Sheldon Whitehouse

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I rise to urge my colleagues to support the Foreign Evidence Request Efficiency Act, which I have introduced on behalf of myself and the Chairman and Ranking Members of the Judiciary Committee, Senators Leahy and Sessions. It has been a pleasure to work with them on this truly bipartisan effort, and I am grateful for their support. Chairman Leahy, Ranking Member Sessions, and I have all served as prosecutors. I can say with no exaggeration that few responsibilities are more important to the rule of law, to the security of our communities, and to the rights and freedoms that we enjoy as Americans. I served as the U.S. Attorney for Rhode Island--Senator Sessions served in that capacity in Alabama--and I know we both will always remember the feeling of standing up in court to say: ``Your Honor, may it please the Court, I represent the United States of America.'' It was the honor of a lifetime. As my colleagues know, the United States routinely helps foreign law enforcement agencies as they pursue criminal conduct involving activity outside their borders, including inside the United States, and they do the same for us. This is exactly as it should be. As the world grows more interconnected and crime becomes increasingly global, it becomes all the more important for law enforcement agencies in the United States and around the world to work together to bring criminals to justice. Otherwise, it would be very hard to build cases against international organized crime organizations, drug cartels, purveyors of child pornography on the internet, and other criminal threats from outside our borders. One way that a law enforcement agency provides assistance to another is by gathering evidence from within its borders that a foreign law enforcement agency needs to prosecute a case. The United States routinely completes requests submitted to it by foreign law enforcement agencies just as it receives comparable assistance when it makes evidence requests in foreign countries. For example, let's assume that Spanish authorities are investigating a complicated financial fraud that is being conducted over the internet, apparently from a base in the United States. After conducting their investigation in Spain, the Spanish authorities submit a request to the United States for financial records, internet records, and various other kinds of evidence. U.S. Attorneys review the requests and then seek warrants for the evidence as appropriate. When the evidence is collected, the United States transmits it to Spanish authorities, leading to prosecution in Spanish courts. This process sounds quite simple, but unfortunately in practice it is extremely cumbersome. This is because under the existing rules, any foreign evidence request must be split up and sent to each district where the evidence exists. So take the Spanish example I just gave, and imagine that the financial records sought are in banks in six different federal judicial districts, that the internet records are in another five federal judicial districts, and that other documentary evidence is spread over another five districts. Under existing law, sixteen different U.S. Attorneys' Offices would have to work on the evidence request. This is incredibly inefficient and burdensome for U.S. Attorneys across the country. The Foreign Evidence Request Efficiency Act would end this problem by allowing such foreign evidence requests to be handled centrally, by a single or more limited number of U.S. Attorneys offices as appropriate. Why, as in my example, should sixteen U.S. Attorneys' Offices have to deal with an evidence request that one office can coordinate? Simply put, this reform would make life easier for our U.S. Attorneys. We owe them no less. Of course, respect for civil liberties demands that we not suddenly change the types of evidence that foreign governments may receive from the United States or reduce the role of courts as gatekeepers for searches. The Foreign Evidence Request Efficiency Act would leave those important protections in place, while simultaneously reducing the paperwork that the cumbersome existing process imposes on our U.S. Attorneys. Two points merit emphasis. First, by making it easier for U.S. Attorneys to collect evidence, the United States can respond more quickly to foreign requests for evidence. Setting a high standard of responsiveness will allow the United States to urge that foreign authorities respond to our requests for evidence with comparable speed. The United States will benefit if foreign governments cannot use our own delay to justify responding slowly to our requests. Second, the Foreign Evidence Request Efficiency Act would not change the United States' obligations to foreign nations. It would only make it easier for the United States to respond to these requests by allowing them to be centralized and by putting the process for handling them within a clear statutory system. I urge my colleagues to act promptly on this bipartisan legislation. I would like to thank the excellent attorneys in the Department of Justice who have worked with me on this legislation, and would like to request unanimous consent to insert their letter of support into the Congressional Record. I again thank Chairman Leahy and Ranking Member Sessions for their support. Mr. President, I ask unanimous consent that a letter of support be printed in the Record.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I wish to now change the subject and speak about an incident that is not part of anybody's proud heritage and that is the evidence we have recently heard about America's descent into torture. I know it is an awkward subject to talk about, an awkward subject to think about. On the one hand, we, as Americans, love our country, we hate the violence that has been done to us, and we want more than anything to protect our people from attacks. On the other hand, torture is wrong and we have known it and behaved accordingly in far worse circumstances than now. When Washington's troops hid in the snows of Valley Forge from a superior British force bent on their destruction, we did not torture. When our capital city was occupied and our Capitol burned by troops of the world's greatest naval power, we did not torture. When Nazi powers threatened our freedom in one hemisphere and Japanese aircraft destroyed much of our Pacific fleet in the other, we did not torture. Indeed, even when Americans took arms against Americans in our bloody Civil War, we did not torture. I know this is not easy. Our instincts to protect our country are set against our historic principles and our knowledge of right versus wrong. It is all made more difficult by how much that is untrue, how much that is misleading, and how much that is irrelevant have crowded into this discussion. It is hard enough to address this issue without being ensnared in a welter of deception. To try to clarify it, I wish to say a few things. The first is that I see three issues we need to grapple with. The first is the torture itself: What did Americans do? In what conditions of humanity and hygiene were the techniques applied? With what intensity and duration? Are our preconceptions about what was done based on the sanitized descriptions of techniques justified? Or was the actuality far worse? Were the carefully described predicates for the torture techniques and the limitations on their use followed in practice? Or did the torture exceed the predicates and bounds of the Office of Legal Counsel opinions? We do know this. We do know that Director Panetta of the CIA recently filed an affidavit in a U.S. Federal court saying this: These descriptions-- He is referring to descriptions of EITs--enhanced interrogation techniques--the torture techniques. He says in his sworn affidavit: These descriptions, however, are of EITs as applied in actual operations and are of a qualitatively different nature than the EIT descriptions in the abstract contained in the OLC memoranda. The words ``as applied'' and ``in the abstract'' are emphasized in the text. These descriptions, however, are of EITs as applied in actual operations and are of a qualitatively different nature than the EIT descriptions in the abstract contained in the OLC memoranda. The questions go on: What was the role of private contractors? Why did they need to be involved? And did their peculiar motivations influence what was done? Ultimately, was it successful? Did it generate the immediately actionable intelligence protecting America from immediate threats that it had been sold as producing? How did the torture techniques stack up against professional interrogation? Well, that is a significant array of questions all on its own, and we intend to answer them in the Senate Intelligence Committee under the leadership of Chairman Feinstein, expanding on work already done, thanks to the previous leadership of Chairman Rockefeller. There is another set of questions around how this was allowed to happen. When one knows that America has over and over prosecuted waterboarding, both as crime and as war crime; when one knows that the Reagan Department of Justice convicted and imprisoned a Texas sheriff for waterboarding prisoners; when one sees no mention of this history in the lengthy opinions of the Office of Legal Counsel at DOJ that cleared the waterboarding--no mention whatsoever; when assertions of fact made in those OLC opinions prove to be not only false but provably false from open source information available at the time; when one reads Chairman Levin's excellent Armed Services Committee reports on what happened at the Department of Defense, it is hard not to wonder what went wrong. Was a fix put in? And, if so, how? A lot of damage was done within the American institutions of government to allow this to happen. If American democracy is important, damage to her institutions is important and needs to be understood. Much of this damage was done to one of America's greatest institutions--the U.S. Department of Justice. I am confident the Judiciary Committee, under Chairman Leahy's leadership, will assure that we understand and repair that damage and protect America against it ever happening again. Finally--and I am very sorry to say this--but there has been a campaign of falsehood about this whole sorry episode. It has disserved the American public. As I said earlier, facing up to the questions of our use of torture is hard enough. It is worse when people are misled and don't know the whole truth and so can't form an informed opinion and instead quarrel over irrelevancies and false premises. Much debunking of falsehood remains to be done but cannot be done now because the accurate and complete information is classified. From open source and released information, here are some of the falsehoods that have been already debunked. I will warn you the record is bad, and the presumption of truth that executive officials and agencies should ordinarily enjoy is now hard to justify. We have been misled about nearly every aspect of this program. President Bush told us ``America does not torture'' while authorizing conduct that America itself has prosecuted as crime and war crime, as torture. Vice President Cheney agreed in an interview that waterboarding was like ``a dunk in the water'' when it was actually a technique of torture from the Spanish Inquisition to Cambodia's killing fields. John Yoo, who wrote the original torture opinions, told Esquire magazine that waterboarding was only done three times. Public reports now indicate that just two detainees were waterboarded 83 times and 183 times. Khalid Shaikh Mohammed reportedly was waterboarded 183 times. A former CIA official had told ABC News: ``KSM lasted the longest on the waterboard--about a minute and a half--but once he broke, it never had to be used again.'' We were told that waterboarding was determined to be legal, but we were not told how badly the law was ignored and manipulated by the Department of Justice's Office of Legal Counsel, nor were we told how furiously government and military lawyers tried to reject the defective OLC opinions. We were told we couldn't second guess the brave CIA officers who did this unpleasant duty, and then we found out that the program was led by private contractors with no real interrogation experience. Former CIA Director Hayden and former Attorney General Mukasey wrote that military interrogators need the Army Field Manual to restrain abuse by them, a limitation not needed by the experienced experts at the CIA. Let's look at that. The Army Field Manual is a code of honor, as reflected by General Petraeus' May 10, 2000, letter to the troops in Iraq. He wrote this: Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. They would be wrong. . . . In fact, our experience in applying the interrogation standards laid out in the Army Field Manual . . . shows that the techniques in the manual work effectively and humanely in eliciting information from detainees. We are indeed warriors. . . . What sets us apart from our enemies in this fight, however, is how we behave. In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with dignity and respect. Military and FBI interrogators, such as Matthew Alexander, Steve Keinman, and Ali Soufan, it appears, are the true professionals. We know now that the ``experienced interrogators'' referenced by Hayden and Mukasey had actually little to no experience. Philip Zelikow, who served in the State Department under the Bush administration, testified in a subcommittee that I chaired. He said the CIA ``had no significant institutional capability to question enemy captives'' and ``improvised'' their program of ``cooly calculated dehumanizing abuse and physical torment.'' In fact, the CIA cobbled its program together from techniques used by the SERE Program, designed to prepare captured U.S. military personnel for interrogation by tyrant regimes who torture not to generate intelligence but to generate propaganda. Colonel Kleinman submitted testimony for our hearing, in which he stated: These individuals were retired military psychologists who, while having extensive experience in SERE (survival, evasion, resistance, and escape) training, collectively possessed absolutely no firsthand experience in the interrogation of foreign nationals for intelligence purposes. To the proud, experienced, and successful interrogators of the military and the FBI, I believe Judge Mukasey and General Hayden owe an apology. Finally, we were told that torturing detainees was justified by American lives saved--saved as a result of actionable intelligence produced on the waterboard. That is the clincher, they stay--lives saved at the price of a little unpleasantness. But is it true? That is far from clear. FBI Director Mueller has said he is unaware of any evidence that waterboarding produced actionable information. Nothing I have seen convinces me otherwise. The examples we have been able to investigate-- for instance, of Abu Zubaida providing critical intelligence on Khalid Shaik Mohammed and Jose Padilla--turned out to be false. The information was obtained by regular professional interrogators before waterboarding was even authorized. As recently as May 10, our former Vice President went on a television show to relate that the interrogation process we had in place produced from certain key individuals, such as Abu Zubaida--he named him specifically--actionable information. Well, we had a hearing inquiring into that, and we produced the testimony of the FBI agent who actually conducted those interrogations. Here is what happened. Abu Zubaida was injured in a firefight and captured in Afghanistan. He was flown to an undisclosed location for interrogation. The first round of interrogation conducted professionally by Soufan and his assistant from the CIA produced such significant intelligence information that a jet with doctors on it was scrambled from Langley--from this area--and flown to the undisclosed location so that the best medical care could be provided to Abu Zubaida so he could continue to talk. That was the first round of information. In the second interrogation, conducted consistent with professional interrogation techniques, Abu Zubaida disclosed that the mastermind of the 9/11 attacks was Khalid Shaik Mohammed. That may be the apex piece of intelligence information we have obtained during the course of the conflict. At that point, the private contractors arrived, and for some reason Abu Zubaida was handed over to them so they could apply their enhanced interrogation techniques. Ali Soufan testified that at that point they got no further information. What triggered the first round of information was that Soufan knew about Zubaida's pet name that his mother used for him. When he used that nickname, Zubaida fell apart. He didn't know how to defend himself, and he began to disclose this very important information. Knowledge, outwitting people, playing on mental weaknesses, taking advantage of our skills as Americans--that is what worked and got the information about Mohammed. He was turned over to the private contractors for enhanced techniques and they got nothing. It was then determined that because the interrogation had become unproductive, he should be returned to the FBI agent and CIA agent who had twice interrogated him. It was in the third round that he disclosed information about Jose Padilla, the so-called dirty bomber, which was so important that Attorney General Ashcroft held a press conference, I believe in Moscow, to celebrate the discovery of this information. Again, for some reason, he was turned back again to the private contractors for the application of more abusive techniques, and again the flow of information stopped. For a third time, he was returned to the FBI and CIA agents again for professional interrogation, but by now he had been so compromised by the techniques, even they were unsuccessful in getting further information. As best as I have been able to determine, for the remaining sessions of 83 waterboardings that have been disclosed as being associated with this interrogation, no further actionable information was obtained. Yet the story has been exactly the opposite. The story over and over has been that once you got these guys out of the hands of the FBI and the military amateurs and into the hands of the trained CIA professionals, who can use the tougher techniques, that is when you get the information. In this case, at least, the exact opposite was the truth, and this was a case cited by the Vice President by name. The costs of this could be high. There has been no accounting of the wild goose chases our national security personnel may have been sent on by false statements made by torture victims seeking to end their agony; no accounting of intelligence lost if other sources held back from dealing with us after our dissent into what Vice President Cheney refers to as the ``dark side''; no accounting of the harm to our national standing or our international good will from this program; no accounting of the benefit to our enemies' standing--particularly as measured in militant recruitment or fundraising; and no accounting of the impact this program had on information sharing with foreign governments whose laws prohibit such mistreatment. At the heart of all these falsehoods lies a particular and specific problem: The ``declassifiers'' in the U.S. Government are all in the executive branch. No Senator can declassify, and the procedure for the Senate as an institution to declassify something is so cumbersome that it has never been used. Certain executive branch officials, on the other hand, are at liberty to divulge classified information. When it comes out of their mouth, it is declassified because they are declassified. Its very utterance by those requisite officials is a declassification. What an institutional advantage. The executive branch can use, and has used, that one-sided advantage to spread assertions that either aren't true at all or may be technically true but only on a strained, narrow interpretation that is omitted, leaving a false impression, or that sometimes simply supports one side of an argument that has two sides--but the other side is one they don't want to face up to and don't declassify. One can hope the Obama administration will be more honorable. I suspect and believe they will be. But the fact is that a cudgel that so lends itself to abuse will some day again be abused, and we should find a way to correct that imbalance. It is intensely frustrating to have access to classified information that proves a lie and not be able to prove that lie. It does not serve America well for Senators to be in that position. Chairman Levin has already done excellent work in the Armed Services Committee, and there is no reason to believe that good work won't continue. Chairman Rockefeller has done excellent work in the Intelligence Committee, and his successor, Senator Feinstein, has picked up the mantle and continues forward with energy and determination. We can be proud of what she is doing. Chairman Leahy has begun good work in the Judiciary Committee, and more will ensue when we see the report of the Department of Justice Office of Professional Responsibility about what went wrong in the Office of Legal Counsel. The new administration, I hope and expect, is itself drilling down to the details of this sordid episode and not letting themselves be fobbed off with summaries or abridged editions. In short, a lot is going on, and a lot should be going on. While it is going on, I want my colleagues and the American public to know that measured against the information I have been able to gain access to, the story line we have been led to believe--the story line about waterboarding we have been sold--is false in every one of its dimensions. I ask that my colleagues be patient and be prepared to listen to the evidence when all is said and done before they wrap themselves in that story line. I thank the Presiding Officer. I know the hour is late. I appreciate his courtesy.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, it is always a pleasure to hear the Senator from Oklahoma discussing health care, which I know is very dear to him. So I did not feel my time was wasted listening to him speak on that subject, and I wish him a good evening as well. Mr. President, I ask unanimous consent, if I may, to speak in morning business, but to exceed the 10-minute rule.

Mr. WHITEHOUSE. I do not object. It will be the last extension?

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, the Boston Tea Party is one of the celebrated events in American history. From a young age, Americans learn the story of the men who crept onto British ships moored in Boston harbor on December 16, 1773, to toss overboard shipments of tea that the English sought to tax. These Massachusetts patriots yearned for liberty, opposed ``taxation without representation,'' and stepped into history books with this simple act of defiance. But conspicuously absent from too many of those same history books is a group of Rhode Island men who took on the British Crown in a bold, insubordinate gesture matching the temper of their bold and insubordinate colony more than a year earlier than the Boston Tea Party. This evening, I would like to share the story of the H.M.S. Gaspee, a daring group of Rhode Islanders, and the real beginning of the fight for American independence. In the early 1770s, as tensions between England and her American colonies grew increasingly strained, King George III stationed the H.M.S. Gaspee, under the command of Lieutenant William Dudingston, in the waters of Rhode Island. Its mission was to search incoming ships for smuggled goods and contraband and to enforce the payment of taxes. On June 9, 1772, 237 years ago tonight, 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, CAPT Benjamin Lindsey refused and continued on his course, despite warning shots fired by the Gaspee. Under full sail and into a falling tide, the Hannah pressed north up Narragansett Bay with the Gaspee in hot pursuit. Overmatched in size, Captain Lindsey found advantage in guile and in his greater knowledge of Rhode Island waters. He led the Gaspee to the shallow water of Pawtuxet Cove. There, the lighter Hannah sped over the shallows, but the heavier Gaspee ran aground in the shallow waters off Namquid Point. The Gaspee was stuck, until the higher tides of the following day would lift her from the mud. Captain Lindsey proceeded on his course to Providence, where he met with a group of Rhode Islanders, including John Brown, a community leader whose family helped found Brown University. The two men arranged for a meeting of local patriots at Sabin's Tavern, on what is now Providence's east side, later that evening. At the meeting, the assembled Rhode Islanders decided to act. The HMS Gaspee was a symbol of their oppression and she was helplessly stranded in Pawtuxet Cove. The opportunity was too good to pass up. That night, there was no moonlight on the waters of Pawtuxet Cove. The Gaspee lay silent on the sandbar. Down the bay from Providence came 60 men in longboats, led by John Brown and Abraham Whipple, armed and headed through those dark waters for the Gaspee. When 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. That was all these Rhode Islanders needed to hear, and they rushed the Gaspee and forced their way aboard her. In the violent melee, Lieutenant Dudingston was shot in the arm by a musket ball. Rhode Islanders had drawn the first blood of the conflict that would lead to American independence, right there in Pawtuxet Cove, 16 months before the ``Tea Party'' in Boston. Brown and Whipple's men seized control of the Gaspee from its British crew and transported the captive Englishman safely to shore. They then returned to the abandoned Gaspee to set her afire and watched as the powder magazine exploded, blowing the ship apart and leaving her remains to burn to the water line. That historic location is now called Gaspee Point. Since that night in June, 237 years ago tonight when the Gaspee burned, Rhode Islanders have marked the event with celebration. This year, as I do every year, I will march in the annual Gaspee Days Parade in Warwick, RI. Every year, I think about what it must have been like to be among those 60 men: muffled oars on dark waters; comrades pulling with voices hushed; a shouted demand, the indignant response, and then a pell-mell rush to clamber aboard; the oaths and shouts of struggle, gun shots and powder smoke, the clash of sword and cutlass; and when it was over, the bright fire of the ship in the night, the explosion turning night to day and reverberating across the bay and the hiss and splash as the pieces fell and the water claimed the flames. I hope that one day the tale of the brave Rhode Islanders who stormed the HMS Gaspee will be remembered among the other stories of the Revolution and that they will be given their due place in our Nation's history beside the tea partiers of Boston. I hope, frankly, on an annual basis, to come back to this floor and relate that story over and over and over again. It is a proud part of Rhode Island's heritage.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of H.J. Res. 40, which was received from the House.

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

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 176, submitted earlier today.

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that 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 that any statements relating to the resolution be printed in the Record.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that on Wednesday, June 10, following a period for morning business, the Senate then resume consideration of H.R. 1256, and all postcloture time having expired, there then be an hour of debate only prior to a vote on the motion to invoke cloture on H.R. 1256, with the time equally divided and controlled between Senators Dodd and Enzi or their designees; that upon the use or yielding back of that time and disposition of amendment No. 1256, the substitute amendment be agreed to and the motion to reconsider be laid upon the table, the bill be read a third time, and the Senate then proceed to vote on the motion to invoke cloture on H.R. 1256; that if cloture is invoked on H.R. 1256, then postcloture time be considered to have begun at 12:05 a.m., Wednesday, June 10, and that all postcloture time continue to run during any recess, adjournment, or period for morning business.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 178 submitted earlier today.

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that 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

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 177, submitted earlier today.

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that 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

Mr. WHITEHOUSE. Mr. President, I now ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 180, submitted earlier today.

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 be printed in the Record.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 179 submitted earlier today.

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that 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 resolution be printed in the Record.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, under the previous order, at approximately 11:30 a.m., the Senate will vote on the motion to invoke cloture on H.R. 1256.

Mr. WHITEHOUSE

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

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that when the Senate completes its business today, it adjourn until 9:30 a.m., tomorrow, Wednesday, June 10; that following the prayer and the 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, and there be a period of morning business for 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 Republicans controlling the first half and the majority controlling the second half; and that following morning business, the Senate resume consideration of H.R. 1256, the Family Smoking Prevention and Tobacco Control Act, under the previous order.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I rise to speak in support of the Family Smoking Prevention and Tobacco Control Act, a bill that will finally give the Food and Drug Administration the authority to regulate tobacco products. This was the first bill for which I had the honor of voting in my new role as a member of the Health, Education, Labor, and Pensions Committee--the newest member--but it is the result of years of tireless effort by members of this committee and by their staffs. I especially commend its primary sponsor, our chairman, Ted Kennedy, who has long been committed to protecting our Nation's children from the dangers of tobacco and nicotine addiction, and Senator Dodd, who is so ably leading that fight in his stead today. I thank them and our colleagues in the House for the efforts that have brought us this bill before the Senate today. This legislation is long overdue and very much needed. Just last month, a three-judge panel of the U.S. Court of Appeals for the DC Circuit unanimously upheld the decision of the district court that the tobacco companies had engaged in racketeering. The court found that for at least 50 years, the companies have knowingly kept information from the American public about the health and safety risks of their products and that they continue to do so today. These companies have worked together to deceive the American public and cannot be trusted to regulate themselves. As generations of customers died from illnesses related to smoking, the tobacco companies have kept their profits up by marketing their products to children through cartoon advertisements, candy flavorings, and sports sponsorships. Public health advocates, lawmakers, prosecutors, and family members who have lost loved ones to the ravages of smoking have attempted to take on the tobacco companies, but they confronted a coordinated effort backed by billions of dollars to protect this deadly business. In the next year, 400,000 Americans will die from smoking-related illness and more than 450,000 children will become daily smokers. Every day, 3,500 kids pick up a cigarette for the first time. Even those who do not smoke still pay a price--$96 billion each year in public and private health expenditures to treat illness caused by smoking. The companies will, of course, point to concessions and payouts over the years, but it is clearly not enough. As we work to reform our broken health care system, we cannot ignore this public health menace. That is why it is vital that we finally pass this legislation. The FDA is the agency most prepared to take on the regulatory, scientific, and public health challenges created by tobacco products. This carefully crafted compromise bill gives FDA the tools necessary to take on the tobacco companies in three major areas: advertising and sales to young people, the composition of cigarettes, and representations of health effects of tobacco products. We have wasted too much time fighting the same battles over the same issues for years. This legislation finally enacts tough but constitutionally sound regulations on advertising targeted toward young people. It puts a warning label on every pack of cigarettes that covers 50 percent of each side of the package. The companies will finally have to disclose the content of tobacco products, and FDA will have the authority to regulate hazardous ingredients. Tobacco product manufacturers will no longer be able to make unsubstantiated claims about their products--FDA will have to verify any health claim based on its impact on the population as a whole in order to protect tobacco users and potential tobacco users. This will be paid for by the tobacco product manufacturers and importers themselves, taking no resources away from the FDA's other vital missions. So many of us have been touched by the ravages of smoking and lost family and friends. Yet we still see too many young people become addicted to cigarettes or pick up the newest smokeless tobacco product without knowing the real risks to their health. We cannot leave this to court settlements or to the industry itself. We have been waiting for 50 years, and the evidence shows we are still being deceived. Regulation is long past due. This bipartisan bill, with the support of over 1,000 public health, faith, education, and children's organizations, is the best opportunity to help protect our children from the menace of tobacco. We have delayed long enough. I again thank Chairman Kennedy, Senator Dodd, and my colleagues on the HELP Committee for their hard work bringing this bill to the floor and getting us closer than any other point in the long history of this legislation to finally seeing the effective regulation of tobacco products. I yield the floor and suggest the absence of a quorum.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. I ask unanimous consent that all time in morning business be yielded back.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I suggest the absence of a quorum.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I rise to speak on an amendment that I intend to offer, cosponsored by Senators Durbin and Sanders, which would complement the Credit Card Act by restoring to each of the 50 States the power to enforce maximum interest rates against out-of-State lenders. I urge my Republican colleagues to attend to this as well because I know they have taken a particular interest over the years in the sovereign power of the State, what a constitutional scholar would call the Doctrine of Federalism, and this is certainly an important step in that direction. The bill we are debating this week will make enormous advances in banning some of the most egregious credit card tricks and traps that consumers face out there. I commend the distinguished chairman for his heroic, patient, determined work in bringing us to this point. I believe we also need to give State governments the ability to go after the most dangerous trap of all: outrageous and unjustifiable interest rates. I have heard so many stories from countless Rhode Islanders: A missed payment or a late payment turned a reasonable interest rate into a 25- percent or 35-percent penalty rate, and a family suddenly finds itself in a hole it can't climb back out of. Professor Ronald Mann of Columbia University has called this credit card business tactic the ``sweat box.'' Credit card companies have found it profitable to hit their most distressed customers with penalty rates and fees that are designed to sweat out of those customers the maximum monthly payments before the inevitable bankruptcy filing. Prior to 1978, all the way back to the founding of the Republic, States had the ability to prohibit excessive interest rates and to protect their citizens. It is part of our national history. That changed following a U.S. Supreme Court decision in 1978: Marquette National Bank of Minneapolis v. First of Omaha Service Corp. Marquette did not seem like a big case at the time--not a case that would, in practice, end one of the sovereign State's most basic and ancient authorities--to protect their citizens. In Marquette, the Supreme Court interpreted the word ``located''--one word--in the Civil War-era National Bank Act as giving regulatory authority over a loan to the States that was the primary place of business of the bank, as opposed to the State that was the location of domicile of the consumer. It seemed like a technical case, but the meaning of this one-century- old word defined that way has had the effect of crippling the ability of States to effectively police usurious lending practices by out-of- State banks. Following Marquette, credit card lenders realized they could avoid State law consumer protections by reorganizing as national banks and operating their businesses out of a handful of States that either lacked meaningful interest rate restrictions or were willing to toss out their consumer protection laws in order to attract this new business. Thus began the proverbial race to the bottom. Today, it is unusual to find a credit card lender not based in one of the two or three States that have turned weak consumer protection into a profitable industry. My amendment and the bill on which it is based, S. 255, would amend the Truth in Lending Act to legislatively reverse the Marquette decision, restore the historic power of the States, and to make clear that each State has the right to protect its citizens with interest rate restrictions on consumer lending no matter where the lender chooses to locate their physical office. If enacted, Rhode Island, Connecticut, and other States could, once again, as they did for decades--for centuries before Marquette--say ``enough'' to faraway credit card lenders gouging their citizens. As a former State attorney general who was closely involved in consumer protection issues, I feel strongly that States have an important role to play in protecting their citizens from abusive and heavy-handed business practices. This amendment would acknowledge and strengthen that role.