Sheldon Whitehouse

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I have an amendment I have filed to the Defense authorization bill, amendment No. 5369. I would like a take a few minutes to discuss it here today. I hope very much that this amendment can be called up. Indeed, I hope the entire intelligence authorization bill could be called up as a part of the compromise on the Defense authorization. Chairman Rockefeller on the Intelligence Committee has done exemplary work to make sure we have a good, intense authorization bill. I hope very much that my colleagues on the other side of the aisle will allow that to be called forward and voted on. This particular amendment I want to talk about now, although it is small, is very important, and in my view it should be noncontroversial. This amendment is cosponsored by Senators Feinstein, Rockefeller, Hagel, Kennedy, Feingold, Wyden, Cardin, and Dodd. I thank all of those Senators for their cosponsorship. The amendment is simple. It holds the United States only to standards we already require of our own military, only to standards we ourselves demand of other nations. Put simply, the amendment would require America's intelligence agencies to notify the International Committee of the Red Cross that an individual has been detained and to provide the ICRC with access to that individual in a manner consistent with the practices of the U.S. military. These terms of access are very reasonable, and confidentiality by the ICRC is maintained. I said this was an important amendment. Why is this important? Well, President Clinton said it well recently: America's true strength comes from the power of our example, not the example of our power. If you really believe in our country and her virtue and in her promise, you understand this, and you understand what grievous and lasting harm America has suffered from this administration's embrace of torture and from this administration's embrace of torture's handmaiden: secret detention. If you go down the corridors of history and you survey the evil practices of tyrant regimes, you find one of their most notorious methods of coercion and subjugation is holding prisoners incommunicado. From the oubliettes of Bourbon, France, to Calcutta's Black Hole; from the Gestapo's secret prisons to the Soviet gulags; from medieval dungeons to the bamboo cages of the Killing Fields, secret and anonymous imprisonment has always been the hallmark of the despot. Now the Bush administration has stamped America with this shameful mark. America long opposed disappearances and secret detentions around the world as incompatible with our principles of liberty and justice. Just this past March, in its 2007 Annual Human Rights Report, the U.S. Department of State criticized the Governments of North Korea, Burma, and Sri Lanka for engaging in ``disappearances.'' Yet, on December 8, 2005, the Bush administration acknowledged that the ICRC did not have access to detainees--to all detainees--held outside of Guantanamo. President Bush confirmed as much nearly 9 months later when he stated publicly that it had been ``necessary'' to move certain detainees to an ``environment where they can be held secretly.'' This amendment should be unremarkable given the historic role of the ICRC. The ICRC has been visiting detainees in connection with armed conflict since 1915. Last year, the ICRC visited 518,000 detainees in 77 countries. This organization visits prisoners, in its words, ``to ensure respect for their life, dignity and fundamental right to judicial guarantees.'' All these notions are part of the bedrock, as we know, of our own Constitution. A seminal text on this subject, ``The Treatment of Prisoners Under International Law,'' describes the prohibition of incommunicado detention as among the most central of all international prisoner safeguards. The ICRC holds this unique role in part because of the way it conducts its business. After a visit, the ICRC reports its findings confidentially to the detaining government. The ICRC has said this confidentiality is fundamental to its success, noting that it ``makes it easier for the ICRC and the detaining authorities to achieve concrete progress in detention places.'' Because of the ICRC's approach, this amendment carefully safeguards our national security. There is even flexibility for what are called ``imperative considerations of military necessity.'' Notably, the ICRC has played an important role for U.S. troops detained by other governments. The American Red Cross reports that the ICRC visited 55 U.S. prisoners of war in Iraq during the first gulf war and three U.S. servicemembers in a Serbian prison during the Kosovo conflict. In World War II, in the places where the ICRC could operate, it provided badly need assistance to U.S. soldiers. For example, in Shanghai, one of the few areas the Japanese permitted ICRC access to detainees, the ICRC delegate sent the U.S. prisoners of war food and clothing. PFC Floyd H. Comfort, a part of the Wake Island Marine garrison said: If it had not been for the International Red Cross, I guess we all would have starved to death. Respected members of our military family recognize that this amendment would strengthen our ability to advocate for appropriate treatment of Americans detained overseas. I would like to place in the Record a letter from 38 retired military leaders, distinguished generals and admirals who have concluded this amendment is a ``critical measure to ensure continuing respect for the norm that [ICRC] access must be provided to all captives in wartime.'' I ask unanimous consent that the letter be printed in the Record.

Mr. WHITEHOUSE. This letter comes from battlefield warriors and intelligence officers who participated in every major American conflict from World War II until today. One of them, indeed, only 2\1/2\ years ago, was a member of our Joint Chiefs of Staff. These flag officers go on to say that ``when we violate this norm ourselves, by holding prisoners in secret--`off the books'--denying that they are in our custody and refusing to permit Red Cross access to them to monitor their treatment, we dangerously undermine our ability to demand that our enemies adhere to it, now and in future wars.'' These military leaders also emphasize that the U.S. military's practices for ICRC notification and access to prisoners ``are tailored to accommodate the demands of battlefield intelligence gathering and detention and do not interfere with prisoner interrogations.'' The ill-advised course that leads one down to darkness was famously described by Winston Churchill. He said: It is a fine broad stairway at the beginning, but after a bit, the carpet ends. A little further on there are only flagstones, and a little farther on still these break beneath your feet. This is the dark corridor down which a misguided administration has led America. The sooner we turn back, the stronger and safer America will be. Remember also the Gospel according to Matthew, chapter 25, verses 36 to 40: I was naked and you clothed me. I was sick and you visited me. I was in prison and you came to me. This applies even to those who are, to quote from Matthew again, ``the least of our brethren'' because ultimately it is not about who they are, it is about who we are. And who are we? We are still that city on a hill. We are still a beacon to other nations. The light of our faith in human freedom still brightens the world. And as we trust in God, let's also trust in that faith and freedom, in that faith in America. Let's step back from the dark side, away from the grim tactics of tyrant regimes and into the light of our faith in America. I hope we can bring up this amendment. I can't imagine why anybody in this room would object. Yet here we are. I yield the floor and suggest the absence of a quorum.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. I ask unanimous consent that the order for the quorum call be rescinded.

Mr. WHITEHOUSE. Mr. President, today the largest daily newspaper in my home State of Rhode Island, the Providence Journal, is losing three extraordinary journalists. Columnists M. Charles Bakst, better known as Charlie; reporter Scott MacKay; and Mark Arsenault have covered politics in Rhode Island and around the country for a combined total of about 70 years, and they are retiring from the paper as of today. There is a larger story about what is happening to America's newspapers, but my purpose is not to talk about that but about them. All of them are gifted writers, and all have brought to the Journal sharp eyes for detail, long memories, and distinctive voices. They will be sorely missed. Scott is a particular friend, and I am sorry I will no longer have the pleasure of reading Scott's colorful political takes on the State we both love. I hope he will return to the Providence Newspaper Guild ``Follies'' to continue his traditional role emceeing that evening of alleged music, wit, and humor. I wish well to Mark Arsenault, whose talent supports a bright future in whatever new endeavors he chooses to pursue. But the remainder of my remarks will be about Charlie Bakst. If you are from Rhode Island and involved in politics, you know Charlie Bakst. You see him in the statehouse, at city hall. You see him at fundraisers and roasts and meatball dinners and clambakes, and you see him at lunch at Angelo's on Federal hill. Everywhere there is politics--and in Rhode Island, that is everywhere--Charlie is there, soaking in the scene, talking to people, and commenting on the food. Everything is grist for what Charlie is pleased to call his ``excellent columns.'' Charlie's memory for history and for detail is legendary, as is his miraculous success at landing interviews that are either totally forbidden or extraordinarily difficult to get. He has jumped into limousines and lain in wait by backdoors. He has talked with United States Presidents, past and future. He has questioned Senators, Governors, party leaders, political operatives, even world leaders. If you have ever been involved in politics in Rhode Island, chances are you have been confronted by Charlie Bakst's red suspenders, unkempt hair, and ever-present tape recorder, and chances are that afterwards, you found something in what he wrote to be annoyed about. But in the end, that is the way we in politics are supposed to feel. As the saying goes: If a politician doesn't feel a little twinge of anxiety when he hears that newspaper thump on the front porch in the morning, the paper is not doing its job. Charlie always did his job. Journalism is in Charlie's blood. At summer camp in Hampstead, NH, in the 1950s, he announced baseball scores at the camp's daily flags ceremonies. ``In retrospect,'' he wrote, ``an early dangerous sign of: Journalist Ahead.'' At Brown, he became editor in chief of the Brown Daily Herald. He went on to earn his masters from the Columbia Graduate School of Journalism and later returned to Rhode Island to join the Providence Journal, eventually becoming statehouse bureau chief and political columnist. Politics, too, was a lifelong passion. In another formative summer camp experience, he listened to radio broadcasts of the 1956 Democratic Convention. I will confess that I was probably not 1 year old then and not listening very closely. At the time, then-Senator John F. Kennedy narrowly missed winning his party's Vice Presidential nomination. ``Believe it or not, that helped hook me on politics,'' Charlie wrote decades later. Well, it is not that difficult to believe. Charlie's writing betrays a sense of wonder at the pageantry of politics and a fierce belief in government's obligation to the people that it serves. Charlie told it like he saw it, and when he saw a public servant abusing the public trust, he said so. ``I must say I've never lacked for copy,'' Charlie told the New York Times in 2001. His columns have ripped into public figures for corruption, dishonesty, and for incompetence. In a column written as New Orleans staggered in the violent wake of Hurricane Katrina, his outrage is visceral: America has become a laughingstock. To think that people could suffer here for days on rooftops or terraces or in a sports arena or convention center without rudimentary help like food or water, amid lawlessness and stench, surrounded by death. He ended with an invocation of Jimmy Carter: Wouldn't it be nice to have a government as good and decent as the American people? This is Charlie Bakst's dream for America and his dream for our Ocean State, and his columns have always prodded us toward that dream. He is particularly outspoken when he sees injustice and oppression. He sought out leaders in the civil rights movement, interviewing Representative John Lewis and Cesar Chavez, among others. He found unsung Rhode Island heroes, who worked on behalf of the homeless or the poor or the disadvantaged, and told their stories. He showed special courage in his unwavering advocacy for the rights of gays and lesbians, particularly the long struggle for equal marriage, even when some readers took vocal offense. Charlie is also obsessed with baseball and with his beloved Red Sox in particular. The team was a family affair in the Bakst household. Charlie writes of many trips to Fenway Park with his late father Lester and his brother Arthur. His first game at Fenway--at age 8--happened to be on April 30, 1952, the last game Ted Williams played before he shipped out to Korea. Ted Williams was a particular hero, and years after that first game, Charlie's colleagues at the Journal gave him, as a 50th birthday gift, a lifetime membership to the Ted Williams Museum in St. Petersburg, FL. Charlie visited the museum and immediately collared his tour guide to suggest corrections to the exhibit. Charlie followed baseball all over the country, and maintained a love affair with food, from buffet table fare at local fundraisers to historic restaurants such as Angelo's, where his personal bottle of olive oil, stashed in the kitchen, has ``BAKST'' written across the top in black ink. These interests--baseball and food--came together in columns disclosing that at Safeco Field, home of the Seattle Mariners, you can eat everything from sushi and pad thai to chowder and deep-fried mushrooms, not to mention a half-pound Home Run Dog just outside the ballpark. At Petco Park, home of the San Diego Padres, Charlie reported on shrimp avocado salad, barbequed ribs, fish tacos, garlic fries, veggie dogs, Oreo cookie cheesecake, and cappuccino. I was glad when Charlie was able to stop by one of my regular community dinners in East Providence last year. Our M&M cookies made it into his Sunday column. Finally, we have seen Charlie's deep and abiding love for his family: his wife Elizabeth, and his daughters Maggie, Diane, and their families. I hope in his retirement he will get to see more of them, and to spend more time with Diane and her family in Italy, as he once wrote he would like to do. But no matter what he chooses to do next, I hope Rhode Island will find a way not to lose Charlie's unique voice, his rich memory, after, I believe, 36 years of journalism in Rhode Island, and the impassioned commitment that he brought to his profession. Of his friend, WJAR investigative reporter Jim Taricani, Charlie once wrote this: [B]eing a journalist is more than a job. It is a burden, a pleasure, and an honor. Well, Charlie, working with you for the past 20 years has been a burden, a pleasure, and an honor. I look forward to talking with you for many years to come, and I wish you and Mark and Scott well in your retirement. Mr. President, I yield the floor.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. I ask unanimous consent to speak for 10 minutes as in morning business.

Mr. WHITEHOUSE. Let me begin by saying, as we leave for our August recess very shortly, what a pleasure it has been for me to serve with the distinguished Senator from Utah on the Judiciary Committee during these first months of my first term in this body. I would respond to what he has said by suggesting that if he and his colleagues would actually let us lead, we would be able to solve a lot of the problems he discussed and that were indicated on those graphs. However, instead of letting us lead, they have embarked on a strategy of creating gridlock in this institution with--I think at this point we are at 92 or more filibusters--which is the world record in the history of this country--and climbing. I think what has happened to this body is my colleagues on the other side have made the decision that the record of George Bush is hopeless, the Republican message is shot, and their only salvation is to call down a pox on both our Houses and try to disable this institution, try to prevent us from doing essentially anything. It also has the added benefit of allowing the Executive more leeway, and it confers more power on George Bush, which I think is a mistake, given the way the record has shown his judgments have worked out. For instance, take a look at what has happened in the Bush economy every day and getting worse and worse. Since George Bush and Dick Cheney took office in 2001, wages in America have remained stagnant, as the very distinguished Senator from Ohio knows very well. Wages in America remain stagnant, oil and gas prices have risen sharply, and troubles in the housing market have made it harder and harder for families to stay in their homes. One would not have thought very long ago that America was a country in which tens of thousands of Americans would be thrown out of their own homes, but there we are. Even those well off enough to own stock have seen the consequences of the Bush economy. In the Clinton years, the Dow Jones industrial average climbed 129 percent. In the Bush years, it has climbed exactly 0.7 percent. I ask my colleagues on the other side of the aisle whether they think their investor friends would prefer 129 percent capital gains and then paying a fair tax on those capital gains or whether they would prefer having big fights about what the capital gains tax rate is, but nobody makes any money. While American families and American workers struggle in the Bush economy, there is one special, favored industry that is laughing all the way to the bank. Eight years of two oilmen in the White House has brought over $4-a-gallon gasoline for American consumers and absolutely grotesque profits for the biggest oil companies. Yesterday, once again, the largest of these international giants-- ExxonMobil--announced recordbreaking profits. ExxonMobil's second- quarter profits were the highest in the company's history. They were the highest in the history of the entire oil industry. In fact, Exxon's $11.7 billion profits for this last quarter were the highest corporate profits in the history of the United States. These profits, indeed, are the highest in the history of the universe as we know it. Think about that: $11.7 billion in just 3 months. The U.S. Department of Transportation estimates that there are 250 million passenger vehicles in the United States. Exxon's $11.7 billion second-quarter profits amount to a quarterly tax of $47 on every car and truck in the country. That is just for one quarter. If you have ever wondered where the $60 or the $80 or even the $100 that it might cost to fill your tank goes, take a look at this. Gas prices are definitely going up; there is no doubt about that. We all experience the pain at the pump. But compared to how gas prices are going up, look at what is happening to oil company profits. As gas prices have risen, oil company profits have soared. If Exxon continues to reap profits at this level, in 2008 alone, you will pay for every car a $188 oil profits fee to ExxonMobil per car--$188 on every car in America--for the profit. That is not counting the hundreds of billions of dollars raked in by the four other major international oil companies doing business in our country. We are facing a true energy crisis. Instead of working with us to solve it, our colleagues on the other side of the aisle continue to fight for oil company profits. Drilling off of our pristine coasts--and I come from the ocean State of Rhode Island--won't produce a drop of oil for a decade and won't significantly lower gas prices even then. These facts have no affect on our colleagues. Make no mistake about it, more drilling means higher profits for Exxon, Shell, BP, and especially for Dick Cheney's former employer, Halliburton, which provides drilling products and services. Exxon is committed to an oil economy that has no future for this country. They earned $11.7 billion in profits in the last 3 months, but in the 4 years between 2003 and 2007, Exxon spent just $20 million on research and development of alternative and renewable transportation fuel technologies. That is $20 million in 4 years, which is $5 million a year. That $5 million a year is $1.25 million a quarter. If you compare $1.25 million a quarter to $11.7 billion in profits, what you find out is that for every $10,000 in profit ExxonMobil makes, it spends $1 on alternative fuels. I am sure that in Ohio the Presiding Officer is seeing the same advertisements we are seeing in Rhode Island--wonderful Exxon ads with scientists and molecules, telling us how they are investing in the future. But it is $1 for every $10,000 they put in their pockets. A recent Wall Street Journal article reported that the big oil companies spent $52.5 million on advertisements to burnish their images in the first quarter of the year. That is an annualized rate of $200 million in ads. Of course, many of these environmental ads say: We are green now, just watch us. Well, if you assume that of that $52.5 million, a quarter of it was Exxon, that is $12.5 million. If you assume that just a quarter of that 12.5 was spent on green ads and the rest on other stuff, that is $3 million. That means they spend three times as much advertising their green research as they do actually doing their green research. It is the biggest sham in the world. I hope when Americans see these ads in magazines and elsewhere they know they are being had. It is $1 in research, $3 in advertising about it, and $10,000 in profits. That is the ratio. That is not a ratio anybody should be very proud of. If only Exxon and the other oil giants would devote some of their advertising budget to R&D, then we might be better off. We don't need sham solutions. We need results. Yesterday, I signed on to a letter authored by our assistant majority leader, Senator Durbin of Illinois, to request of President Bush to release about 10 percent--or 70 million barrels--from the Strategic Petroleum Reserve. That sale would immediately lower gas prices and generate over $8 billion, which is money that could be used to invest in alternative sources of energy for real--not the phony show ExxonMobil is putting on--so that we can finally move away from our oil-addicted economy. But so far, no action. Indeed, yesterday, we tried to pass a Defense authorization bill to support our troops in the field, in harm's way. The Republicans voted against the bill, abandoning our troops for big oil. Big oil is making big money, and that is the Republicans' priority. I urge President Bush to end the rhetoric, put the troops first, get off of big oil's wagon, and let's get together to solve this problem for real. I thank the chair and yield the floor.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I rise to speak about a matter that I very much regret being here to discuss, but events have driven me to this point and, with me, the chairman of the Environment and Public Works Committee, Mrs. Boxer, Senator Klobuchar, and others as well. For most of its nearly four-decade history, Americans could look to the Environmental Protection Agency for independent leadership, grounded in science and the rule of law. It was an agency whose clear mission was to protect our environment and health. At its very founding, EPA's first Administrator, William Ruckelshaus, stated unequivocally: EPA is an independent agency. It has no obligation to promote agriculture or commerce; only the critical obligation to protect and enhance the environment. During the tenure of Administrator Stephen Johnson, we have seen that clear mission darkened by the shadowy handiwork of the Bush White House, trampling on science, ignoring the facts, flouting the law, defying Congress and the courts, while kneeling before industry polluters, and all for rank and venal purposes. Under Administrator Johnson, EPA is an agency in distress, in dishonor, and in bad hands. Events last week have shed new light on the extent of the damage done to this great agency, but the evidence of Mr. Johnson's dismal record has been growing for many months. The charges are serious and fall in three separate categories: his repeated decisions putting the interests of corporate polluters before science and the law, even when it puts at risk our environment and the health of American people; his deliberate actions to degrade the procedures and institutional safeguards that sustain the agency; and his apparent dishonesty to us in testimony before Congress. The particulars are these. Count 1: On pollution from ozone, the EPA, under Administrator Johnson, departed from the consistent recommendations of agency scientists, public health officials, and the agency's own scientific advisory committees and instead set an ozone standard that favored polluters. The standard he set was inadequate to protect the public, especially children and the elderly, from the harmful effects of ozone pollution, from asthma and lung disease. Indeed, it was so inadequate that EPA's own Clean Air Scientific Advisory Committee took the unique step of writing to the Administrator to state that they ``do not endorse the new primary ozone standard as being sufficiently protective of the public health'' and that the EPA's decision ``fail[ed] to satisfy the explicit stipulations of the Clean Air Act that you ensure an adequate margin of safety for all individuals, including sensitive populations.'' Setting this inadequate ozone standard against the evidence was a dereliction of Administrator Johnson's duty to the Agency he leads and of EPA's duty to protect the health of the American people. Count 2: On pollution from lead, Administrator Johnson has proposed a standard that fails to sufficiently strengthen the regulation aimed at limiting exposure to lead pollution. Lead has poisoned tens of thousands of children in Rhode Island and many more all over the country. Both an independent scientific review panel and EPA's own scientific staff recommended a lead standard of no greater than 0.2 micrograms per cubic meter. Yet Administrator Johnson proposed a range of 0.1 up to .05 micrograms--2\1/2\ times. Mr. Johnson further diluted even that lax standard by using what public health advocates have labeled ``statistical trickery''-- statistical trickery--allowing polluters a longer period of time over which to average the amount of lead they discharge into the air. Again, by not adequately protecting children from lead, Administrator Johnson was derelict in his duty to his Agency. Count 3: On pollution from soot, technically called ``particulate matter,'' Administrator Johnson bowed to pressure from industry and failed to strengthen a decade-old standard limiting particulate matter pollution from smokestacks. Again, the Agency's own scientific advisory committees had called for a tougher standard to protect public health. Again, Administrator Johnson yielded to polluters. Again, Administrator Johnson failed in his duty to the Agency he leads. Count 4: On vehicle tailpipe emissions, Administrator Johnson denied a waiver that would have allowed the State of California, my State of Rhode Island, and many other States to enact strict restrictions on global warming pollution from automobiles. EPA staff indicated in briefing materials that ``we don't believe there are any good arguments against granting the waiver.'' EPA lawyers cautioned the Administrator that all of the arguments against granting the waiver were ``likely to lose in court.'' Yet Administrator Johnson issued an unprecedented denial of that waiver. I will separately discuss my grave concerns about the Administrator's testimony on this matter. I believe he has lied to us. But for this purpose now, looking only at the substantive outcome, in ignoring the law, the dictates of science, the recommendations of his regulatory and legal staff, the role of Congress, the wishes of the States, and the welfare of the American people, Administrator Johnson failed again in his duty to the Agency he leads. Count 5: On global warming pollution, in defiance of the Supreme Court's decision in Massachusetts v. EPA, Administrator Johnson has failed to take action after the Court's ruling that EPA has the authority, under the Clean Air Act, to regulate greenhouse gas emissions that pollute our air and warm our planet. It is now nearly 18 months since the Court's decision, and the EPA has shown no indication it will act before President Bush leaves office. In ignoring a ruling of this Nation's highest Court empowering him to act on a matter important to the public health of Americans, Administrator Johnson again failed in his duty to the Agency he leads. But it was not enough for Administrator Johnson to rule for the polluters on pollutant after pollutant. Administrator Johnson has also systematically dismantled institutional safeguards and processes that protect his Agency's integrity and guide its mission. Jonathan Cannon served at EPA during the Reagan, George H.W. Bush, and Clinton administrations. He warns of ``extreme friction within the agency and institutional damage . . . demoralizing the legal staff, and . . . further separating staff from the political leadership at the agency.'' We saw similar sabotage of institutional safeguards in the Gonzales Department of Justice, and this institutional damage raises four further charges, taking us to count six. On the question of the Agency's legal integrity, under Administrator Johnson, the EPA offered legal arguments for its insufficient pollutant standards so shallow they provoked ridicule by the courts that heard them. When EPA tried to defend its weak mercury cap-and-trade system, the DC Circuit Court of Appeals--which, as we know, is hardly a liberal bench--accused the Agency of employing the ``logic of the Queen of Hearts'' in attempting to evade the intent of Congress and the clear meaning of the Clean Air Act. The same court said EPA's argument under the Clean Air Act allowing power companies to avoid upgrading their pollution control technologies made sense only in ``a Humpty Dumpty world.'' In adopting ``Wonderland'' legal analysis that contravenes the clear will of Congress and embarrasses his Agency before the courts, Administrator Johnson failed again in his duty to uphold the mission of the Agency he leads. Count 7: On the integrity of EPA's scientific advisory boards, Administrator Johnson did not just ignore these boards' recommendations, he willingly allowed those panels to be infiltrated by the very industries they are meant to regulate and control. For example, an employee of ExxonMobil served on the panel to assess the carcinogenicity of ethyl oxide--a chemical manufactured by ExxonMobil. Another scientist received research support from Dow Agro and served on that panel, even though ethyl oxide is also manufactured by Dow Agro. A scientist whose research was funded by American Cyanamid and CYTEC sits on the EPA panel on acrylamide, which is manufactured by American Cyanamid and marketed by CYTEC. EPA did not see any conflict of interest. But at the beck and call of the American Chemistry Council, an industry lobby group, Administrator Johnson removed Dr. Deborah Rice, a prominent toxicologist, from a scientific review board investigating chemicals used in common plastic goods. The industry argued that she had a conflict of interest. Incredibly, the conflict of interest was that, at a public hearing in the State of Maine, as a representative of the State's Government, Dr. Rice had stated her professional opinion regarding the dangers associated with these chemicals. The industry did not like her professional opinion. Not only was Dr. Rice removed from the panel, but in a particularly Orwellian maneuver, the fact that she had ever been on the panel was stricken from the advisory committee's records. In packing EPA's scientific panels to please industry polluters, Administrator Johnson is guilty of a particularly chilling dereliction of his duty to the Agency he leads. Count 8: A report issued on April 23 by the Union of Concerned Scientists, entitled ``Interference at the EPA,'' uncovered widespread political influence in EPA decisions. The report found that 60 percent of EPA career scientists surveyed had personally experienced at least one incident of political interference during the past 5 years--60 percent of the career scientists. It is a plague over there. The report documented, among other things, that many EPA scientists have been directed to inappropriately exclude or alter information from EPA science documents, or have had their work edited in a manner that resulted in changes to their scientific findings. The survey also revealed that EPA scientists have often objected to or resigned or removed themselves from EPA projects because of that pressure to change scientific findings. Allowing this corrosive political influence to persist among the career scientists at EPA is yet another dereliction of Administrator Johnson's duty to the Agency he leads. Count 9: Administrator Johnson has twisted the very administrative procedures of the Environmental Protection Agency to allow the White House Office of Management and Budget secret influence over Agency decisionmaking. For example, the IRIS process for determining the toxicity of chemicals that all of us are exposed to allows OMB three separate chances to exert its dark influence: at the beginning, in the middle, and again at the end of the Agency's process. In the words of the GAO, this process is ``inconsistent with the principle of sound science that relies on, among other things, transparency.'' This is not just a potential concern. The current chair of EPA's Clean Air Scientific Advisory Panel has testified that the ozone standard was ``[set] . . . by fiat behind closed doors,'' has testified that the entire Agency's scientific process was ``for naught,'' and testified that ``the OMB and the White House set the standard, even though theoretically it was set by the EPA Administrator.'' She testified that as a result, ``willful ignorance triumphed over sound science.'' That is her testimony. In manipulating his Agency's processes to let willful ignorance triumph over sound science, Administrator Johnson has again been derelict in his duties to this once proud Agency. The third and final category of charges relates to Johnson's relationship to Congress. In defiance of his charge under the Constitution of the United States, Administrator Johnson has personally repeatedly refused to cooperate with Congress in our efforts to conduct proper oversight over the executive branch. The Senate Environment and Public Works Committee has repeatedly requested documents in connection with EPA's denial of the California waiver and its failure to adequately regulate ozone pollution in our efforts to determine whether the White House improperly influenced these decisions. Administrator Johnson has rebuffed these proper requests. He has repeatedly declined to appear before the EPW Committee to explain his Agency's policies. And when he has appeared, he has resorted to canned, stock, evasive answers in response to legitimate questions about political influence infiltrating his Agency. Just last week, he refused to appear before the Judiciary Committee on which I also serve for a hearing to look further into his failure to cooperate with Congress and provide documents and other information we have sought. In what is perhaps the gravest matter of all, I believe the Administrator deliberately and repeatedly lied to Congress, creating a false picture of the process that led to EPA's denial of the California waiver, in order to obscure the role of the White House in influencing his decision. Today, Senator Boxer and I have sent a letter to Attorney General Mukasey--along with Senator Klobuchar--asking him to investigate whether Administrator Johnson gave false and misleading statements, whether he committed perjury, and whether he obstructed Congress's investigation into the process that led to the denial of the California waiver request. I ask unanimous consent that the letter and its attached recitations be printed in the Record as an exhibit to these remarks.

Mr. WHITEHOUSE. There is more. These are not isolated counts but signs of an agency corrupted in every place the shadowy influence of the Bush White House can reach. Administrator Johnson forced the resignation of EPA's Regional Administrator for the Midwest, Mary Gade, who was locked in a struggle with corporate polluter Dow Chemical Company. The circumstances are highly suspicious. Administrator Johnson has replaced Ms. Gade with a former attorney for the automobile industry, whose record on behalf of the environment has been described as ``horrible.'' The EPA, under Administrator Johnson, has reduced the reporting burdens on industries that release toxic chemicals into our land, sea, and air. It has weakened enforcement and monitoring by opening fewer criminal investigations, filing fewer lawsuits, and levying fewer fines against corporate polluters. It has failed to protect agency employees who pointed out problems or reported legal violations or attempted to correct factual misrepresentations made by their superiors and created an atmosphere where employees fear reprisals. In the face of widespread criticism that his agency is in crisis and that he is a pawn of the White House and its allies in polluting industries, Administrator Johnson's response was to label all those concerned, many of whom are dedicated career employees of his agency, as ``yammering critics,'' clearly a man after Spiro Agnew's own heart. The EPA has a vital mission. When this great agency is weakened and its work subverted by political interference, there is a great cost to this country. When EPA scientists and career employees become discouraged as their voices go unheard, there is a great cost to this country. When the people of America lose faith that the Environmental Protection Agency actually lives up to its name, there is a great cost to this country. When those who were chosen to serve this country instead serve themselves, their political allies, and their patrons, there is a great and lasting cost to this country. It is a failure of integrity, and that is a failure we can no longer afford. We demand integrity--democracy demands integrity--of our public officials, not just because integrity is an abstract moral good but because democracy fails without it. Integrity sustains our democracy in such important ways. The first is integrity to the truth. In Government, when the facts are clear enough for responsible people to act, it is a failure of integrity to fail to confront those facts. As the late Senator from New York, Daniel Patrick Moynihan, famously said: ``You are entitled to your own opinion; you are not entitled to your own facts.'' America has traditionally been characterized by candid and practical assessment of the facts, a can-do attitude about responding to those facts, and bold decisionmaking to find our way through those facts. Practical, can-do, optimistic, realistic--that is the American way. When Government doesn't face the truth about the facts, it will almost certainly fail to meet the demands of the moment and fail to serve the interests of our people. That is what is happening at EPA. They simply will not face facts plain to any responsible person. However, facts are stubborn things. They do not yield to ideology or influence. They do not care about your politics. Unanswered they stand, getting worse, and eventually the piper must be paid. If facts aren't candidly, realistically, and responsibly faced, not only will the problem get worse but the very capacity of the Government to address problems candidly, realistically, and responsibly, that capacity will itself degrade when not put to use. So there are ugly, lasting consequences when Government officials fail at their obligation to meet the truth head on. Another integrity is to honesty. As failures of truth have a harsh cost in Government, so do failures in honesty. I have sworn in new assistant U.S. attorneys. I have sworn in new State assistant attorneys general. I have presided at nomination hearings. Every time I have seen the same thing: a little spark of fire, a moral fire sparked when someone makes a choice to earn less money than they would otherwise, to work a lot harder than they would otherwise, to dare greater challenges than they might otherwise, all in order to serve the larger purpose, to serve an ideal, to serve America. This spark of fire inspires young men and women to tackle problems that may seem unmanageable. This spark of fire keeps people at their desks late into the night when others have gone home to their families. This spark of fire brings idealism and principle to decisions and illuminates a moral path through the complexities of Government. The value in Government of that spark of fire burning in the hearts of a thousand men and women--our real thousand points of light--is immeasurable. EPA is sustained by that spark of fire. But this spark of fire is quenched in the toxic atmosphere of dishonesty whose guiding principles are help your friends, please your patron, dodge your responsibilities, and fudge the truth. Dishonesty and idealisms do not cohabit. The third integrity is competence, a vital integrity. If we are to address the present and looming problems a new administration will have to face--a war without end in Iraq, an economy on a sickening slide, a broken health care system, a country divided into two increasingly separate Americas, a public education system that is failing, the dangerous weight of an alarming national debt, foreign policies that have unhinged us from responsible world opinion, bickering and irresolution on problems such as immigration and global warming--we must see competence as a core integrity. We must demand competence of Government officials as a bare minimum, a core necessity. Unfortunately, as one discouraged official has complained: ``In the Bush administration, loyalty is the new competence.'' Administrator Stephen Johnson is a failure in all these dimensions. From everything we have seen, Administrator Johnson has done the bidding of the Bush administration and its political allies without hesitation or question and in violation of his clear duty. He has tried to cover up his dereliction of duty with evasive and discreditable testimony. He has acted without regard for the law or the determinations of the courts. He has damaged the mission, the morale, and the integrity of his great institution--the Environmental Protection Agency--and he has betrayed his solemn duty to Americans who depend on him to protect their health, particularly our very youngest and our very oldest whose vulnerability is greatest. Administrator Johnson suggests a man who has every intention of driving his agency onto the rocks, of undermining and despoiling it, of leaving America's environment and America's people without an honest advocate in their Federal Government. This behavior not only degrades his once great agency, it drives the dagger of dishonesty deep into the very vitals of American democracy. The American people cannot accept such a person in a position of great responsibility. I am truly sorry it has come to this, but that is why this afternoon I called on Administrator Johnson to resign his position. I encourage my colleagues to look closely at these concerns. Look at the reasons. Look at what I have prepared. Whatever decision colleagues may come to, I hope all understand I come to this decision sincerely and after much review and reflection and with no pleasure. I thank the President, and I yield the floor. Exhibit 1 U.S. Senate, Committee on Environment and Public Works, Washington, DC, July 29, 2008. Hon. Michael Mukasey, Attorney General, U.S. Department of Justice, Washington, DC. Dear Attorney General Mukasey: As members of the Senate Committee on Environment and Public Works (EPW), we are writing to ask that you open an investigation into whether the Administrator of the U.S. Environmental Protection Agency (EPA), Stephen L. Johnson, has made false or misleading statements before the EPW Committee. We do not make this request lightly. However, we believe that there is significant evidence to suggest that Mr. Johnson has provided statements that are inconsistent with sworn testimony and documents provided in connection with an investigation conducted by this Committee. These false, misleading, or intentionally incomplete statements relate to the decision announced by EPA on December 19, 2007, to deny the request by California for a waiver under Section 209 of the Clean Air Act. After Mr. Johnson's testimony, a former senior aide to Mr. Johnson at EPA, Jason Burnett, provided sworn testimony before the EPW Committee on July 22, 2008, that appears to contradict Mr. Johnson's testimony on key factual matters. For example, Mr. Johnson stated under oath before the EPW Committee on January 24, 2008 that he based his denial of the California waiver request on California's failure to meet the ``compelling and extraordinary'' circumstances criterion under Section 209, and that he reached this decision independently. However, Mr. Burnett testified that Mr. Johnson had in fact determined that California met this criterion and the other Clean Air Act criteria necessary for approval of the waiver, and that the Administration's decision to deny the waiver was based on the President's policy preferences, rather than the lack of compelling and extraordinary circumstances. In addition, Mr. Johnson testified before the EPW Committee that the decision to deny that waiver was solely his decision. However, Mr. Burnett testified that Mr. Johnson had a plan to grant the waiver and had concluded that the statutory criteria for granting it were met, until it was ``clearly articulated'' by the White House that the President's ``policy preference'' was to deny the waiver. We also are concerned about Mr. Johnson's testimony that the energy legislation enacted by Congress and signed by the President on December 19, 2007, was not substantively related to his decision announced on the same day to deny the California waiver, which he asserted was based upon his finding that the waiver did not meet the Clean Air Act statutory criteria. Mr. Burnett testified, however, that Mr. Johnson had required extensive analysis of the impact of this energy bill in evaluating whether to grant the waiver, and that it was the President's policy preference that led to the denial of California's waiver request, because granting the waiver or a partial grant of the waiver would have led to two standards, not one, as the President desired. The energy bill established a single standard for vehicle fuel efficiency, as the President desired. It appears that Mr. Johnson's account of the California waiver decision is factually inaccurate or misleading. We take the inconsistency between Mr. Johnson's testimony and other evidence very seriously. False testimony by any witness is serious and undermines our ability to fulfill our constitutional duties on behalf of the American people. Our concern is heightened because this decision by the EPA Administrator affects the health and wellbeing of the American people. For these reasons, we have no choice but to refer the matter to you for appropriate investigation and prosecutorial action. We look forward to your prompt response on this matter. Sincerely, Barbara Boxer, Chairman. Sheldon Whitehouse, U.S. Senator. Amy Klobuchar, U.S. Senator. Frank R. Lautenberg, U.S. Senator.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I rise today with good news and bad news for the American people. The good news is that the Senate is poised to pass legislation providing badly needed relief for millions of American families in their darkest days: families who stand on the verge of losing their homes. The bad news is that this critical assistance will come only after long, needless delay due to obstruction and political gamesmanship by some members of the Republican minority in this body. For too many people in this country, times are as tough as they have ever been. With millions of Americans mired in the subprime loan crisis, families across the nation stand just one lost job, one medical expense, one credit card penalty fee, or one car accident away from losing the roof over their heads. Last month, over a quarter of a million homes received a foreclosure notice--that's up over 50 percent from the same period last year. In my State of Rhode Island alone, a State with a population of around 1 million people, over 3,800 homes were in foreclosure in the first quarter of this year alone. The collapse of the subprime mortgage market has left financial institutions in ruins, left families struggling, and left our economy vulnerable to even more widespread damage, especially as the cost of energy rises. For the first time in generations, Americans now face the prospect of leaving to their children a life with fewer opportunities and greater uncertainty than we inherited from our parents. Our children deserve better. Democrats in the Senate and the House of Representatives have worked with Republicans to craft a bipartisan measure that will offer the assistance millions of families need to weather the housing crisis today and the reforms necessary to prevent a future housing market implosion. This legislation would authorize the Federal Housing Administration to provide up to $300 billion in mortgages to distressed homeowners. This program will help over a million homeowners replace their subprime high-rate, low-quality mortgages with quality loans at reasonable rates. In addition, our housing rescue measure would modernize the FHA to permit it to insure a greater number of quality mortgages. For many homeowners and homebuyers, FHA-backed mortgages are the only alternative to the subprime market. The housing rescue package also includes $150 million for foreclosure prevention counseling and $4 billion for communities to buy and restore foreclosed and abandoned properties. Moreover, the bill mandates new disclosure requirements to ensure that future homebuyers are not tricked into mortgages with rates that can change unexpectedly. This disclosure provision, like so many other elements of this landmark housing bill, was authored by my senior Senator from Rhode Island, Mr. Jack Reed. Senator Reed, who serves on the Banking, Housing, and Urban Affairs Committee, has been among the leading voices in the Senate on this issue, working to combat predatory lending and other tactics that disadvantage consumers. Senator Reed also fought to ensure that this housing bill includes an affordable housing trust fund that will produce and rehabilitate homes for low-income families, many of whom have been priced out of the housing market. It will literally bring thousands of families out from the cold, and I congratulate Senator Reed for his tireless efforts to see this important assistance written into the law of the land. I am gratified that we are able to finally pass this critical legislation, and that President Bush has finally come to his senses and dropped his longstanding veto threat. This bill represents long-needed and long-awaited relief for American homeowners, and I urge President Bush to sign this legislation without delay as soon as it reaches his desk.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. I thank the Chair. With relatively constant supplies of futures and the dramatically expanding demand of speculators, prices have nowhere to go but up. So I am here to support legislation that our colleagues have offered to get to the bottom of the energy speculation boom. Senator Maria Cantwell, in particular, has been a leader, but I wish to commend Majority Leader Reid for offering the Stop Excessive Energy Speculation Act of 2008, which would address the problem of excessive speculation. In the time that remains, I will simply urge my colleagues to take a look at this problem. When there is $16 billion that used to chase these indexed futures funds and it is now over 300, clearly something is going on in these markets that we need to get a look at. We should regulate them the way we do other markets, such as grain. These funds, which include university endowments and pension funds, may unknowingly be helping drive up prices by holding energy assets-- commodities they don't intend to sell or consume--as part of broad investment strategies. The amount of money in commodity-based index funds has exploded in recent years, rising from $13 billion in 2003 to $317 billion today, according to one estimate. Leader Reid's bill would bring to light the role of index traders in the energy market by requiring the CFTC to collect and publish data on their participation. Greater transparency combined with the new investigatory resources that this bill provides will help lower energy prices. Do we know for sure that speculation is driving oil prices? Not for sure. But we do know two things--one, we regulate speculation in this commodity, oil, less than we do other commodities such as grain, and two, there is more than enough evidence of excessive speculation to prompt a reasonable and prudent person to act. I hope the Senate will act quickly to pass legislation strengthening the government's authority to crack down on rampant speculation in the energy markets and call on my Republican colleagues to take action that will help consumers in the near term, instead of resorting to political gimmickry. I appreciate the courtesy of the Chair, and I yield the floor.

Mr. WHITEHOUSE. Mr. President, will you be kind enough to notify me when there is 30 seconds remaining so I can conclude without imposing on the other party's time? Mr. President, today, Rhode Island drivers are paying more than $4 a gallon for gas, and they have been paying those prices for well over a month now. We all know that 8 years of two oilmen in the White House equals over $4-a-gallon gas, a nearly sixfold increase in oil prices. These record oil prices have sent consumer prices skyrocketing, not only at the pump but at the supermarket and the department store. Food and household goods take energy to produce and transport and have become more and more expensive. While George Bush and Dick Cheney's friends in the oil industry celebrate grotesque profits, ordinary Americans struggle to make ends meet. Families in Rhode Island and across the country are having to choose between filling their tank and feeding their families and between heating their home and buying needed medicine. They are frustrated, they are angry, and they are looking for solutions any way they can find them. Unfortunately, rather than taking steps that will help consumers today, the Bush Republicans are now trying to harness Americans' anger and frustration and, of all things, use it to capture more inventory for big oil. The energy companies have already bought 68 million acres of public lands to drill, and they are sitting on it. They are spending more buying back stock than they are drilling these holdings. Now, rather than drill what they have, they want more. The administration and its allies have said that opening more land to drilling is the one and only way to lower the price of gas in this country. That is flat wrong. The United States owns 3 percent of the world's oil reserves and consumes 25 percent of the world's oil. The measures endorsed by the administration and its allies would have zero effect on gas prices--zero effect for at least a decade. Even then, the Energy Information Administration projects these proposals aren't likely to make any significant dent in gas prices--cold comfort for Americans who have watched gas prices rise by about $3 a gallon while two oilmen occupied the White House. We cannot drill our way out of this problem, now or ever. But that is not all. Even as the Bush Republicans say their only answer to our energy crisis is drill, drill, drill, they have repeatedly refused our good-faith offer to bring their proposal to a vote. If they are confident this is the right solution, then give each of us the chance to vote up or down, based on what we think is right for the people we represent. Why not? Because as we have seen, time and time again, they are not interested in finding the right solution, in doing what is right by families who need help today. No, the Bush Republicans are much more interested in playing politics and pouring more money into the pockets of oil companies already reaping world record, history-of-the-universe profits. Their proposal would encourage our continued dependence on oil, harm our environment, and delay our badly needed transition to the vibrant green economy that beckons us. Make no mistake, if the Republicans would let us walk through this door, a vibrant green economy does beckon American workers and families. We need real commonsense solutions that can make a difference now. One factor most economists believe has played a major role in driving up prices is rampant speculation in the commodities and futures markets, something we can address today. Speculators invest in oil futures with no intention of taking possession of the commodity itself. They have historically played a role in the marketplace, but under George Bush's watch, excessive and irresponsible speculation has exploded. Experts may disagree on whether speculators have run up the price of oil by 10, 30 or 50 percent, but there is broad and growing agreement that speculation is a serious problem and that fixing that problem can help bring gas prices down now. Of course, the big oil companies, and those in Congress who support them, say the dynamics of supply and demand, not speculation, is the real cause of the massive price increases. There are two problems with that argument. First, we have heard testimony from experts who say there is no way that simple supply and demand for oil can explain the huge rise in energy costs that have plagued American families in the last several months. Second, energy speculation has its own supply and demand in the commodity market. According to data from the CFTC, speculators now control 71 percent of the oil market, up from 37 percent when President Bush took office.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. If I could indicate to the Senator from Virginia, we are under an order that allocates the time of one-half-hour blocks, and I have our first Democratic half hour. So it would probably be more convenient and better, if the Senator simply followed the Republican leader, and I just deferred some additional time to allow him to speak directly after the Republican leader, and we can adjust the order accordingly.

Mr. WHITEHOUSE. I am happy the leader should proceed. I simply wished to have an idea of how long it might be so I know when I would begin.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I ask unanimous consent that after I have concluded my remarks, the control of the time go back and forth between the Republicans and the Democrats, alternating in half-hour increments.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the Republicans control the time until 4 p.m., the Democrats control the next 30 minutes, the Republicans control the following 30 minutes, and the Senate continue to alternate control of 30 minute blocks of time thereafter.

Mr. WHITEHOUSE. Now, Mr. President, I understand Senator Domenici wishes also to say a few words. As far as I am concerned----

Mr. WHITEHOUSE. Yes. Mr. President, I intend to use the first Democratic block of 30 minutes.

Mr. WHITEHOUSE. But if Senator Domenici wishes to speak in the first Republican 15 minutes, and if he goes over for a certain amount of time, I am perfectly happy to yield to him. He is a very distinguished Senator.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I am very pleased to have a chance to speak today about the problem of health care in our country. We are coming into a potentially very exciting time, when a new President and new administration will open up new opportunities to reform our ailing and broken health care system. It is a matter of urgency that we do so. It is also a matter of urgency that we get it right. I have spoken on this issue on a number of occasions on the floor and elsewhere, and I often describe the marks of failure of our health care system, which are many. For example, the number of uninsured Americans is now climbing toward 50 million people. The fact is that despite the best doctors, the best nurses, the best medical equipment and procedures, the best medical education in the world, as many as 100,000 Americans are killed every year by avoidable medical errors. In the United States, our life expectancy, our obesity, and our infant mortality rates are an embarrassment compared to other nations. The health care system cost is over $2 trillion. The last report I saw was at $2.3 trillion, and it is anticipated shortly to reach $4 trillion. At this point, we are spending 16 percent of our gross domestic product on health care, which is far more than any other nation; the closest nation comes to 11 percent. The average of the European Union countries is only 8 percent. So we are putting twice as much of our national product into our health care system as our European competitors are. Within our own system, the insurance companies' overhead eats up 31 percent of private insurance health care expenditures. In the battle between insurers and providers over getting paid--which is becoming increasingly an arms race--$20 billion per year gets burned up and lost. More American families are bankrupted by health care emergencies and health care expenses than any other cause. It is not just uninsured families who are being bankrupted. It is the insured as well because of the thinness of so much of our coverage. There is more health care than coffee beans in Starbucks coffee. There is more health care than steel in Ford automobiles. So when you look at it from that perspective, you truly see a troubled system. The Commonwealth Fund has recently put forward a report that drills into the problems of our system even further. I would like to take some time to share with my colleagues the findings from the Commonwealth Fund study. They are quite impressive, but not in a positive way. They found that Americans spend more on health care expenses than any other of the countries they tracked. This axis of the graph shows total health care spending. This axis of the graph shows the out-of-pocket spending in addition to the insured health care spending. You can see that the United States stands as an extreme outlier to all of these other nations, including France, Germany, Canada, Netherlands, Australia, New Zealand, and Japan, and the average of the OECD countries--a group of 30 market economy countries that are very competitive with ours. It is astonishing. We cannot remain competitive when total health care spending is this much above those countries, plus out-of-pocket demands on individual Americans, in addition to that national health care spending, is so much greater than those other countries. People who spent more than $1,000 out of pocket for medical care in 2004 when the study was done: In the United States, nearly a third of the above-average income people; a quarter of below-average income people, compared to the United Kingdom, 2 percent and 5 percent; New Zealand, 4 percent and 6 percent; Canada, 10 percent and 12 percent; Australia, 8 percent and 21 percent. We are not even close. Spending on physician services: In the United States, we pay $1,362 every year per capita on physician services. In the Nations with which we compete: Japan $563; OECD, the average is $482; Australia, $436; France, $371; Canada, $319; Germany, $307. That is a quarter of what we spend. And they are not receiving bad health care in those countries. Pharmaceutical spending is a little bit more even but, once again, who has to spend the most? Good old USA, more than twice what the OECD average is or The Netherlands; about twice what Australia is. Over and over, we see persons punished by the cost of the health care system. Here is what I mentioned earlier, the percentage of the gross domestic product spent on health care: America, 16 percent; the next highest is just under 11; OECD, the average is 8.7 percent. This is not a sustainable situation. Health care spending per capita, $6,102 for Americans, compared to the competing systems: Canada, $3,165; France, $3,159; The Netherlands, Germany, Australia, OECD, UK, Japan, New Zealand, down to $2,083, about a third of what we spend in the United States of America. And they have very decent health care systems and, in many cases, better health care outcomes. This is similar to the other graph showing that $6,102 goes per capita per year to support our health care system. This shows that if you break it up into public spending in the yellow, out-of-pocket spending in the white, and private insurance spending in the blue, if you take the private and out-of-pocket spending, it is more than every other country with which we compete. That entire $2,572 per person in private insurance spending is all above what everybody else has to pay for health care in their countries. No wonder facts such as these emerge. Physicians perceive that patients often have difficulty paying for medications: 51 percent of American doctors have observed in their professions that we Americans have difficulty paying for our prescriptions--51 percent. In New Zealand, the next highest, it is 27 percent; Canada, 24 percent; Germany, 23 percent; Australia, 15 percent; UK, 13 percent; down to Netherlands, 7 percent. Wouldn't we be better off as a country if only 7 percent of physicians reported that their patients often had trouble paying for medications? And for all of that, look at some of the results we get. Deaths due to surgical or medical mishaps per 100,000 population: America leads the nations with .7 mishaps per 100,000; .6 for Germany; .5 for Canada and France, all the way down to .2 for Japan and The Netherlands. We pay more, but we don't get better results. This one makes me cringe to look at. Infant mortality rate for our country: 7 deaths per 1,000 live births. Look at the countries that beat us in infant mortality: New Zealand, Canada, United Kingdom, Greece, Ireland, Portugal, Australia, Netherlands, Switzerland, Italy, Denmark, Belgium, Germany, the Czech Republic, Austria, France, Spain, Norway, Sweden, Finland, Japan, and Iceland, with many countries with an infant mortality rate half our country's, despite the fact we are spending twice as much on health care. If we look at potential years of life lost to circulatory illness, which means dying younger than you should have, America leads: 825 potential years of life lost per 100,000 population; Australia, 419; France, 411, half as much. It is embarrassing. Potential years of life lost due to diabetes: In the U.S., again, 101, down to Japan, 25, four times better. Look at how we are outliers against the rest of our competitors and against these other developed nations. Diseases of the respiratory system: Here we go again. Who is the worst? The USA. Obesity: This is a huge indicator of future illness and future health care expense. Again, who is the worst? Madam President, 30.6 percent in the U.S., down to 9.5 percent in France; 10.9 percent in The Netherlands; 12.9 percent for Germany; the OECD average, 13 percent. We are twice as bad as the OECD average. Look at the system that is backing it up. Patients reporting any error based on the number of doctors they have seen: If they have 4 or more doctors, 48 percent of American patients reported errors; with 1 doctor, it is 22 percent. We are worse than all the other countries again and again. It is similar for medical, medication, and lab errors. Who is the worst? The United States, with 34 percent compared to 22 percent in the UK; 23 percent for Germany; 25 percent for New Zealand; 27 percent for Australia; 30 percent for Canada. Incorrect lab and diagnostic test or delay in receiving abnormal test results: Again, who has the worst record? The U.S., 23 percent. The Germans managed to get that down to 9 percent. We are more than twice as bad as they are. Coordination of care, vitally important for people who have multiple illnesses and multiple treatments, reporting of coordination problems: The U.S., 43 percent for those with 4 or more doctors; 22 percent for those with 1 doctor. That is again, worse than all of our competitors that were in the study. Difficulty getting care on nights, weekends, and holidays without going to the ER: It has become standard in America that the place you get care on nights, weekends, and holidays is the emergency room, and that is why 61 percent of adults who sought care reported it was very or somewhat difficult to get care without going to the emergency room. In Germany and New Zealand, they managed to get that to 25 percent and 28 percent respectively, another measure that the system is not serving the American people. Test results or medical records not available at the time of appointment: 23 percent compared to 11 in Germany. Again, we are the worst on the table. Doctors who report they routinely receive alerts about potential problems with drug dosage or drug interactions: In the United Kingdom, 91 percent report they receive alerts about a potential problem with a drug dosage or interaction; 97 if you include those who use a manual system; 93 percent total in New Zealand; 95 percent in The Netherlands; 90 percent in Australia; 51 percent in the United States. We are not even close by a lot of these measures. Here is our public investment per capita in health information technology, which is probably the platform to the solution of our health care dilemma: United Kingdom, 192 bucks per person in 2005; Canada, $31; Germany, $21; Australia, $4.93. Here is what we invest in the U.S.: 43 cents--43 cents--to develop health information technology. No wonder we are getting those results we saw. And here they are, primary care doctors' use of electronic patient medical records: 98 percent of primary care doctors use electronic patient medical records in The Netherlands; 92 percent in New Zealand; 89 percent in the UK; 79 percent in Australia; 42 percent in Germany; and look at us, 28 percent. It is pathetic. And where are the financial incentives to encourage doctors to do it? Why is it at 28 percent? Look who reports they have financial incentives for quality of care improvements: 95 percent do in the UK; 79 percent in New Zealand; 72 percent in Australia. Who, again, is the worst? Who again is trailing the civilized, developed world? The United States of America. Again, it is embarrassing. If you are managing patients with chronic disease, which is where the big money is and where the biggest health risks are, how many primary care doctors get financial incentives for quality of care improvement: 79 percent do in the United Kingdom; 68 percent do in New Zealand; 62 percent in Australia; in The Netherlands, 47 percent; in Canada, 37 percent; in Germany, 24 percent. Look at us, 8 percent. And we wonder why there is a problem. We are not even happy about the system and our interactions dealing with it. Does your doctor always listen carefully? Who comes in last? The U.S. Does your doctor always explain things so you can understand them? Who comes in last? The U.S. Does your doctor always spend enough time with you? Who comes in last? The U.S. I know I have taken everybody through a lot of graphs. There are a lot more in the overall study by the Commonwealth Fund. This is the wrap-up of the ranks for 2004, 2006, and 2007 of the six nations. Who is last every year? Sixth place for six; sixth place for six; sixth place for six; and for $6,102 per person compared to about $3,000 or less for almost every other one of our competitors. This is what it leads to. This is spending on health per capita. Back in 1980, all the nations were grouped fairly closely together. The other nations have remained fairly closely grouped. But look at what has happened to our cost profile, and it is going to continue to go up and up and up and up, and we are going to come to a breaking point. David Walker, the former Comptroller General, has said the cost of the unfunded liability we bear for the future costs of entitlement programs is $53 trillion. I come from Rhode Island. We don't deal in trillions of dollars. Our whole State budget is a little over $5 billion. What is $53 trillion? If a penny is $1 billion and 5 pennies is a stack about this high, which will be the entire State of Rhode Island budget, $53 trillion is a stack of pennies more than 250 feet high, through the roof of this building and hundreds of feet into the air. What we are going to have is a health care calamity. We have two choices as to how we deal with it. We can wait around. We can wait until the wolf is at the door and then we can decide we cannot afford $53 trillion. We can make fiscal adjustments to that. We know what fiscal adjustments we can make. We have done some already. You pay providers less. You throw more people off health care. You make insurance coverage thinner. You raise taxes to pay for it. But we have gone down all those roads already. We have gone too far down those roads already. And if we are left with only those tools in the toolbox to solve this health care problem, we will be doing one of the gravest disservices this Congress has ever done to the country we are here to serve. Instead, we have to go and look at the health care delivery system and repair it so it provides better results. The good news from all the bad news on those charts is that there is enormous room for improvement. We can substantially reduce the cost. There are three important ways I think we can go about doing this. The first is to improve our health information technology. We need to have a national health information technology infrastructure. The RAND Corporation values having a national health information technology infrastructure at somewhere between $81 billion and $346 billion per year. That type of savings is worth spending some serious money to achieve--not the 43 cents per person we saw on the graph. We have to engage in a national urgent construction project of a health information technology infrastructure. The second thing we have to address significantly is the problem of quality and the underinvestment in prevention in our system right now. There are enormous savings to be reached there. In a project we are doing in Rhode Island, copying the Keystone project in Michigan, we are seeing significant savings in our intensive care units and improving quality of care. In Michigan, in 15 months, they saved about 1,500 lives, and they saved about $150 million. And it wasn't even in all the intensive care units in Michigan. There are huge savings from quality improvement if you can set up the incentives so people will do it. When we set this up in Rhode Island, the hospitals came to me--I was attorney general then--and they said: we will do this, but it is going to cost $400,000 a year. And I said: Yes, but it saves money. Keystone showed that. We think it will save $8 million. That is a 20-to-1 return. Go. And they said: No, no, no, you don't understand how it works in the health care system. That $400,000 comes out of our expenditures. That is a negative on our bottom line. That $8 million savings comes out of our revenues. We get reimbursed for that care. So we will lose $8 million in revenues if you ask us to spend this $400,000. That is a big hit. They agreed to do it, but I have taken aboard in my mind and my heart the lesson of how badly our health care system supports providers when they try to improve the quality of care in this very tough financial environment they are in. That brings us to the third piece. Health information technology was first, quality prevention investment in ways that will save costs is second, and the third is to reform the reimbursement system so the price signal that gets sent into the market by our health care system directs people in ways we want. We can't do this on a piecemeal basis any longer. These three ideas can dramatically reform our health care system. They have one problem. They will take some time. You can't turn the switch and make them go. We have some work to do to develop the strategy, to implement it, and to build what new infrastructure has to be constructed to make it work. I would guess, based on an experience I had in Rhode Island with a similar reform, that it is a 10-to-15-year lead time to have the full effect begin to show itself. And you know what, if you dial back from the time when that $53 trillion fiscal tsunami is going to hit this country, that 10 to 15 years is probably right now. So not only is a new administration with a new President and new energy and new opportunities a great chance in the coming year to begin to get this work done and to open a substantial reform of our health care system, but it is also, in many respects, a deadline. You can go by a highway exit and it is too late to come back to it, and I am afraid that is where we are right now. So as I prepare to conclude my remarks and yield the floor, I want to say to my colleagues: we are going to have to work very hard together to fix our health care system in the coming year. I know the financing problems and the access problems are real, but I urge and implore you to consider that it is not enough to repair the finance and the access problems of our health care system. We need to get into the delivery system and fix it so it provides better, less expensive, more efficient health care for Americans. I believe we can do it, and I believe it is not a partisan issue. It is a question of right versus wrong, smart versus stupid, wasteful versus efficient, and not right versus left or Republican versus Democrat. So I challenge my colleagues to join me in this fight, and I look forward to the important results from it that America needs. I thank the Presiding Officer for recognizing me, and I yield the floor.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I appreciate very much the courtesy of my chairman in allowing me some time. I should not take more than 10 minutes. Once more we find ourselves debating President Bush's warrantless wiretapping program, a self-inflicted wound that this administration has visited upon our Government. The way this Senator sees it at least, the Bush administration broke faith with the American people with its warrantless surveillance program, and now we in Congress are meant to clean up the administration's mess. Unfortunately, we are doing so with a legislative fix that in one critical area--immunity for the phone companies--misapplies the substantial evidence standard, trespasses constitutional boundaries, and breaks dangerous new ground in American law. We would not be in this position if the Bush administration had sought and received a court order in the first place, as it easily could have. There would be no debate over granting immunity since a company following a court order is protected. Or the Bush administration could have used FISA procedures to seek and receive lawful assistance from telecommunications companies. But the administration chose to go outside the law. I suspect the administration wanted to prove a point about the President's article II authority, so it deliberately avoided these well-established mechanisms. If so, the Bush administration deliberately walked these telecommunications companies into this problem and this litigation to vindicate ideological ambitions. But the problem is now before us. I have worked diligently and across the aisle to try to develop thoughtful solutions to the problem. In February, with the distinguished Senator from Pennsylvania, Senator Arlen Specter, the learned ranking member of the Judiciary Committee, I offered a bipartisan amendment that would have substituted the U.S. Government for the telecommunications companies if it was determined they acted in good faith and with the reasonable belief that compliance was lawful. Similarly, I supported an amendment offered by Senators Dianne Feinstein and Bill Nelson, drawn from the Specter-Whitehouse amendment, that offered immunity to those companies that acted, again, in good faith and with the reasonable belief that compliance was lawful. Good faith is the proper standard here. It is the standard repeatedly referenced by respected Members in this Chamber who have asserted that any telecommunications company that assisted the Government acted in good faith. My friend, Senator Martinez, said: The fact is that these companies acted in good faith, and they acted in good faith when they were called upon to assist our intelligence professionals. My friend on the Judiciary Committee, Senator Kyl, noted: [t]he general rule that private citizens acting in good faith to assist law enforcement are immune from suit. Senator Chambliss, my colleague on the Intelligence Committee, argued that America's telecommunications carriers ``should not be subjected to costly legal battles and potentially frivolous cases . . . merely for their good faith-assistance to the Government.'' Senator Allard said that ``the U.S. Government owes these patriotic companies and their executives protections based on the good-faith effort they made in working with our intelligence community.'' Senator Bond, vice chairman of the Intelligence Committee, noted that ``the intelligence community advised us . . . that these companies acted in good faith, and we in the committee agreed with them.'' We seem to have agreement amongst Members in this body that good faith is the proper standard. So we should let a court, which has available to it the procedural mechanisms necessary to get to the bottom of this in a confidential manner, make the determination, the fundamental determination: Did these companies, if they received Government requests, act in good faith? We may in this body assume it to be true, but it is not our role as Members of Congress to decide on the good faith of an individual litigant in a matter that is before a court. Many Senators have not even been read into the classified materials that would allow us to reach an informed conclusion about good faith. We as a body are incapable of making an informed conclusion because as a body, we have not had access to the necessary materials. So we should provide a fair mechanism for a finding of good faith by a proper judicial body with the proper provisions for confidentiality. This simple determination can be made with limited proceedings based largely on the record of any documents provided to the companies. We ask so little--a proper hearing, applying a proper standard. Unfortunately, the Bush administration opposed this option, and I have not had the chance to offer this amendment. For all its talk, the Bush administration was evidently and tellingly not confident that a good- faith threshold could be met. So instead of requiring a finding of good faith, the bill states that immunity will be granted if the Attorney General's certification is ``supported by substantial evidence.'' It is worth drilling down to some lawyering for a moment to reflect on what ``substantial evidence'' means in this context. The first point is that ``substantial evidence'' standard is essentially a meaningless standard, given the minimal showing necessary to be granted immunity. The elements as to which substantial evidence must exist are these: The intelligence activity was ``authorized by the President''; ``designed to detect or prevent a terrorist attack''; and ``the subject of a written request or directive . . . indicating that the activity was (I) authorized by the President; and (ii) determined to be lawful.'' That is it. That is achieved by simply putting into evidence the piece of paper containing the Attorney General's certification. But the substantial evidence standard implies more than that, and it is out of place here. This standard is typically applied in what is called a ``sufficiency challenge''--a judicial inquiry into whether there is substantial evidence to support a jury verdict. I cannot tell you how many sufficiency challenges I have withstood as an attorney general and U.S. attorney. It is standard fare in criminal cases. The substantial evidence standard is also frequently used for judicial review of an administrative agency's adjudication or rulemaking. So the substantial evidence standard is used to review the results of adversarial proceedings where the parties had a chance to make their case and build their record, and the court then reviews to determine whether there is substantial evidence to support the agency's or jury's determination. The substantial evidence standard is a standard used to weigh the result of an adversarial process. Not so here. Here the court will apply the substantial evidence standard to an Attorney General's unilateral certification. That is bad lawyering. That is discouraging, when it would have been so easy to get this right. Let me close with a few words about the constitutionality of title II. It is a core principle of our system of separated powers that no branch of Government may exercise powers allocated to another branch. The United States Supreme Court has said that the Framers of the Federal Constitution felt in drafting our Constitution ``the sense of a sharp necessity to separate the legislative from the judicial power.'' This sense of sharp necessity, the Court said, was ``prompted by the crescendo''--the words the Court used--``the crescendo of legislative interference with private judgment of the courts.'' If you wish to see a case of legislative interference with private judgment of the courts, look no further than what we are doing today. Plaintiffs in the telecom litigation have brought causes of action alleging that their core constitutional rights were violated. By providing immunity, Congress is telling the judicial branch: You cannot hear an entire category of constitutional claims. Congress is intruding upon a core function of the judicial power--the resolution of constitutional disputes. The U.S. Supreme Court has warned on more than one occasion, most recently in the 1988 case of Webster v. Doe, that ``a serious constitutional question would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.'' This statute has as its very purpose to deny a judicial forum to these colorable constitutional claims. I further note that Congress stepping in to pick winners and losers in ongoing litigation on constitutional rights not only raises separation of powers concerns but it veers near running afoul of the due process and takings clauses. Article II of this bill is the most extreme measure Congress, as best as I can find, has ever taken to interfere in ongoing litigation. Congress usually provides at least a figleaf of an alternative remedy when it takes away the judicial one. For example, in the National Childhood Vaccine Injury Act, Congress put a stop to Federal court actions but provided an alternative path for claims to be heard. The Public Readiness and Emergency Preparedness Act eliminated liability for people who take certain countermeasures during or after a pandemic outbreak. But a special fund for victims was established by Congress. Today's effort is a naked intrusion into ongoing litigation. Where will that stop? Will Congress be able to rove at will through litigation anywhere in the judicial branch, picking winners and losers as we like? We don't just trespass on the separation of powers; we trespass onto dangerous ground. If I were a litigant, I would challenge the constitutionality of the immunity provisions of this statute, and I would expect a good chance of winning. I spoke before the Independence Day recess about article I of this bill, how proud I am of the work that went into it and the exemplary results we have achieved. Chairman Rockefeller, in particular, but many others as well, deserves commendation, first for resisting the Bush administration's unseemly efforts to create a legislative stampede and, second, for thoughtfully crafting an improved and modernized FISA Act that contains many new important protections for Americans. I will incorporate my reference of my previous remarks on that subject, but suffice it to say as an attorney general and a U.S. attorney who has run wiretap vehicles, article I is a fine piece of legislation which makes it all the more disappointing that the Bush administration will not tolerate an amendment to article II that allows for a proper hearing before the proper court set to the proper standard. It would be so easy to get article II right. So close and yet so far. I close by reiterating my deep anger that the Bush administration unnecessarily created this mess in the first place, my frustration with the solution that Congress has established to the immunity question, and my hope that our great judicial branch will vindicate the error we in the legislative branch make today.

Mr. WHITEHOUSE. Does the distinguished Senator yield me time to reply?

Mr. WHITEHOUSE. I have no objection, of course.

Mr. WHITEHOUSE. Of course, I did say in my remarks that I believed that this body is incapable of making a determination as to the good faith of the telecommunications companies for the reason the distinguished Senator from Pennsylvania has indicated, to wit, very few of us, less than a majority and certainly not all of us, have been briefed as to what the actual facts are, what was provided, if anything, to the telecommunications companies that would support our finding of good faith. As I said in my remarks, I think essentially every Senator who has spoken to this question has implicitly referred to good faith, directly referred to good faith as the implicit standard. I view it, although I defer to the far greater experience and learning of my colleague from Pennsylvania--I see it less as a constitutional issue of deference than one of legislative prudence. I think it is not prudent for us as a Senate to take it upon ourselves to make the good-faith determination. I think that is a determination that should be made by a judicial tribunal, it should be made with appropriate provision for confidentiality, and it should be made by the judicial agency that customarily makes good-faith determinations. It isn't our legislative role to do that. So I agree with the concern of the distinguished Senator about this. I see it less as a constitutional limitation on my ability as a Senator to cast my vote, which I think is untrammeled. I can cast my vote about things I know nothing about, have not studied on, am totally uninformed, if I wish. It would be bad and imprudent for me to do it, but I do not believe the Constitution prevents me from doing it, so I see it more as a matter of legislative prudence.