and his clear thinking in regard to the fundamental issue that barriers do represent a critical part of what we need to do to have a lawful border.

Mr. SESSIONS. Mr. President, the House and Senate have a piece of legislation more commonly known as the Fence bill, but it is really a bill to establish operational control of our borders through fencing and other means. It includes authorization for 700 specific miles fencing along the Mexican border and a study of the situation on the northern border. It is designed to help multiply the capacity of American Border Patrol agents to be effective in creating a lawful border instead of the unlawful border we have. It passed the House with a strong bipartisan vote. They have had five formal hearings on the matter and have considered information from previous hearings. They had a number of field hearings in August and they actually talked to people in the region to find out what is going on. The House has sent the Senate a bill they have worked on for some time and to which they have given a great deal of thought. It is very similar to the bill we passed in the Senate which authorized 870 total miles of physical infrastructure at the border. Let me take a moment to discussion the history of the legislation in this Senate dealing with barriers at the border. I will discuss why the barriers are an important component--not all of what we need to do, but an essential component of what we need to do--to create a lawful system of immigration. But first let us talk about the votes we have had in the Senate. On May 17, I offered an amendment that mandated the construction of 370 miles of fencing and 500 miles of vehicle barriers along the southwest border of the United States. That is a total of 870 miles of physical barriers. This is not a lot different from what the House is sending the Senate, some 700 or so miles of fencing. When we voted on my amendment, we discussed it at some length. I did not know how we would vote. I didn't know how the vote would turn out. A number of Members said they were for fencing; a number of Members said they were against fencing. I argued that good fences make good neighbors. It clarifies where property lines are, what your rights are, and neighbors can get along pretty well. Leave them ambiguous, and people get in fusses. At any rate, when we voted, the vote was 83 to 16 to approve my amendment mandating construction of this fence. That was part of the overall immigration bill. That immigration bill was fatally flawed. The truth is, it is not going to become law. We can all be thankful for that. This amendment, though, was voted on 83 to 16. A lot of our colleagues say, I voted for an amendment to build a fence; I voted as one of the 83. But, we all are grownups, we know that legislation containing that amendment is not going to become law. So, now it is time to either put up or shut up about enforcement. It is time to either be honest with our constituents and say, I am not going to vote for a stand alone fence bill, or, yes, I believe a fence is an important component of border security and I will vote for this bill because it takes the first step. So where did the Senate go after the first vote of 83 to 13? I suggest that strong vote indicated border fencing and barriers are a high priority of this Senate. This was a strong bipartisan vote, if people were voting with integrity, to build a fence. We had a second vote. One of the things that is unusual about the Senate, to people who are not used to it, is a vote to authorize a matter--a subject, a fence--is not the end of it. Before that construction can take place, the Congress has to vote again to appropriate the money to build it. It takes two votes. One vote can be a signal, but it does not have any reality until a second vote is a fact. When the Department of Homeland Security appropriations bill hit the Senate, we were more than a little disappointed that even though the original vote was 83 to 16, when we come along with the Department of Homeland appropriations bill, what did we see? Thirty-nine miles of vehicle barriers only. This was most discouraging. I urged my colleagues, if they were serious about the previous vote, we ought to have a vote to actually fund it. I offered an amendment that would actually have funded this fence at $1.8 billion which we think if we get someone to run it as it ought to be run and build it in a cost-effective way, it would be enough to meet that standard. I offered that amendment on July 13. It would have reduced a percent or two of funding for other appropriations in the bill, an across-the- board reduction, and we voted on it. Unfortunately, only 29 Senators voted to actually appropriate the money to do what they had already voted to do. That was very discouraging to me. I talked about it, particularly the fact that if there is one area where the American people are most cynical about Congress, it is about their protestations they are doing everything they can do to create a lawful system of immigration when they are actually not. They are very cynical about that. They have every right to be. The American people have understood this issue for 30 years. No President, no Congress, has listened to them and done what actually needs to be done and could be done to create a lawful system of immigration. This was most troubling. So we continued to study what could be done to get fencing built. On August 2 the Defense bill was in the Senate. The National Guard had been deployed to the border and was making some progress, assisting those at the border--not as much as some would like and would hope, but it has made a positive step. They have the capability of building some fencing and actually were already working on some fencing projects. Again, I offered an amendment on the floor to actually fund the fencing, this time through the Defense Department, through the National Guard. The amendment would have let them either build the fencing themselves, or manage private contractors who would build a fence. When we voted on that amendment, perhaps after my colleagues had spent some time talking to their constituents, the vote to authorize $1.8 billion for funding passed 93 to 3. So we got 93 to 3. Now we are cooking. We have money, we have actually put up money to follow through on the fencing idea. I was very happy about that. In the course of the conference on the Defense appropriations legislation that we won the amendment vote on, I was informed they were moving $1.8 billion from the Department of Defense bill over to Homeland Security bill which was also in their conference because that was the more appropriate vehicle to put funding to build a fence for Homeland Security. So, I was told that the Homeland Security Appropriators would handle it. Now we are hearing that less money for the fence is going to be included in the conference report, that was included in my amendment. There was an article in the paper today, one of the Web sites of the AP, saying they agreed to $1.2 billion instead of $1.8 billion. That is a 30-percent reduction. We voted to fund a $1.8 billion one-time expenditure to build miles of fence and barriers. It is something that ought to be done at one time and it will save money in great amounts over the long term. I am worried about that reduction in funding. Some have said the numbers may even be worse than that because those in charge of the process feel an obligation to fund other things related to Homeland Security and they may not even appropriate the full $1.2 billion for fencing construction. I hope that is not so. I think that would be unacceptable. That would be inconsistent with the votes we have had and would not make Congress look good. It would not be the kind of action worthy of a Senate that is attempting to gain the respect of the American people on the subject of immigration, a subject about which they have lost the respect of the American people and deserve to get back. So the House passed a bill. They passed an authorization bill that mandates the fencing, very similar to what the Senate voted for, and is now before the Senate. A filibuster was suggested, indicated by the several procedural votes we have had to have on this bill. The majority leader had to file for cloture on the motion to proceed. That gives 30 hours of debate. Then 30 hours later, we voted on the motion to proceed and we did not see the filibuster continue. The vote was 94 to 0 to proceed to the Secure Fence Act. It took a lot of time, not much debate. I was one of the few Members who spoke. The 30 hours slowed down everything we were doing. The people are saying, I am for a vote, I voted for cloture. Why did we have to have cloture? Why couldn't we move straight to the bill as we do time and time again in this Senate--although less and less, as time has gone by. We are in a slowdown mode. We are moving along now. We will have a vote, I thought today, on cloture on the bill. However, it looks as though that may be tomorrow. Then we will have another 30 hours of debate. Then we will have an opportunity or complaints about how many amendments can be offered or fall. Who knows where this will go? There are some Members who like to claim they support barriers at the border, but when the chips are down, through legerdemain in this body, manage to create logjams and headaches so it will never become law if it appears that is their wish. I suspect we will have people who say they want to add amendments on comprehensive reform, on amnesty, on agriculture jobs or other issues that would kill this amendment if adopted. They want to try to offer those amendments. Or they are complaining that virtual fencing, some sort of a satellite, unmanned aerial vehicle, can do the same thing as a fence. That is not so. It can be an asset, but it cannot replace individual people apprehending people coming across the border illegally--not a virtual fence. How silly is that? They will say they do not favor the locations where the fencing is or they will say they favor fencing, but they really favor comprehensive reform and if we pass anything such as fencing, even though the American people want it, then the American people will not pass their version of amnesty or whatever they want to see in the form of comprehensive reform. They are afraid the American people will get what they want, and if the American people get what they want in terms of increased enforcement, they may not be so interested in their ideas about how to reach final settlement on amnesty. We will have two real votes on fencing this week: cloture on the underlying bill and final passage. We should be able to achieve cloture and final passage. It takes 60 votes, but we have had 80, 90 votes on this before. Without this authorization language, there will be no mandate that the fencing act will be constructed or in what manner it will be constructed. So these votes are the real test this week--not the final test, but very critical steps in the process. The American people will want to watch and see if they agree with their Senators in how they vote. I note we will also have to have some more votes somewhere along the line that are also critical that deal with actual funding of the border barriers. I see my colleague from Oklahoma is in the Chamber, my distinguished colleague on the Armed Services Committee, who chairs the Environment and Public Works Committee. I ask my colleague, do you have a time agreement to speak? What is your schedule?

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I would like to make some remarks today about Alabama's 2006-2007 Teacher of the Year, Ms. Cameron McKinley. Ms. McKinley has been a technology specialist for the Hoover City School System since she left her successful career as a businesswoman in the marketing field over 10 years ago to pursue her dream of teaching. Within the Hoover City School System, Ms. McKinley has taught computer education, instructional technology, and summer technology camps. Ms. McKinley, a magna cum laude graduate of the University of Alabama with a bachelor's degree in corporate finance/investment management and marketing, is a national board certified teacher. I would like to commend Ms. McKinley's efforts on behalf of her students, and sincerely congratulate her for this very high honor. I appreciate her dedication to educate our children, as we know that an investment in our children is one of the most important investments that we can make as a nation. Ms. McKinley's decision to change careers to give her life to our children is a wonderful act and it is made all the more remarkable for being selected as Teacher of the Year. This is, indeed, a heartwarming story. With Ms. McKinley's help, and the aid of other teachers like her, we will continue to raise up quality leaders that will serve our country and our children in the years to come.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, the bill that is before us today requires the Secretary, not later than 30 days after passage, to evaluate the authority of our Customs and Border Protection agents to stop vehicles that enter the United States illegally and that refuse to stop when ordered to stop. Compare that authority with the authority given to the Coast Guard to stop vessels on the high seas that don't stop when they are ordered to stop, and to make an assessment about whether the Border Patrol authority needs to be expanded. We have a real problem with people just riding by and placing people at risk by not stopping. That situation needs to end. We need to give our agents authority sufficient for their own personal safety and the protection of the laws of this country. The Secretary would be required to report his decision within 60 days. The bill further calls for a northern border study to assess the feasibility of a state-of-the-art infrastructure security system. The report will assess the necessity for such a system, the feasibility of implementing a system, and the economic impact of the system. We need to look at the northern border. We are not arresting 1 million people-plus a year on the northern border. It does not have anything like the impact of the movement of people illegally such as we have on the southern border, but we need to watch that, too. Fencing is proven. In San Diego, where they built a fence a number of years ago, crime has fallen dramatically. According to the FBI Crime Index, crime in San Diego County--the whole county--dropped 56 percent between 1989 and 2000. Can you imagine that? Just by ending the open border that existed, vehicle drive-throughs where they do not stop--and the reason they have fallen from between 6 and 10 a day before the construction of the fence, to only 4 drive-throughs in 2004, the whole year. This is a mockery of law when 6 to 10 people are just driving through the border ignoring the Border Patrol officers who are there. What kind of mockery of law is that? Fencing has reduced illegal entries in San Diego. According to the numbers we have, apprehensions decreased from 531,000 in 1993 to 111,000 in 2003. That is by four-fifths. That is only one-fifth the number being arrested today as there were 10 years ago as a direct result of serious enforcement bolstered by physical barriers. Fencing has also reduced drug traffic in San Diego. In 1993, authorities apprehended over 58,000 pounds of marijuana coming across the border. In 2003, only 36,000 pounds were apprehended. In addition, cocaine smuggling decreased from 1,200 pounds to 150 pounds. I am glad to hear that the majority leader--and the Democratic leader--indicated he would move to have this bill come forward on the Senate floor. If there is some tweaking which needs to be done, that will give us an opportunity to do that. I think the bill is fundamentally sound in all respects. I urge my colleagues to look at it. I think they will feel comfortable that it is consistent with their previous votes in this body for a fencing measure. But the Members of our body need to understand that our first vote on fencing, which we authorized on the immigration bill, is not going to be effective because that bill is not going to pass. It was an amendment to that bill. If we are going to do anything before we leave this year--and the American people should be watching us carefully-- this is what we need to do. We have an opportunity now to stand up and make real what we have talked about and what we voted for. If we don't do it, we will not make that reality come into effect, and we will not be faithful to the promises we made to our constituents. And, once again, we will see this kind of cynicism and disrespect for Congress because of our inconsistency in what we say and what we do. Too often I have observed in this body when we come up with an idea about immigration that does not work, it will pass. If you come up with something that actually does work, for some reason or another, even if it is voted and passed in one body or other, it never seems to really become law. This time we need to make our legal system work. I thank the Chair. I reserve the remainder of my time.

Mr. SESSIONS. Mr. President, I would like to make some comments on this legislation and ask that I be notified after 8 minutes.

Mr. SESSIONS. Mr. President, we are indeed a nation of immigrants. We will always have immigrants coming to our country, and they have enriched our Nation in so many different ways. It is time for us, however, to recognize that the policies we have adopted as a Nation are not working; that the law that we as Americans respect so greatly is being made a mockery of; the system is in shambles, and the American people are very concerned about it--as they rightly should be. I believe public officials are coming to understand the gravity of the problem after the American people have led them at last to that event. For the last 30 or 40 years, the American people have been right on this subject. They have asked for a lawful system of immigration. They have asked for a system of immigration that serves the interests of the United States of America. And they have expressed continual concern about the illegality that is ongoing. Frankly, the politicians and Government officials have not been worthy of the good and decent instincts and desires of the American people. Finally, I think those voices are being heard today. We want to talk about the House bill that is on the floor of the Senate today. We are asking that this legislation be considered by the Senate. The majority leader has had to file for cloture because apparently some in this body do not even want to consider this legislation. They do not want to talk about it, push it away through surreptitious legerdemain. They want to figure out a way to undermine whatever legislation has been passed and make sure nothing ever gets done. That has been the problem. I hate to say it. We have gone again and again, and we have promised we are going to do something and we tell the American people we are going to do this and we are going to do that. But they are not ignorant, they know we have not done anything, except for the last few months we began to take a few steps that had some significance. But for the last 40 years we have basically had a system driven by illegality that is not worthy of the American people, not worthy of our heritage of law, and it must end. Let me tell you what happened in the Senate about the fencing issue. Five months ago, May 17, my colleagues, by a vote of 83 to 16, after talking to their constituents, I submit, approved my amendment to mandate the construction of at least 370 miles of fencing and 500 miles of vehicle barriers along the southwest border. That totals 870 miles of physical barriers, either a fence or a vehicle barrier. Admittedly, that was a strong vote in this body, indicating that fencing on the southern border is and should be a part of our plan to recapture a legal system of immigration in America. It remains one of our important priorities. On August 2, my colleagues, this time, by a vote of 93 to 3, voted to fund the construction of those miles of fencing and barriers on the DOD appropriations bill as part of the National Guard effort at the border. Today we will vote again. I expect and hope that the Senate will have the votes for cloture so we can move forward with this bill and not have it obstructed from even being debated in the Senate. The miles of fencing contained in this bill are not that different from what the Senate had already voted for, 93 to 3 to fund this year. The Senate has already voted to fund them, and we are moving forward. This bill simply requires--the House bill that has been passed by the other body--that more of those miles be fencing in designated areas. I will make this point: We are not there yet. Just because we have had these votes, just because the House has voted for fencing, just because the Senate, by an overwhelming vote, has authorized fencing, we have not begun to construct that yet. We have to get the money, and we have to get a final bill. The amendment I offered--that passed 83 to 16--was part of the comprehensive immigration bill. That bill is not going to become law. That whole bill is not going to become law. So if we are going to commence now to build a barrier on the border, we need to pass this legislation that actually authorizes it. So don't go back home and say I voted for it, but I didn't vote for this bill. This bill is going to determine whether we actually do something and we authorize it and direct how it is to be done, not your previous vote. That is what has been happening. We have always said we have had these votes, but when the dust settled we never made it law and never made it reality. I urge my colleagues to understand that. Without this legislation we are not going to get there in the way you previously voted, and everybody needs to understand that. Let me tell you a little bit about what is in the legislation. The majority leader summed it up correctly. I appreciate his leadership and his strong support from the beginning for sufficient border barriers. Majority Leader Frist is committed to a good and just solution of the immigration problem in America, but he has come to understand that we have to take steps and do some things, and one of them is fencing. This is what this bill will do. It will establish operational control of the border. Most people think we ought to have that now but we do not. We do not have operational control of the border. So not less than 18 months after the enactment of this bill, the Department of Homeland Security must take all actions necessary and appropriate to achieve and maintain operational control of the border. Isn't that what we want? Isn't that what we have been asking for, for 30 years? Within 1 year of enactment, and annually thereafter, the Secretary must report to Congress and to the American people on the progress made toward achieving operational control of the border. We are not going to just pass a bill this time and forget it. We are going to have some reports and some analysis so we can monitor whether we are being successful. Operational control under the legislation includes systematic surveillance of the international land and maritime borders through the use of personnel and technology such as unmanned aerial vehicles, ground-based sensors, satellites, radar, and cameras. Those are all going to be part of any effective system. We know that. We are not opposed to that. But don't let anybody tell you only those things will make the system work. They will not.

Mr. SESSIONS. Thank you, Mr. President. Physical infrastructure enhancements to prevent illegal entry of aliens and to facilitate access to international land and maritime borders by the Customs and Border Protection Agency are important. The bill further defines operational control as the prevention of unlawful entry into the United States, including entry by terrorists, unlawful aliens, instruments of terrorism, narcotics, and contraband. Second, the bill extends the current requirement for border fencing in San Diego, requiring that fencing be installed by 2008 through several urban areas. It mentions those. All the fencing in the bill is focused on the heavily trafficked areas on the southwest border. None of the fencing extends further than 15 miles outside high trafficking areas. Let me just say this: The system that we have today is failing so badly that last year we apprehended 1.1 million people entering into this country illegally. Tell me that is a functional system. By sending in the National Guard, by building these barriers, by adding to the number of agents, each one of those steps will help send a message throughout the world that we are not wide open, that our borders are going to be enforced. You should not come illegally. You should wait in line and come legally. Those are facts that I think all of us need to consider as we evaluate this legislation. Mr. President, I see the Democratic leader here, Senator Reid. I know his day is busy. I will be pleased to yield the floor and reserve the remainder of my time.

Mr. SESSIONS. Mr. President, I thank the Democrat leader and his citing of that report. I look forward to reading it. The reason that is important, this so-called comprehensive reform bill that actually passed the Senate, with a substantial number of no votes, is nothing more than an extension of the current failed system. It is not a comprehensive reform of immigration at all. We had a hearing last week at my request. We had some of the best minds in America on immigration. They said our present system is completely ineffectual. I think that is fair way to summarize what they said. They all spoke favorably of the Canadian plan, the Australian plan, and other plans being developed by developing nations around the world. It makes every sense that we do that. I am looking forward to analyzing that report. I am confident it will be further evidence that business as usual in immigration must end. Next year we need to come forward--and I will commit to working with my colleagues--and have a real dialog on what immigration should be for America. The seminal expert in America, Professor George Borjas, himself an immigrant, at the John F. Kennedy School at Harvard, has written the most authoritative and best-known book on immigration, ``Heaven's Door.'' He just testified at our hearing last week. He has said in his book and in his testimony, fundamentally, America needs to ask this question: Are you crafting an immigration policy that serves your national interests? If that is what we are doing, then he has some ideas that help us do that. But that is not what we have been doing. We have never had a discussion of the Canadian plan that gives preference to people with education. We have never discussed the Canadian plan that gives preference to people who already speak English. We have not discussed the system in Canada that gives preferences to people who bring business investment or have skills that are important in the workplace. Isn't that what a rational nation would do? This bill that passed the Senate is fatally flawed. We need to start over completely. I believe, that report will validate the things I just mentioned. Of course, let me say to all of our colleagues, no one suggests that building a fence is the end to the problem. Mr. T.J. Bonner, head of the Border Patrol Agents Association, testified at our committee. He said there are two things we need to do: We need to strengthen the border and eliminate the magnet of the workplace by cracking down on illegal hiring in the workplace. The Senator from Nevada, the Democratic leader, is correct. We have seen some reduction in the numbers being apprehended. I hope that indicates we are seeing a reduction in those attempting to enter the country. I believe it does. What should that tell us? That should tell us that if we continue to take strong steps, we can end this worldwide perception that our border is wide open, that anyone can come through our country legally or illegally and end that whole perception and shift toward that magic tipping point where people realize they are not going to be successful getting in our country illegally, and they are not going to be able to get a job once they get here. We can do both of those. The American people need to know, our Members of Congress need to know, if we continue the course we are on and actually follow through on the things we have discussed, we can create a lawful border. It is not impossible. Don't have anyone say that is impossible. It is part of the steps. To say we should not do border fencing because that is just one step and that is not the whole thing is silly. If we have to take 20 steps to get to the goal, why say it is worthless to take 2 of those steps? Certainly we ought to take the steps we know we can do right now. The American people are a bit cynical about what we are doing. The leader asks, Why do we want to bring it up now? We are about to finish the session, and we still haven't gotten it done. I don't want to go home without having done some things to improve the legal system of our border. I don't think most Members do. We have to get it done. We should have already had it done. I agree with that. I was sharing some thoughts before the minority leader, the Democratic leader arrived, about what is in this bill, how it actually is effective and will actually work and will actually reduce the immigration in our country from illegal sources by a significant amount. I was able to travel with Senator Specter, chairman of the Judiciary Committee, to South America recently. We were in a number of countries. We saw a report on polling data in Nicaragua that said 60 percent of the people of Nicaragua would come to the United States if they could. I mentioned that to the State Department personnel in Peru. They told me that 70 percent of the people in Peru would come to the United States if they could, according to a recently published poll. This is a wonderful place. America is a great country. All over the world, millions and millions and millions would like to come here. We cannot accept everyone that would like to come. I wish we could, but it is just not possible. We need to set standards and appropriate behaviors to create a system that is lawful, No. 1; also, a system that lets people come in on the basis of merit and what is in the best interests of our country. The House bill we are now considering has some important and valuable things in it. It calls for interlocking surveillance camera systems that must be installed by May of next year. They are going to keep waiting. How much longer can this go on? We need Homeland Security to get moving. It says all of the fencing must be installed by May of 2008. That is a good step. That says we are going to get serious and we are going to do something. Laredo-Brownsville would be given until December of 2008. The bill provides the Secretary of Homeland Security the flexibility to substitute fencing with other surveillance and barrier tools if the topography of a specific area has an elevation or hillside of greater than 10 percent. I ask what the balance is on both sides.

Mr. SESSIONS. Mr. President, how much time do I have remaining?

Mr. SESSIONS. Mr. President, I am convinced that physical barriers at our borders--fencing in particular--are an important and central cost- effective solution to border security. My colleague, the Democratic leader, has used a figure of $7 billion. We think that is greatly exaggerated. We believe it can be done for much less than that, although that money has been floated. A private contractor has indicated he could do it for about $1.8 billion, and that is the money we put into the bill. And with the help of the National Guard, I think we ought to be able to build fencing at a rate far less than that. I note that this is a one-time expenditure. This expenditure is going to reduce the 1 million apprehensions a year dramatically. A barrier like this will enhance the ability of each and every single Border Patrol officer to do his or her job. It will enable them to be far more effective. It is going to enable us to not have to hire nearly as many people. It will send a signal to the world that our border is not open. That means we will need fewer bed spaces. We are going to be moving toward reaching that tipping point where the border is perceived as being closed, where the legal system is being honored in America again, and where we can make a difference in this whole system. Manpower alone cannot work. Are they going to have to stand every 500 yards on the border and try to catch people? When you apprehend somebody, you have to pay to take them to a facility and then take them back across the border; or if there is some distant country, pay for a plane ticket and send them back home and put them in a detention place until that occurs. We think we need a catch-and-release program. But even if we do this, it is still very costly. A fence is going to save us billions of dollars over the years. It is going to allow us to be effective, with fewer Border Patrol agents. It is going to help us reach that tipping point where we will need far fewer bed spaces and far fewer planes to charter to take people back home. We will have far fewer efforts to move people back across the border, at a great savings to this country. This is a cost-savings bill. It is a statement bill, I submit. When you count the costs of salaries and the time and insurance for our Border Patrol, the risk at which they are placed, a fence is going to be a tremendous asset to them. We will have a roadway so they can move down in their vehicles along the border to pick up people who have entered. The word is going to get out that it is not easy to do that anymore. There are a lot of other things we need to do. We need to clarify the current law as it exists. Along with my staff person, Cindy Hayden, a lawyer on the Judiciary Committee, my chief counsel, we wrote a Law Review article for the Stanford Law Review. We talked about the authority of the local law enforcement officers. They have authority in most instances, but it is blurred and confused, and as a result most State and local law enforcement officers are afraid to do anything. We need legislation that will fix that. We need the workplace enforcement. All of these are steps that need to be taken so that people can't come into the workplace fraudulently and get a job as they are today. Those things can be done, but a critical part of this entire process is securing the border first. The American people expect us to do that. This legislation gives us that capacity. We can make that difference, and the result will be that we are going to see further improvements in the number of apprehensions. Then, next year we need a good dialog. As Senator Harry Reid said, we need to take Professor Borjas's book, ``Heaven's Door,'' and take other testimony that we have seen and reviewed and build on that and develop a comprehensive program that we can be proud of, that will allow talented immigrants to come here, people whom we know scientifically from studies and analyses will be successful in America, who will pay more in taxes than they take out. And the numbers are really scary. Large numbers of people coming in today are high school dropouts, do not have a high school diploma. According to the National Academy of Sciences, a person coming into our country without a high school diploma, over a lifetime, will cost the U.S. Treasury almost $90,000. Think about that. They will have a low-wage job. They will not be paying income tax. They will be receiving other benefits. That does not include extra schools and highways that will have to be built. It only includes what they will be getting in terms of earned-income tax credit or Food Stamps and other benefits such as medical and the like. We are moving now. The American people's voices are beginning to be heard. But I think we are going to have to study this issue. If the American people will stay in tune, if they will insist on the highest and best values, including law and decency and generosity and a positive view of immigration, we will have all those values at play in our decisionmaking process. We can come up with legislation next year that actually could do more good than most people realize. I can't tell you how exited I am about it. But it is absolutely essential that we take steps today to gain credit with the American people; to have them understand that we are listening, that we are going to make the legal system work. And then we can enter into a dialog with them next year to develop, as Professor Borjas's book says, policies that serve the legitimate interests of our Nation. Why shouldn't we do that? Other countries are doing that. Are we saying that Canada is not an advanced and humane nation? Are we saying that the policies that New Zealand adopted are not humane and decent and effective? Look at it. We will find that they are. In fact, they allow quite a number of people to come into their country every year, but they try to allow those to come who have the best chance of being the most successful. It has exciting possibilities for us. It is important that the misguided legislation that has come through this Senate has now ground to a halt, that the House has flatly rejected it, and that we in our own body are reevaluating it--I think rightly--and we will be at a point where we can start over, start afresh and develop a comprehensive plan. Let's get credibility with the American people. Let's make this border a lawful border again, and we will see a reduction in crime. We will see increasing economic and commercial development in the areas where enforcement becomes a reality. We can tell the world that you have an opportunity to come to our country, but you are going to have to meet standards. You will have to apply, and you will be objectively and fairly evaluated. And if you meet those criteria, you will rise up in the list. If you do not, you may not be able to get in. We are sorry, because everybody cannot come in here. We wish it were different, but it is just so. We cannot accept more and more and more. We have to decide what the right number is, what skills and assets they bring that we want for our country, and make a selection process on that basis. It is really exciting, that possibility. In our situation today--I say to my colleagues, I would like to share this one thought with you--and I am sure the report that Senator Reid mentioned probably has some discussion of it because it is a defining event--only 20 percent of the green cards--that is the card that gives one permanent residence in the United States--only 20 percent of those are given out based on the skills of the applicant. Think about that. How can that be in our national interest? The experts we have heard say it is not in our national interest. Canada and other nations have analyzed this. They have decided that is not where they want to go. So they are trying to get to 60, to 70 percent based on skills. Yes, we will always have those subject to persecution around the world, humanitarian cases, who we will allow in our country. But the number and the way we are doing it now is not a sensible way to proceed. Mr. President, I yield the floor and reserve the remainder of my time.

Mr. SESSIONS. Mr. President, I notice that none of my colleagues are here. Senator Reid, I am pleased to say, indicates he will be supporting moving forward to the bill and cloture. I will take time, as we are heading up to the hour to vote, to share a few additional thoughts. The only way we are going to get an authorization of the fencing is to pass this amendment. The authorization for border barriers I offered as an amendment, which was adopted as part of the comprehensive so- called immigration bill, will not become law because that bill will not become law. This is the way we have now to do it. The House has passed a bill that is thoughtful, that makes sure we are not playing a shell game with the American voters but that we actually create a mechanism to ensure that the fencing gets built on a timetable. It includes a number of other things, such as technology and sensors and the like. The second aspect of the legislation is very, very important. We voted in this body 93 to 3--and the majority leader and the Democratic leader both made reference to it--to fund it at $1.8 billion. That was a commitment we made. We said we were for that. This budget that we passed has $20 billion set aside for emergency funding as part of our budgetary expectations for this year. How much of that will go to homeland security? We have to be careful to watch. And even though we authorized these barriers at the border, which are going to make a huge, huge difference in reducing illegal entry into America--it is going to be so positive--but if we do not fund it so we can actually build it, it cannot be built. That requires an appropriations. So I am getting worried about that. I am hearing some things--that the $1.8 billion we passed with such an overwhelming vote may not be funded. So isn't that the shell game we are talking about now? Isn't that the deal? We thought we had done it on the Defense bill. It would be built through the National Guard who is already on the border. And the money would go to them to supervise, to contract out, or utilize their own personnel to construct this fencing. That is what we thought we had done. But as often happens around here, subtle things happen. You think you have something in your hand and like a will-o'-the-wisp it just disappears. I hate to use the words ``shell game'' because it is not always planned out that way, but the effect can be the same. First you think you have it, and then it disappears. You think it is under that shell, you think you have it, and it is not there. So I am going to have to tell our leadership on both sides of the aisle I am pleased to see we have a commitment to building the fences. We voted twice now, and the House has overwhelmingly voted for this. But we need to make sure we don't play a shell game where we don't have the money at the end to build it because somebody wants to spend it on a pet project they have. This is a matter of national interest. It is a matter of national security. It is a matter we cannot fumble the ball on. It is a matter we are committed to by our previous votes. So let's make sure we do it. And setting priorities is what we do. That is what we are paid to do. We cannot do everything. So we will have a bit of a test as the session winds down to see if the appropriations process--the actual appropriating of the money to do the things that are needed to be done--is carried out and the funding is there and the barriers are built. Again, I repeat, this would be a one-time expenditure. I believe the numbers we are hearing are too high. We felt like $1.7 billion, $1.8 billion would do the 370 miles of fencing, including 500 miles of vehicle barriers. There is enough money to fund that. But if we are going to have to have that, we can't have no funding, a third of the funding, or a half of the funding or we are not going to be able to do this job. And if it turns out we are wrong and the cost is higher than we expected, we are not going to come close to doing what we are telling the American people we intend to do. So we will have to watch that. I will just share, in conclusion, my thoughts about the nature of the American Republic of which we are a part. It is a good and decent nation. We have a positive view of immigration. We have been a nation of immigrants from our founding. We believe in immigration. But we are also a nation of laws. I was a Federal prosecutor for 15 years, and it breaks my heart to see the Federal United States law be made a mockery along the border of our country, that without fencing people are driving by, and not even stopping when the Border Patrol attempts to detain them. We had a hearing yesterday on crime in America. We had the Director of the Bureau of Prisons. He told us that in the Federal prison penitentiaries 27 percent of the people detained are not American citizens. Can you imagine that--27 percent? Now, I am absolutely convinced that overwhelmingly the people who come to our country are law-abiding; even if they come to our country illegally, they are law-abiding, other than their entry. But I have to tell you, if I were in big trouble somewhere in some foreign country, and they were trying to arrest me in my hometown, and the chief of police knows my name, and I am facing a big, serious crime, why would I not want to scoot across the border and go to the United States where nobody would know me? I think we are picking up an excessive number of people who may even be fleeing prosecution in their towns or people who have come here to set up drug distribution networks and things of that nature. So somehow we are picking up a larger number of the criminal element than we ever have. When I asked Mr. Lappin about the prison system and the fact that he said 27 percent of the people in the Federal penitentiaries are noncitizens, I asked him: Does that include those we detain at the border who are being held waiting to be deported? He said, No, it does not even include those. So this Nation, in our own interest, has every right--indeed, we have a duty to our people--to make sure our borders are not wide open, terrorists do not come here, drug dealers do not come here, people in trouble for sexual offenses and child pornography and those kinds of things, and child abuse, who flee their own countries, do not run across the border to safety in the United States, where they are never apprehended and live here. So this is all part of it. If we are coming through with the right funding, we will be successful in taking the historic step to creating a lawfulness in this country. Mr. President, I yield the floor and suggest the absence of a quorum.

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