Sheldon Whitehouse

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, my home State of Rhode Island has the distinction of being home to the oldest Jewish house of worship in the United States, the Touro Synagogue in historic Newport. This synagogue was founded in 1763. Today, the synagogue stands as a handsome landmark, designed by the famous colonial architect Peter Harris, a reminder of historic days past for a community that this year, 2008, will celebrate the 350th anniversary of the first Jewish settlement in Rhode Island and a living expression today of our Jewish community's faith. But during the infancy of our young Nation, Touro Synagogue played a major political role in defining what religious freedom would come to mean to Americans. In 1790, the congregation at Touro Synagogue wrote to President George Washington, then in only his second year in office, when he visited Newport on a political tour to rally support for an American bill of rights. The warden of the synagogue, Moses Seixas, sought Washington's assurance that religious freedom would be guaranteed to Jews throughout the country. In those first tumultuous years of our Republic, there was much uncertainty as to the guaranteed rights of individuals. Our Declaration of Independence had declared certain unalienable rights to be self- evident, but our Constitution did not yet include our Bill of Rights. There was no guarantee of an American's right to freely exercise his or her religion as we have today in the first amendment. President Washington's public letter to the Touro congregation, coming from a political leader whose word was gold, left no doubt that the United States Government would defend the religious freedoms of all people, including those whose beliefs were different from the common ones, and it assured that this Government would have no part in stifling the beliefs of any who chose to worship as their conscience and traditions directed. It was, at the time, a revolutionary promise from a revolutionary man, and I am pleased to read the full text of this historic correspondence. To the President of the United States of America. Sir: Permit the children of the Stock of Abraham to approach you with the most cordial affection and esteem for your person and merits, and to join with our fellow citizens in welcoming you to NewPort. With pleasure we reflect on those days, those days of difficulty and danger, when the God of Israel, who delivered David from the peril of the sword, shielded your head in the day of battle: and we rejoice to think, that the same Spirit, who rested in the Bosom of the greatly beloved Daniel, enabling him to preside over the Provinces of the Babylonish Empire, rests and ever will rest, upon you, enabling you to discharge the arduous duties of Chief Magistrate in these States. This was before the Civil War, so it was ``these States'' and not the ``United States.'' Deprived as we heretofore have been of the invaluable rights of free Citizens, we now with a deep sense of gratitude to the Almighty disposer of all events behold a Government, erected by the Majesty of the People, a Government, which to bigotry gives no sanction, to persecution no assistance-- You will see in Washington's reply that the wily fox knew a good phrase when he saw one. --but generously affording to all Liberty of conscience, and immunities of Citizenship: deeming every one, of whatever Nation, tongue, or language equal parts of the great governmental Machine: This so ample and extensive Federal Union whose basics is Philanthropy, Mutual confidence and Public Virtue, we cannot but acknowledge to be the work of the Great God, who ruleth in the Armies of Heaven, and among the Inhabitants of the Earth, doing whatever seemeth him good. For all these Blessings of civil and religious liberty which we enjoy under an equal benign administration, we desire to send up our thanks to the Ancient of Days, the great preserver of Men, beseeching him, that the Angel who conducted our forefathers through the wilderness into the promised Land, may graciously conduct you through all the difficulties and dangers of this mortal life: And, when, like Joshua full of days and full of honour; you are gathered to your Fathers, may you be admitted into the Heavenly Paradise to partake of the water of life, and the tree of immortality. Done and Signed by order of the Hebrew Congregation in NewPort, Rhode Island August 17th 1790. Moses Seixas, Warden. And then came the President's reply. To the Hebrew Congregation in Newport Rhode Island. Gentlemen, While I receive, with much satisfaction, your Address replete with expressions of affection and esteem; I rejoice in the opportunity of assuring you, that I shall always retain a grateful remembrance of the cordial welcome I experienced in my visit to Newport, from all classes of Citizens. The reflection on the days of difficulty and danger which are past is rendered the more sweet, from a consciousness that they are succeeded by days of uncommon prosperity and security. If we have wisdom to make the best use of the advantages with which we are now favored, we cannot fail, under the just administration of a good Government, to become a great and happy people. The Citizens of the United States have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support. It would be inconsistent with the frankness of my character not to avow that I am pleased with your favorable opinion of my Administration, and fervent wishes for my felicity. May the children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants: while every one shall sit in safety understood his own vine and figtree, and there shall be none to make him afraid. May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy. G. Washington. I yield the floor.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. I am aware of none. I cannot guarantee that our research has been complete and exhaustive. But, certainly, the recent efforts that Congress has done where an immunity from liability has been an issue, either responding to pandemics or responding to vaccines, what Congress has done there is to create an alternative remedy. I am aware of no precedent for the Congress of the United States stepping into ongoing litigation, choosing a winner and a loser, allowing no alternative remedy. And I believe the constitutional problem with doing that as a separation of powers matter is particularly acute where the cause of action that is being litigated in the judicial branch is a constitutional claim. And Judge Vaughan is listening to constitutional claims. That is the subject matter of the litigation. So I believe it will be determined by a court that ultimately this section of the legislation is unconstitutional, in violation of the separation of powers, because we may not, as a Congress, take away the access of the people of this country to constitutional determinations heard by the courts of this country.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, before I discuss for a moment the Foreign Intelligence Surveillance Act, I applaud my colleague, the distinguished Senator from Pennsylvania, for his remarks. In the year and a half we have served together in this body, he has stood out as a powerful advocate for consumers, particularly Pennsylvania consumers. He has always had a very thoughtful, helpful, and productive approach to the solutions he has put forward and espoused. It is an honor for me to follow him on the Senate floor here. On the question of the Foreign Intelligence Surveillance Act, I will talk about the immunity question for telecoms at another time. It is not yet clear what amendment will be allowed to be offered. I thought I would talk about two other issues at this point. The first is the process that has got us here. I do wish to pay particular tribute to the chairman of the Senate Select Committee on Intelligence, Jay Rockefeller, for how steadfast he has been in pushing through this process. We in the Senate have also been done a great service by our colleagues in the House of Representatives, who stood fast against the Bush administration efforts to stampede this legislation through without proper negotiation and without the basic process of back and forth that ordinarily improves legislation. It has made for a better piece of legislation. It also makes for a notable contrast with what happened a year ago, when we first took up this legislation. I wish to talk for a minute about that because it was a very disappointing episode, I believe, in the Senate's history, and it is one I wish to make sure we chronicle because it should not be repeated. In order to understand what I am going to say, it will be important to remember the schedule at the time. I have just replicated July of 2007, and the early days of August here. The first time the big sort of stampede push began, for me at least, was when the Director of National Intelligence, Admiral McConnell, met with me on July 11 in the secure confines of the Senate Intelligence Committee to tell me what he wanted. There had been a big FISA bill that had everything but the kitchen sink in it. It was clearly going no place. He realized he would have to focus on what he wanted, and he said three things. These are from my notes of that meeting. No. 1, we need to compel the telecoms to help us; No. 2, we need to get foreign-to-foreign conversations, not Americans, foreign-to-foreign conversations without having to go to the FISA Court; and No. 3, we need a warrant if we are going to wiretap Americans. We accept that. So I said to him: That is fine, but you do not have any legislation. We are suspicious of what is going to be in this legislation when it shows up, so the sooner you can get it written and the sooner you can get it to us the better, because the devil is going to be in the details and we need a chance to look it over. That was on July 11. The draft legislation was circulated on July 27. It was circulated, at least to me, by mail, so I didn't get it on July 27. I got it over the weekend, the following Monday, on July 30. The Friday from Monday delivery stunt is one we have seen before. But what concerned me was that once that legislation was delivered, the Bush administration began to whip up everything they could do to try to panic Americans about what was going on. On July 28, that Saturday, President Bush gave a radio address, saying: Our intelligence community warns that under the current statute we are missing a significant amount of foreign intelligence that we should be collecting to protect our country. Congress needs to act immediately to pass this bill so that our national security professionals can close intelligence gaps and provide critical warning time for our country. He asked us to work together to pass FISA modernization now, before we leave town, and said our national security depends on it. That is what he said here. The Senate promptly picked up the chorus with one of my colleagues saying we would be deaf during August to discussions of threats being carried on by al-Qaida and others seeking to do us harm if we did not pass the legislation. Another colleague said: This is a time when the Director of National Intelligence and the Secretary of the Department of Homeland Security have said it is a high threat month and it is imperative for national security that we adopt this now. Another one of our colleagues said: Make no mistake, inaction on our part needlessly subjects every American to increased danger. We need to act. Those are just several high points of a real campaign to try to drive this issue by public fear. Well, here is what concerned me. If, when the President spoke on July 28, national security was that vitally affected by the speed of this legislation; if every day that went by we were missing intelligence, because of an intelligence gap, of al-Qaida plots that were being developed then and there to attack us; if that were true also on the 3rd, why wasn't it true back here on July 11 and 12 and 13, 14, 15, and all the way through here when they circulated the draft on July 27? Here is what they sent us. This. It is 12 pages. That is it. Double spaced. I could write 12 pages of legislation double spaced in 17 hours if our national security depended upon it. It would not take me 17 days. So when it takes them 17 days to write 12 pages of legislation and then deliver it on the Monday before we recess and suddenly there is an explosion of concern about immediate al-Qaida attacks that are being planned that we need to get into, something does not add up. I believe the result was what I call the August stampede, and as a result we passed, bluntly, a very poor piece of legislation, the so-called Protect America Act. This piece of legislation does a number of very good things to repair some of the damage in the Protect America Act. The first is protection for Americans when we travel abroad. Americans travel a lot now. They travel on business, they travel on vacation. It is a lot more expensive now given the Bush administration's oil prices, but people still travel a lot. The rule had been, under the Protect America Act, that if you were traveling abroad, you had no statutory or judicial protection of your privacy, none whatsoever. They could listen to your telephone calls, they could take your BlackBerrys, e-mails, anything--it was open season. There were no statutory or judicial protections for Americans once they set foot outside of the country. The only protection was an executive order, 12333, which said that if the Attorney General determined that you as an American were an agent of a foreign power, then they could listen, then they could surveil, then they could intercept, but only if the Attorney General made that determination. So there was a protection, but it was only an executive order--nothing statutory, nothing judicial. Then we looked into the opinions that underlie the Bush warrantless wiretapping program, and here is what I found. The flaw in the Protect America Act is that it contained no statutory, no judicial protections for Americans once they were traveling abroad and put them at the mercy of the executive branch of Government to be wiretapped at will, protected only by an Executive order. Our discovery, in the course of looking at the classified legal opinions that supported the warrantless wiretapping program, we discovered this rule that had been inserted by the Office of Legal Counsel: An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it. Well, as a theory, I think that is, frankly, deeply flawed legally. In my examination of Attorney General nominee Mukasey, I asked him what the force of an Executive order was. He answered me saying: Should an executive order apply to the President and he determines that the order be modified, the appropriate course would be for him to issue a new order, or amend the prior order. I think that is not only the correct but the obvious solution. But we were left in a situation in which an American traveling abroad, without statutory protection, without judicial protection, and with the only protection from the executive being a protection that the President cannot be limited by and that he can ignore at will--frankly, that was no protection at all. So we worked very hard in the committee--and it has persisted through the entire lengthy process we have been involved in--to make sure that an American, whether you are in the United States or traveling abroad, has the protection of a judicial order before your Government can wiretap you. And that has been achieved. That has been an important achievement. A second achievement has been in the area of minimization. I know the Presiding Officer was a prosecutor in Minnesota. I have run wiretap investigations as a U.S. attorney, I have run wiretap investigations as an attorney general, and I have seen firsthand how important minimization is to a wiretap investigation. Minimization is what happens when you have the authority to wiretap somebody, but because you have the authority to wiretap one person, they could be talking to somebody else who is not part of the criminal or national security activity involved, and if that proves to be the case, you have to minimize that to protect the rights of the third person they are talking to. In the old days, the FBI agents would literally sit there with their earmuffs on listening and flip the switch on and off to see whether the conversation was still an innocent conversation or related to some criminal matter. Now it is more complex, but those minimization procedures did not previously have any judicial oversight. They only were required to be filed. Under this bill, the Attorney General shall adopt minimization procedures. It is mandatory. But more than that, the Foreign Intelligence Surveillance Court is given authority to review those minimization procedures; specifically, to determine whether those procedures meet the statutory standards we require for minimization procedures. So that is particularly important. Finally, this statute for the first time recognizes ``the inherent authority of the FISA Court to determine or enforce compliance with an order or a rule of such court.'' So they not only get the minimization procedures, they get to approve the minimization procedures. If it is determined that the executive branch isn't following them, they can check for compliance, and they can enforce the procedure. That is a substantial, additional improvement that brings this in line with the traditions of wiretap surveillance within the United States. Another significant improvement has been in the area of exclusivity. FISA has always said that ``it shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electric communications may be conducted.'' That was clearly the intent of Congress, as courts, including in the Andonian decision, have agreed. However, we have a problem again with the Office of Legal Counsel. The Office of Legal Counsel said this: Unless made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct wireless searches in the national security area--which it has not--then the statute must be construed to avoid a reading. I don't know how you get ``which it has not'' out of the clear language of the Foreign Intelligence Surveillance Act saying this is the exclusive means. But once we found out that in these classified opinions the Office of Legal counsel had suggested this language right here either didn't exist or didn't mean anything, it had to be solved. Thanks to the leadership of Senator Feinstein, in particular, there has been great energy put into improving the exclusivity provision. I think it is now an exclusivity provision that would defeat this type of, frankly, improbable legal analysis and clearly define that it is Congress's intent in the FISA statute to take every possible avenue it can to limit executive surveillance activities to those that are performed within the statutory authority of this particular legislation. The last thing is reverse targeting. There has been considerable concern about allowing the Government to identify a foreigner who is in touch with Americans regularly and target that foreigner with the reverse targeting purpose to actually pick up the conversations of the American and dodge the requirement for a warrant for judicial review vis-a-vis the American. There are strong provisions in here that require that regulations and procedures be developed to prevent that. I hope to be able to discuss the statute further, as we get to the discussion about immunity. But I will conclude by summarizing that the process we went through to get to this piece of legislation, particularly article I of this bill, was a very proud moment for this Senate and for this caucus, for Chairman Rockefeller. It has been infinitely better than the degraded process we went through last August in the atmosphere of stampede. I think the quality of the underlying legislation shows it. I hope as we continue to work together in the Senate on other issues, we continue to follow the process that took place with respect to this iteration of the FISA bill, and we never go back to the kind of hectic, imprudent stampede we were put through last August. Second, the elements of article I are improved. This is, in article I, a bill we can we very proud of. We will have our dispute about the immunity provisions. I will have my thoughts on that for later. But there is much that has been accomplished and great credit is due particularly to Chairman Rockefeller for those accomplishments. I yield the floor and suggest the absence of a quorum.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, every student of American history knows the story of the Boston Tea Party, the men who crept onto British ships moored in Boston Harbor on December 16, 1773, to destroy shipments of tea that the English sought to tax. They were patriots who yearned for liberty, for ``no taxation without representation,'' and who stepped into history. Only a few miles south and more than a year earlier, however, another group of men had engaged in another act of patriotism--yet these men are largely forgotten outside my home State of Rhode Island. Every year, in their memory, Rhode Islanders celebrate Gaspee Day. This is their story. During the buildup to the Revolutionary War, as tensions between England and its American colonies grew increasingly strained, King George III stationed the HMS Gaspee, under the command of LT William Dudingston, in the waters off Rhode Island. Its mission was to search incoming ships for smuggled goods and enforce the payment of taxes. On June 9, 1772--16 months before the tea party in Boston--the sailing vessel Hannah was traveling from Newport to Providence when it was intercepted by the Gaspee and ordered to stop to allow a search. On board the Hannah, Captain Benjamin Lindsey refused and continued on his course, despite warning shots fired by the Gaspee. The smaller and more maneuverable Hannah then raced up Narragansett Bay and into the safety of Pawtuxet Cove. The hulking Gaspee tried to chase the Hannah but ran aground in the shallow waters of Namquid Point. The Gaspee was stuck, awaiting the higher tides of the following day. Meanwhile, Captain Lindsey proceeded on his course, and upon arriving in Providence he met with John Brown, a community leader who later founded Brown University. The two men arranged for a meeting of local patriots at Sabin's Tavern, in what is now Providence's East Side, later that day. At the meeting, the assembled group of Rhode Islanders decided that action must be taken. Gaspee was a symbol of their oppression, and she was helplessly stranded in Pawtuxet Cove. In short, the opportunity was too good to pass up. As night fell on June 9, 1772, there was no moonlight on the waters of Pawtuxet Cove. The Gaspee lay silent on the sand bar at Namquid Point. But just a few miles away in Providence, a team of about 60 men led by John Brown and Abraham Whipple was preparing for an assault that would soon break that silence. They armed themselves, boarded longboats, and set course for the Gaspee. After paddling the longboats 6 miles down the dark waters of Narragansett Bay, the men reached the Gaspee and surrounded it. Brown called out and demanded that Lieutenant Dudingston surrender his vessel. Dudingston refused and instead ordered his men to fire upon anyone who attempted to board the Gaspee. True to form, these brave Rhode Islanders seized the challenge. They forced their way aboard the Gaspee, and a struggle ensued. In the melee Lieutenant Dudingston was shot in the arm by a musket ball: Rhode Islanders had drawn the first blood of the American Revolution, right there in Pawtuxet Cove. Brown and Whipple's men took control of the ship from the British crew and transported the captive Englishmen safely to shore. They then returned to the abandoned Gaspee for one final act of defiance to the crown. The men set fire to the Gaspee and watched as its powder magazine exploded, leaving the whole ship burning down to the water line. The place was eventually renamed Gaspee Point. If that is not an act that defines the American struggle for independence, then I don't know what does. Since that night in June when the Gaspee burned, Rhode Islanders have marked the event with celebration. This year, as I do every year, I had the good fortune to march in the annual Gaspee Days parade in Warwick, RI. And every year, I think about what it must have felt like to be among the 60 men hauling on those longboat oars, as they paddled toward destiny. While it is doubtful that many of those patriots could fully grasp the place they were about to take in history, there must have been a feeling of deep satisfaction known only to those who, in the face of tyranny, have stood up for home, for family, and for country. It is the same feeling that must have accompanied the soldiers of General Washington as they crossed the Delaware, the delegates of the Continental Congress as they signed the Declaration of Independence, and indeed those men in Boston who emptied a shipment of tea into the ocean. I hope that the brave Rhode Islanders that gave us Gaspee Day will be remembered with those other giants of the Revolution, and given their due place in our Nation's history.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, after 7 long years of the Bush administration, our country's economy is in the worst condition it has been in decades. In my State of Rhode Island this week, a gallon of gas cost $4.11. Grocery bills are up. Utility bills are up. Affordable housing is scarce. Many homes are in foreclosure. Health care costs remain high. As a blistering hot summer approaches, there seems to be no end in sight. These are difficult times for many families. But for millions of Americans who are looking for a job today, the challenges seem almost insurmountable. Today, Senate Republicans showed yet again that they are more loyal to the failed economic policies of President Bush than to Americans who right now need our help. Majority Leader Reid and Senate Democrats pushed for quick passage of legislation to extend unemployment benefits. But Senate Republicans said no, even though last month the national unemployment rate saw its biggest 1- month increase in over 20 years, reaching a 4-year high of 5.5 percent. In Rhode Island, things were a bit worse. Last month the unemployment rate in our ocean State exceeded 6 percent. That is one of the highest in the country. These men and women are being forced to deal with both the deep disappointment of losing their jobs and the challenge of trying to make ends meet for their families in an economy that is in recession. One of these people is Brian Perry. Brian lives in East Providence, RI. He wrote me earlier this month to ask about the possibility of extending unemployment benefits. Brian had been a law clerk at a firm in downtown Providence, but he has been unemployed since January 11. Since January 11, he has applied unsuccessfully for more than 65 jobs. One of those positions had more than 300 applicants. Brian is receiving unemployment insurance, but it is not enough. Because he couldn't afford to pay both his mortgage and his monthly COBRA payments, Brian has been without health insurance since the end of January. In the United States of America, a working man trying to find a job without health insurance. He says it has become more and more difficult just to afford groceries, and some nights he goes to bed hungry. He could go to a food pantry, of course, but he has not yet because he thinks there are too many people who are worse off than he is. Brian's unemployment benefits expire at the end of July. People such as Brian need our help, and they need it now. What are we here for, if not to help our fellow Americans at times such as this? The Emergency Extended Unemployment Compensation Act would help. It would temporarily extend unemployment benefits 13 weeks beyond the ordinary 26-week eligibility period. In States such as Rhode Island, where people have been hardest hit, jobless workers would receive an additional 13 weeks of unemployment compensation. This critical measure was modeled after a bill introduced in January by Senator Ted Kennedy, a true champion of working Americans. It passed the House of Representatives last week with a strong bipartisan vote. As my colleagues know, unemployment insurance is just that-- insurance. Millions of Americans go out pounding the pavement each and every day looking for work to support themselves and their families. They find work, they work hard, and they earn their paychecks. As part of an employee's compensation, employers pay into the unemployment insurance system so that workers will be covered if they lose their jobs through no fault of their own. Unemployment benefits help hard- working men and women in this terrible Bush economy cover bills and living expenses while they search for a new job. The Emergency Extended Unemployment Compensation Act could help over 3 million Americans pay the mortgage or the rent or feed their families, as they continue to navigate a perilous job market. In Rhode Island alone, there are more than 18,000 people in need of a job, and their benefits either already have or will soon run out. I have heard the argument that people would not be motivated to find work if we extend this benefit; that they need this little spur to get off the couch and out into the workforce. In my experience, this is a ridiculous argument, a demeaning argument, one that is completely disengaged from the day-to-day experience of regular Rhode Islanders, from ordinary Americans, a true beltway special of an argument. This is a hard-working country, and it is in tough economic times. Good people are hurting. We should gather together around this legislation, support them as they try to get back into the workforce, and pass this piece of legislation. I yield the floor and suggest the absence of a quorum.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I ask unanimous consent that when the Senate completes its business today, it stand adjourned until 10 a.m., Tuesday, June 17; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, the time for the two leaders be reserved for their use later in the day, the Senate proceed to a period of morning business for up to 1 hour, with Senators permitted to speak for up to 10 minutes each, with the time equally divided and controlled between the two leaders or their designees, with the Republicans controlling the first half and the majority controlling the second half; that following morning business, the Senate resume consideration of the motion to proceed to H.R. 6049, the Renewable Energy and Job Creation Act, and the time until 12:30 p.m. be equally divided between the two leaders or their designees. I further ask that the Senate recess from 12:30 until 2:15 p.m. to allow for the weekly caucus luncheons to meet.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, under a previous order, at 2:15 tomorrow, the Senate will proceed to a cloture vote on the motion to proceed to H.R. 6049, the Renewable Energy and Job Creation Act.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. If there is no further business to come before the Senate, I ask unanimous consent that it stand adjourned under the previous order.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. I ask unanimous consent the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table, with no intervening action or debate, and any statements related to the resolution be printed in the Record.

Mr. WHITEHOUSE. I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 595 submitted earlier today by Senator Lincoln.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. I ask unanimous consent the bill be read three times, passed, and the motion to reconsider be laid upon the table, with no intervening action or debate, and any statements related to the bill be printed in the Record.

Mr. WHITEHOUSE. I ask unanimous consent that the Senate proceed to the immediate consideration of H.R. 5778, which was received from the House.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. I ask unanimous consent that an Inouye-Stevens substitute amendment, which is at the desk, be agreed to, the bill as amended be read a third time and passed, the motions to reconsider be laid upon the table with no intervening action or debate, and any statements be printed in the Record.

Mr. WHITEHOUSE. Madam President, I ask unanimous consent the Commerce committee be discharged from further consideration of H.R. 3403 and the Senate proceed to its immediate consideration.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. I ask unanimous consent that the bill be read a third time and passed, the motion to reconsider be laid upon the table, with no intervening action or debate, and any statements be printed in the Record.

Mr. WHITEHOUSE. Madam President, I ask unanimous consent the Commerce Committee be discharged from further consideration of H.R. 814, and the Senate proceed to its immediate consideration.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I ask unanimous consent that the Judiciary Committee be discharged from further consideration of S. Con. Res. 84 and the Senate proceed to its immediate consideration.

Mr. WHITEHOUSE. I ask unanimous consent that the concurrent resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table, with no intervening action or debate, and any statements related to the measure be printed in the Record.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I ask unanimous consent that the Senate proceed to a period of morning business, with Senators permitted to speak therein for up to 10 minutes each.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I have no objection whatsoever to standing on the Senate floor listening to the Senator from Utah speak. He is an enormously distinguished attorney and has been a great leader of his State and the Senate for a long time. I understand very well the unfortunate circumstance this morning was not expected by him, was not participated in by him. I think it has put him in an embarrassing position. I regret that, but I know he had nothing to do with it. I have highest regard for him. I think it also put the very distinguished Senator from Pennsylvania, the ranking member of the Judiciary Committee, in an even more difficult and embarrassing situation because the individual witnesses who were before us when our hearing was interrupted and cut off were Pennsylvanians, people from the ranking member's home State. I am sure if Ranking Member Specter had any idea this was going to happen, he would have taken energetic measures to make sure individual witnesses who suffered grievous injury and had come a long way to Washington to testify would not have had their hearing cut off by parliamentary maneuvers by his leadership. I have the highest regard for both those Senators.

Mr. WHITEHOUSE. Mr. President, I wish to speak about the Medicare bill before us. One of the strongest obligations we have in this body is to uphold America's promise to care for those who have worked hard throughout their lives, who have raised their families, and who have helped make this Nation great: our seniors. President Johnson created Medicare as part of that promise to give seniors all across this country the peace of mind they would have the health care they need as they grow older. Today, we take up legislation that would make this critically important program stronger by ensuring doctors in Rhode Island and across this country are compensated, as they should be, for the care they provide. The approaching June 30 deadline for resolving this issue certainly makes this legislation particularly urgent. But we all know that there is a far more ominous deadline looming over us in health care, and that is when the Medicare trust fund will become insolvent in 2019. As Chairman Conrad of the Budget Committee so often says, there is a tsunami of costs bearing down on us. We are now facing a 75-year shortfall in Medicare of $33.9 trillion. It is my belief that we as Senators have a fundamental obligation to begin to take steps now that will lower these looming overwhelming costs. If we fail to act now, we will be left with only the cold, harmful, and, frankly, cruel fiscal options of raising taxes, reducing benefits and eligibility, or cutting further provider payments. What a sad day that would be, especially since it is completely avoidable. This afternoon, I commend Senators Baucus, Rockefeller, Snowe, and Smith for offering a bill that not only addresses the looming cut in Medicare reimbursements to physicians, but takes a broader look at the problems in our Medicare system and in the health care system generally. This bill includes a number of reforms that begin to address the flaws in our broken health care system and lead us down a path of more efficient, effective care for seniors today and into the future. As my colleagues know, I am an enthusiastic supporter of the limitless potential of health information technology to support a transformation of our health care system. For many providers, e-prescribing, electronic prescribing of pharmaceuticals, is the gateway technology to larger health information technology adoption because the startup investment is relatively low and the benefits are quite high. E- prescribing is expected to eliminate over 2 million adverse drug events on Americans per year, to avoid 190,000 hospital admissions, and 1.3 million outpatient visits annually, and to produce an estimated yearly savings of $44 billion. To quote Department of Health and Human Services Secretary Leavitt: The benefits [of electronic prescribing] are unchallengeable. E-prescribing is not only more efficient and convenient for consumers, but widespread use would eliminate thousands of medication errors every year. . . . E- prescribing needs faster implementation. We have been through all the public processes necessary to develop standards. The technology is readily available and widely distributed. Electronic prescribing will enhance the safety and convenience for patients. This bill provides important incentives for practitioners who choose to e-prescribe, and it eventually requires all doctors to e-prescribe. This is a vital step forward for health care in this country and a farsighted component of this legislation. I thank Senator Kerry for crafting this important language, but also all the Senators on the other side of the aisle who have supported e-prescribing in Medicare, including Senators Alexander, Coleman, Corker, Cornyn, Ensign, Grassley, Martinez, Snowe, and Sununu. The need to promote health information technology is a truly bipartisan issue, and I am delighted to see it included in this important bill. The measure before us also makes important reforms for private fee- for-service Medicare. In light of this fiscal health care tsunami coming down on us, I am deeply concerned that private fee-for-service Medicare Advantage plans cost roughly 119 percent of the cost of covering the same individual in traditional fee-for-service Medicare. This is a program that was sold to Congress as more efficient, a cost- cutting alternative to traditional Medicare. History has proven those assertions to have been false, and now we should learn from that mistake. It has added about $1,000 in costs for each beneficiary in a private plan. Medicare Advantage will cost the Federal Government $54 billion over the next 5 years and $149 billion over the next 10 years, according to the Congressional Budget Office. These excess costs have caused a rise in Part B premiums for those seniors enrolled in traditional Medicare of $2 per month. These excess costs will cause the Medicare hospital insurance trust fund to become insolvent 2 years earlier than otherwise expected. I understand some Medicare Advantage plans offer benefits that are not covered in fee-for-service Medicare. Unlike traditional Medicare, Medicare Advantage plans can strategically attract healthier seniors by offering better coverage for low-cost care and worse coverage for intensive services. Groups, including the Medicare Rights Center, the Commonwealth Fund, the Kaiser Family Foundation, and MedPAC, have determined that private plan beneficiaries either pay more or receive fewer services for hospital and home care than do seniors in traditional Medicare. Medicare Advantage, and particularly fee-for-service Medicare Advantage, costs this system money it simply does not have. Seniors deserve better, and this bill does better for them. Seniors also deserve better when it comes to their Medicare Part D plans. Some of the very saddest stories that Rhode Islanders share with me as I host community dinners around my State concern their experiences with the Part D prescription drug program. An example is a young man named Travis who came to one of my community dinners in Woonsocket, RI. Travis told me of his 90-year-old great-grandmother who is living independently in a walkup apartment building in Woonsocket. She signed up for her Part D plan and was taking a number of prescription medications. One day she arrived at her pharmacy, went to the pharmacy window, only to be told that she had no coverage. She had fallen in what we preposterously call the doughnut hole, a massive gap in the coverage, a trap for seniors. She was turned away from the window because she had not brought the money to pay for her prescriptions. She didn't have it. She went home and called her great-grandson Travis in tears. She would no longer be able to afford her apartment or the independence she had maintained for 90 years. No American should be forced to choose between their dignity and their health, and it is a tragedy when this is an unnecessary choice. The Congressional Budget Office concludes that privatizing that drug benefit instead of simply adding the drug program to the established Medicare benefit costs almost $5 billion a year. The Center for Economic and Policy Research reveals that the combined cost of privatization and failure to negotiate prices is more than $30 million a year. Mr. President, I cannot look Travis in the eye and tell him the reason his great-grandmother cannot afford her independence any longer is because the Government needed to take the side of the pharmaceutical industry in this contest. In 2004, the pharmaceutical industry was three times more profitable than the median for all Fortune 500 companies, and from 1995 to 2002, it was the most profitable industry in the entire country. Since the passage of the Medicare Modernization Act, companies have engaged in outrageous, egregious marketing practices. This legislation prohibits door-to-door sales, cold calling, and free meals. It puts limits on cobranding, gifts and commissions and other hard-sell practices of both Part D and Medicare Advantage plans. Our Nation's elderly have given much to this country as parents, as grandparents, as teachers, as soldiers, as mentors, and as patriotic American citizens. They deserve respect, they deserve protection, and this bill affords them both. I close by saying the bill also recognizes that mental health coverage should be on par with any other illness seniors face, reducing the copayment from the current staggering rate of 50 percent to a 20- percent copay by 2014. Senior citizens commit suicide at a higher rate than any other age group. Mental health services are critically important for our elderly population. I am proud to support changes to mental health coverage in Medicare. I particularly wish to acknowledge the leadership of my colleague in the Rhode Island delegation, Representative Patrick Kennedy, who has been such a leader on mental health parity. He is the chief sponsor of that legislation in the House, and I look forward to larger reforms in the area of mental health parity with Congressman Kennedy at the helm. In closing, I thank Senator Baucus and particularly his staff for their tireless work in putting this measure together. I look forward to working with him and this entire body to pass this bill and then to work to enact future health care reforms to bring our system under control. I appreciate the courtesy of Senator Roberts. I yield the floor.

Mr. WHITEHOUSE. Of course.

Mr. WHITEHOUSE. Mr. President, the goodwill of the Senator from Utah is appreciated. Medicare

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I thank the Presiding Officer for coming to the chair a little early in order to allow me a chance to make a statement. It was a considerable courtesy and one that is much appreciated. I will open my remarks by saying: Well, here we go again. I have come to the floor several times already to warn of what appears to be a loss of integrity and legal scholarship at the once proud Office of Legal Counsel at the Department of Justice. First, back in December, I pointed out the, shall we say, ``eccentric'' theories that arose out of the OLC's analysis that greenlighted President Bush's program for warrantless wiretapping of Americans. Those opinions had been secret. These theories came to light after I plowed through a fat stack of classified opinions held in secret over at the White House and pressed to have the particular statements declassified. My colleagues may recall that these theories included the following: An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it. As the Presiding Officer well knows, Executive orders have the force of law. A theory like this allows the Federal Register, where the executive orders are assembled, to become a screen of falsehood behind which illegal programs can operate in violation of the very executive order that purports to control the executive branch. So that was a fine one. Here is another: The President, exercising his constitutional authority under Article II-- That is the section of the Constitution that provides for the Presidency and the executive branch of Government. Article I establishes the Congress; article II establishes the executive branch-- can determine whether an action is a lawful exercise of the President's authority under Article II. I think the expression for that is ``pulling yourself up in the air by your own bootstraps,'' and it runs contrary to widely established constitutional principle. The seminal case of Marbury v. Madison, which every law student knows, says it is emphatically the province and the duty of the judiciary to say what the law is. And none other than the great Justice Jackson once observed: Some arbiter is almost indispensable when power . . . is . . . balanced between different branches, as the legislature and the executive. . . . Each unit cannot be left to judge the limits of its own power. Yet this was the opinion of the Office of Legal Counsel. Here is the one I found perhaps most personally nauseating: The Department of Justice is bound by the President's legal [opinions.]. A particularly handy little doctrine for the White House, when it is the legality of White House conduct that is at issue. Wouldn't it be nice if you could come into the courts of America or face the laws of America with a principle that the law-determining body has to follow your instruction? If criminals had that, no one would ever go to jail. It is inappropriate in our system of justice. So I found these theories pretty appalling. I found them to be, frankly, fringe theories from the outer limits of legal ideology. They started me worrying about what is going on at the Office of Legal Counsel. Then we came to the OLC opinions the Bush administration used to authorize waterboarding of detainees. Then, again, I came to the floor because I was flabbergasted, horrified to discover that to reach its conclusions, the Office of Legal Counsel totally overlooked two highly relevant legal determinations and then went and drew language out of health care reimbursement law--health care reimbursement law--in order to justify allowing the administration to torture and waterboard prisoners. What were the highly relevant legal determinations the Office of Legal Counsel overlooked? Well, one was that it was American prosecutors and American judges who in military tribunals after World War II prosecuted Japanese soldiers for war crimes, for torture, on evidence of their waterboarding American prisoners of war. Missed it. The other major thing the OLC overlooked was that the Department of Justice itself prosecuted a Texas sheriff as a criminal for waterboarding prisoners in 1984. The sheriff's conviction went up on appeal to the U.S. Court of Appeals for the Fifth Circuit, one row under the U.S. Supreme Court, and the appeals court, in a public opinion, described the technique as ``water torture.'' The opinion used the term ``torture'' over and over again. All a legal researcher has to do is type the words ``water torture'' into the legal search engines, Lexus or Westlaw, and this case comes up: United States v. Lee, 744 F2d 1124. How did the wide-ranging legal analysis that ranged as far afield as health care reimbursement law for guidance miss a case that is bang on point, that was prosecuted by the Department of Justice itself, that is reported in a decision of the U.S. Court of Appeals, that describes this exact technique as ``water torture''? How, indeed. After this, I began to refer to whatever it is that the Office of Legal Counsel has now become as George Bush's ``Little Shop of Legal Horrors.'' Now we have this. The FISA statute contains what is called an exclusivity provision. The FISA statute of the Foreign Intelligence Surveillance Act is the law that governs our surveillance authority on foreign intelligence matters. It is an active issue before this body right now, and the exclusivity provision is actively being discussed. Here is how it reads: [FISA] shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted. ``Exclusive means.'' It seems pretty clear. And exclusivity provisions such as this in statutes are not uncommon. More on that later. But let's look at what the Office of Legal Counsel said about that language. This is language Senator Feinstein and I have had declassified. Similar to the others, it was buried in a classified opinion: Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct wireless searches in the national security area--which it has not-- ``Which it has not''-- then the statute must be construed to avoid such a reading. Well, this is particularly devilish because we have had a long argument through the FISA debate with the administration over the exclusivity provision. Senator Feinstein has led the charge on this, with strong bipartisan support from Senators Hagel and Snowe, and never once, in all these discussions, have I heard the administration say: Oh, there is a problem with the exclusivity language in the FISA bill. There is a loophole in it. It is not as strong as it could be. There is something Congress did in the exclusivity clause that would open a way for the President to wiretap Americans without a warrant. Never once been said. But behind the scenes, in secret opinions, they proclaimed that some loophole exists. I do not see the loophole: FISA ``shall be the exclusive means . . . .'' Where are you going to challenge it? Are you going to say: Well, maybe the hole is that they referenced the national security area? But the national security area is where our foreign intelligence surveillance exists. Well, maybe it has to do with wireless searches? No, wireless searches are precisely what the FISA act is all about. Maybe it has to do with Presidential authority? Well, who else wiretaps? We do not in Congress. The judges do not. Of course, it is the executive branch. So maybe it is that they do not think it was a clear enough statement? Well, let's take a look at that and start with a case from the U.S. Supreme Court. The Supreme Court was discussing a statute that gave the Court ``exclusive'' jurisdiction. Chief Justice Rehnquist wrote for the Supreme Court that this was ``uncompromising language.'' He continued: [T]he description of our jurisdiction as ``exclusive'' necessarily denies jurisdiction of such cases to any other federal court. Chief Justice Rehnquist said: This follows from the plain meaning of ``exclusive.'' The Chief Justice then cited to Webster's New International Dictionary for that plain meaning. My Webster's defines ``exclusive'' as ``single, sole,'' ``excluding others from participation.'' That sounds clear to me. The ``single'' means, the ``sole'' means, the means that excludes others from participation. Lower courts have discussed the FISA statute's own exclusivity provision directly. Chief Justice Rehnquist was talking about a different exclusivity provision. The FISA exclusivity provision was the subject of a case called United States v. Andonian, cited 735 F. Supp. 1469. The court said this. Let me read three sentences talking about the exclusivity language in FISA. [This language] reveals that Congress intended to sew up the perceived loopholes through which the President had been able to avoid the warrant requirement. The exclusivity clause makes it impossible for the President to ``opt-out'' of the legislative scheme by retreating to his ``inherent'' Executive sovereignty over foreign affairs . . . . The exclusivity clause . . . assures that the President cannot avoid Congress' limitations by resorting to ``inherent'' powers as had President Truman at the time of the ``Steel Seizure Case.'' By using this exclusivity clause, the court concluded: Congress denied the President his inherent powers outright. Tethering Executive reign, Congress deemed that the provisions for gathering intelligence in FISA and Title III were ``exclusive.'' Now, there still may be a constitutional question about whether the President's Article II powers exist, no matter whether Congress has passed a particular statute. But there can be no real question about the intention or the effect of FISA's exclusivity provision. I have sat and stared at FISA's exclusivity provision and the OLC language side by side, and I cannot make sense of how they came to that conclusion. Congress says, plain as day, FISA is the exclusive means, and OLC says Congress did not say that. So I wonder, maybe there is some strange legal use of the term ``exclusive'' that I missed in my 25 years of lawyering. Then I find this Court decision that says this very language in the FISA statute means Congress ``intended to sew up the perceived loopholes,'' that this language ``makes it impossible for the President to `opt-out' '' of the FISA requirements; that it ``assures that the President cannot avoid Congress's limitations,'' and that by this language ``Congress denied the President his inherent powers outright.'' Then I thought, maybe that is just a district court decision. That is a lower court. But here is the Supreme Court of the United States looking at an exclusivity clause in another statute and calling it ``uncompromising language,'' taking that word ``exclusive'' at its plain dictionary meaning. There is literally no way I can see to reconcile OLC's statement with the clear, plain language of Congress. I have, in the past, expressed the fear that the Office of Legal Counsel, under veils of secrecy, immune from either public scrutiny or peer review, became a hothouse of ideology, in which the professional standards expected of lawyers were thrown to the winds, all in order to produce the right answers for the bosses over at the White House. Well, as I said at the beginning, here we go again. Oh, one more thing. When the Department of Justice sent me the letter acknowledging that there was nothing that needed to be classified about this phrase, they also said this phrase was now disclaimed--their opinion was now disclaimed; not just declassified but disclaimed--by the Department of Justice. The letter reads: [A]s you are aware from a review of the Department's relevant legal opinions concerning the NSA's warrantless surveillance activities, the 2001 statement addressing FISA does not reflect the current analysis of the Department. But that does not answer this: What went wrong at the OLC? What led to this disclaimed opinion in the first place, and other opinions I have had to come to the floor about? Has it been put right? This is an important question because this is an important institution of our Government, and we need to be assured it is working for the American people, that it is of integrity and that it is back to the standards of legal scholarship that long characterized the once-proud reputation of that office. We do not have that assurance. There is a continuing drumbeat of what appears to be incompetence, and we need the reassurance. We are entitled to the reassurance. Something has to be done. Mr. President, I ask unanimous consent that the Department's letter be printed in the Record.