Congressional Record: July 27, 2005 (Senate)
Page S9059-S9086


      PROTECTION OF LAWFUL COMMERCE IN ARMS ACT--MOTION TO PROCEED

[...]

  Mr. KENNEDY. Mr. President, I take a moment to explain the effect of
our proceeding to this gun bill. We are putting aside an important
debate on national security and the needs of our troops in a time of
war. Last Friday I listed a number of the amendments that still were
pending that would affect the National Guard and our Reserve troops and
also provide additional kinds of protections for the service men and
women. The decision by the Republican leadership was that we had spent
enough time on the legislation, even though we chose to spend 2 weeks
earlier in the year on the credit card industry and on bankruptcy and a
similar amount of time on the class action legislation which benefited
special interest groups. The credit card industry will profit about $6
billion more this year than last year because of the actions taken. We
also spent time on the special interest legislation dealing with class
actions. We spent the time on that, but we are not on the Defense
authorization bill.
  We had an important amendment on the whole policy of the
administration in developing new nuclear weapons which has profound
implications in terms of the issues of nuclear proliferation and
nuclear safety. We looked forward to having an opportunity to debate
that issue. That was put aside by the Republican leadership because
they were concerned about a provision that had been introduced to the
Defense authorization bill last Thursday. Senator Levin, Senator Reed,
Senator Rockefeller, and I introduced an amendment to create an
independent commission to examine the administration's policy
surrounding the detention and interrogation of detainees as an
amendment to the Defense authorization bill.
  The response of the White House was instant and negative. The
President announced he would veto the Defense authorization bill, all
$442 billion of it, if it included any provisions to restrict the
Pentagon's treatment of detainees or creating a commission to
investigate detainee operations. No other response could have
demonstrated so

[[Page S9066]]

clearly the urgent need to establish a commission than that this
imperial White House considers itself immune from restraints by
Congress on its powers no matter what the Constitution says.
  It is appalling that the administration is so afraid of the truth
that they are even willing to veto the Defense bill which includes
billions of dollars for our troops, pay raises for our troops, and
funds for armored humvees to protect our troops in Iraq. But the
administration was prepared to veto that legislation because of this
amendment that had been offered by Senator Levin, Senator Reed, Senator
Rockefeller, and myself.
  Now the Senate Republican leaders have pulled the Defense bill from
the floor. It is interesting that Republican leaders hatched this plan
after Vice President Cheney visited with Senate Republicans last week.
He told them the White House does not want votes on amendments to
require an inquiry into their detention policies and practices. The
White House has not only threatened to veto a national defense bill to
avoid accountability, but is preventing us from voting on the issue. It
is already obvious that the administration's detention and
interrogation policy failed to respect the longstanding rules that have
guided our policy in the past, rejecting the collective wisdom of our
career military and State Department officials. In today's newspapers
we see the result of this action once again with the use of dogs
against detainees.
  We need to return to our core values of openness and accountability.
The facts we know so far about torture and other abuses, about
indefinite detention, have already become recruiting tools for
terrorists. But if we act now to uphold our principles, we can end the
outrage, we can end the coverups, and hold officials accountable at the
highest levels. We need to disavow the abuses and harsh techniques. We
need to ensure our actions do not become an excuse for our enemies to
torture American troops when they are captured in the future or to
attack innocent Americans in any part of the world.
  The reports of abuse also undermine our own security efforts at home.
The vast majority of Muslim Americans and Arab Americans are willing to
help identify potential terrorists, help prevent charitable donations
from being misused, and act as eyes and ears of a community uniquely
capable of identifying potential threats. When the reports of abuses go
unanswered, they undermine the community's willingness to provide that
assistance. It is impossible for many Muslim Americans and Arab
Americans to be persuaded to help against such threats if they feel
their own religious beliefs have been targeted.
  The reality is our safety and security depend on accountability. It
is not enough to pretend that problem does not exist, but that is how
the President has responded to the flow of reports about abuses.
Contrary to the protests of the administration, we do not have the
answers we need. So far, we have had 12 separate so-called
investigations of allegations, but not a single report has adequately
examined the role that civilian authorities have played in crafting the
policies that led to our missteps. Twelve investigations and counting,
and the coverup continues.
  The administration and its proxies in the coverup have vilified
anyone who calls for a full inquiry into the policies. They even
stooped to claiming a request for full accounting is somehow a smear
against our troops. The real smear is that the administration continues
to prosecute only a few low-level offenders without holding accountable
the higher-ups who laid the groundwork for all the abuses. The real
disservice to our troops and to our country is done by those who leave
those at the bottom of the chain of command holding the bag while
officials at the top are promoted and rewarded.
  We need a commission independent of political influence to find the
relevant facts, not just the facts that suit the partisan needs of the
administration. We need an investigation of the country's so-called
rendition policy which sends detainees to other countries where torture
is well known. We need answers about the administration's reaction to
FBI complaints about abuse. We need a thorough assessment of the legal
regime that is currently in effect.
  With its willingness to conceal the truth, the administration will
never tell the American people about this practice of rendition on its
own. We need an independent commission to examine our policies and
practices and make appropriate recommendations. The American people
deserve to understand the choices made by this President and to
evaluate them.
  In sum, our interrogation and detention policies need much more
thorough review. In avoiding accountability, the administration has
made it clear it won't accept responsibility for giving our Nation the
clear answers it deserves. As Benjamin Franklin said, half a truth is
often a great lie. Until now we have been fed half truths and coverups
by the administration.
  With the recent veto threat, the White House has declared war on any
full and honest accounting of responsibility. The safety of our troops
and our citizens depends on finding out the whole truth and acting on
it. An independent commission of respected professionals with
backgrounds in law and military policy and international relations is
the only way we can learn the truth about what has happened so we can
end the suppression and establish a policy for the future that is
worthy of our Nation and worthy of our respect of all nations.
  Administration secrecy doesn't stop with their interrogation policy.
This administration has a systematic disregard for oversight and
openness. Government is intended to be ``of the people, by the people,
and for the people.'' Democracy requires informed citizens, and to be
informed, citizens need to have information about the government.
Congress and the executive branch are supposed to be open and
accountable, so the American people know what is being done in their
name. But under the Bush administration, openness and accountability
have been replaced by secrecy and evasion of responsibility. They abuse
their power, conceal their actions from the American people, and refuse
to hold officials accountable.
  No one disputes the necessity of classifying information critical to
protecting our national security--military operations, weapon designs,
intelligence sources, and similar information. But in the post-9/11
world, the administration is making secrecy the norm and openness the
exception. It has used the tragedy of 9/11 to classify unprecedented
amounts of information. Material off-limits to the public has become so
extensive that no other conclusion is possible. The Bush administration
has a pervasive strategy to limit access to information in order to
avoid independent evaluation of its actions by Americans whose job it
is to observe and critique their government. When even Congressmen,
journalists, and public interest groups complain about limits on access
to information, we know the difficulties faced by ordinary Americans
seeking information from their government.
  At a hearing last August in the House Subcommittee on National
Security, the Director of the Government's Information Security
Oversight Office, J. William Leonard, testified that ``it is no secret
that the government classifies too much information. Too much
classification unnecessarily impedes effective information sharing.''
  The Deputy Under Secretary of Defense for Counterintelligence and
Security, Carol A. Haave, said that as much as half of all classified
information doesn't need to be classified.
  Last year, a record 15.6 million documents were classified by the
Bush administration at a cost of $7.2 billion, many under newly
invented categories with fewer requirements for classification.
  The administration argues that all this secrecy is necessary to win
the war on terrorism. But the 9/11 Commission Report said that too much
government secrecy had hurt U.S. intelligence capability even before 9/
11. ``Secrecy stifles oversight, accountability, and information
sharing,'' says the report. They know from their own experience.
  In July 2003, the 9/11 Commission's cochairmen, Thomas Kean and Lee
Hamilton, complained publicly that the administration was failing to
provide requested information.

[[Page S9067]]

  In October 2003, the Commission had no choice, after repeated
requests, but to subpoena records from the FAA.
  In November 2003, after multiple requests, the Commission again had
to subpoena information, this time from the Department of Defense.
  For the rest of that fall and spring, the administration repeatedly
tried to deny access to presidential documents important to the
Commission's investigation, until public outcry grew loud enough to
convince the administration otherwise.
  Key members of the administration balked at testifying, until public
opinion again swayed their stance.
  And then, in an ironic twist, 28 pages of the 9/11 Commission Report
itself was classified. So, is all this secrecy really about protecting
us from the terrorists? Or is it just to avoid accountability?
  This administration, once in office, wasted no time challenging those
who would hold them accountable. In May 2001, Vice President Cheney's
energy task force issued its report recommending more oil and gas
drilling to solve our energy problems. In light of his former
employment at Halliburton, the recommendation was hardly astonishing.
What was astonishing was the Vice President's refusal to identify the
people and groups who helped write the policy. In June 2001, the GAO,
the nonpartisan, investigative arm of Congress, requested information
on the energy task force, following reports that campaign contributors
had special access while the public was shut out. GAO's request was
simple. It asked, ``Who serves on this task force; what information is
being presented to the task force and by whom is it being given; and
the costs involved in the gathering of the facts.'' Considering that
the task force wrote the nation's energy policy, it was not an
unreasonable request.
  The administration refused to comply, even though GAO's request was
not out of the ordinary. President Clinton's task forces on health care
and on China trade relations were both investigated by GAO. The Clinton
administration turned over detailed information on the participants and
proceedings of the task forces.
  But the Bush administration argued that GAO did not have the
authority to conduct the investigation. For the first time in its 80-
year history, GAO was forced to file suit against an administration to
obtain requested information. But the court sided with the
administration in Walker v. Cheney, and GAO's investigative oversight
authority was effectively reduced. Independent oversight is critically
important when one party controls both Congress and the White House,
and GAO is critical to that oversight.
  On October 12, 2001, John Ashcroft wrote a memo outlining the Justice
Department's views on Freedom of Information Act requests. The memo set
the tone for an administration hostile to such requests. It discouraged
executive branch agencies from responding to Freedom of Information Act
requests, even when the agencies had the option to respond. He
basically reversed the longstanding policy of prior administrations.
  The Clinton administration policy, set forth by Attorney General
Janet Reno, was that if a document could be released without harm, an
agency should do so, even if there were technical grounds for
withholding it. They knew that government openness was essential to an
informed public.
  When the Bush administration came to office, Attorney General
Ashcroft disagreed--he wrote that if there is any technical ground for
withholding a document under the Freedom of Information Act, an agency
should withhold it. The Clinton policy had been ``release if at all
possible.'' The Bush policy was ``keep secret if at all possible.''
  Why should the public know what the administration is doing? Why
release documents that might be embarrassing to the White House or its
friends in business?
  Some organizations claim, based on their experience, that this
obsession with secrecy goes even farther, and that executive branch
agencies are being told to withhold information until it is subpoenaed.
Sean Moulton, a senior policy analyst at OMB Watch, argued that ``if
there are documents the government doesn't want to release but doesn't
have any legal basis for withholding, unless you're willing to go to
court, you're not getting those documents.''
  Since the tragedy of September 11, this administration has
effectively shut down inquiry after inquiry:
  In November 2001, energy companies were planning a natural gas
pipeline through the Blue Ridge Mountains of Virginia. Local citizens,
led by former U.S. Army Ranger Joseph McCormick, asked the Federal
Energy Regulatory Commission for a map of the planned pipeline. These
citizens weren't being nosy--they wanted to know if a large new
pipeline for natural gas would be going through their backyards. FERC
denied the citizens' request in the name of national security, even
though this type of information had been public before 9/11. Clearly,
national security concerns are legitimate. But without knowledge of the
pipeline's location, how could these citizens defend their property?
Joseph McCormick put it bluntly: ``There certainly is a balance,'' he
said. ``It's about people's right to use the information of an open
society to protect their rights.''
  In the fall of 2002, the chemical compound perchlorate was found in
the water supply of Aberdeen, Maryland--near the Army's famous Aberdeen
Proving Ground. Perchlorate is a main ingredient of rocket fuel. It
also stunts the metabolism and brain growth of newborns. A group of
citizens organized, and worked with the Army to protect their drinking
water from further contamination. But a few months later, the Army
began censoring maps and information that would help determine which
areas were contaminated, supposedly in the interest of national
security--if citizens could find out where the water was contaminated,
then terrorists could find it too. The head of the citizens' group was
a 20-year army veteran. His water well was only a mile and a half away
from the proving ground. ``It's an abuse of power,'' he said. ``The
government has to be transparent.''
  Even Members of Congress have had to subpoena information in order to
do their work. Last October, Congressmen Christopher Shays and Henry
Waxman, the chairman and ranking Democrat on the House Government
Reform Subcommittee on National Security, Emerging Threats and
International Relations, asked for an audit of the Development Fund for
Iraq. The copy they received had over 400 items blacked out. They had
so much difficulty obtaining an unredacted report from the Defense
Department that they had to prepare a subpoena. Once they finally
received an unredacted copy, guess what had been blacked out? More than
$218 million in charges from Halliburton. So far, no one has been held
accountable.
  It has now been 744 days without a White House investigation into the
CIA leak case. It took 85 days for the administration even to require
its staff to turn over evidence relating to the leak. Senate
Republicans held 20 hearings on accusations against President Clinton
and the Whitewater case, but they have held zero hearings on the leak
of the covert identity of CIA agent Valerie Plame. So far, no one has
been held accountable.
  Last week, the Defense Department refused to cooperate with a federal
judge's order to release secret photographs and videotapes of prisoner
abuse at Abu Ghraib. The ACLU had sued to obtain release of 87
photographs and 4 videotapes, but the administration filed sealed
documents resisting the order. They are so obsessed with secrecy that
they even make secret arguments to keep their secrets. So far, no one
has been held accountable.
  Also last week, the administration submitted an initial report on
progress in training Iraqi security forces. It has been more than 2
years since the fall of Baghdad, and a reliable assessment of our
progress in training those forces was long overdue. The key questions
that the American people want to know are how many Iraqi security
forces are capable of fighting on their own and what our military
requirements will be the months ahead. But the answers remain
classified. The American people deserve to know the facts about our
policy. They want to know how long it will take to fully train the
Iraqis and when our military mission will be completed. They can deal
with the truth, and they deserve it.

[[Page S9068]]

  No one wants to do anything that would help the insurgents. But the
administration must do a better job of responding to the legitimate
concerns of the American people. The administration still isn't willing
to be candid. It needs to find a way to shed some of the secrecy and
answer these questions in good faith for the American people. The
silence is deafening.
  There is also a pattern of withholding information from members of
Congress on the administration's nominations. In 2003, Miguel Estrada
was nominated for a Federal judgeship. We requested legal memoranda he
wrote as Assistant Solicitor General, and we were repeatedly denied. In
2004, Alberto Gonzales was nominated to be Attorney General. We
requested various memoranda he authorized on administration torture
policy, and we were repeatedly denied. Earlier this year, John Bolton
was nominated to be Ambassador to the United Nations. We requested
documents to determine if he acted appropriately in his previous job,
and we have been repeatedly denied.
  Instead of coming clean and providing the information to the
Congress, we have been stonewalled. Our questions have gone unanswered.
And now, the President appears to be poised to abuse his power further,
rub salt in the wound, and send John Bolton to the United Nations
anyway with a recess appointment of dubious constitutionality.
  Now John Roberts has been nominated to a lifetime seat on the Supreme
Court. We hope this nomination will not be another occasion for
administration secrecy, but press accounts suggest otherwise. Even
before we asked for any documents, the administration announced it will
not release many of the memoranda written by John Roberts. The White
House spokesman says they will claim attorney-client privilege, but
many of the memos vital to our consideration of Judge Roberts for the
Supreme Court were written while he worked as a top political and
policy official in the Solicitor General's office. That office works
for all the American people--not just the President. Attorney-client
privilege clearly has never been a bar to providing the Senate with
what it needs to process a nomination.
  As we all know, no one is simply entitled to serve on the Supreme
Court of the United States. One has to earn that right. And one earns
that right by getting the support of the American people, reflected in
the vote here in the United States Senate. And that is what the
confirmation process is all about. We know that the administration is
familiar with and aware of Judge Roberts' positions on various issues.
They have had a year to study it and had their associates talk with him
and with those who worked with him. The real question is: Shouldn't the
American people have the opportunity to get the same kind of
information so that they can form their own impression and so that the
Senate can make a balanced, informed judgment and see whether or not
the balance in the Supreme Court will be furthered? That is the issue
and it appears that the administration is continuing to withhold
important information that would permit the Congress the ability to do
so.
  Yes, the administration has consistently used the horror of 9/11 and
its disdain of congressional oversight to get its way and avoid
accountability. It consistently uses this secrecy to roll back the
rights of average Americans. But even its best spin doctors can't
conceal some of the administration's most flagrant abuses of power.
  Last August, the New York Times reported that ``health rules,
environmental regulations, energy initiatives, worker-safety standards
and product-safety disclosure policies have been modified in ways that
often please business and industry leaders while dismaying interest
groups representing consumers, workers, drivers, medical patients, the
elderly and many others.'' Often, this has been done in silence and
near secrecy.
  In 2000, Congress responded to the disclosure of defects in Firestone
tires, which may have been responsible for as many as 270 deaths, by
passing legislation which would make information on auto safety and
related defects readily available. But in July 2003, the National
Highway Traffic Safety Administration decided that reports of defects
would cause ``substantial competitive harm'' to the auto industry, and
exempted warranty claims and consumer complaints from the Freedom of
Information Act. Clearly, that was another abuse of power that protects
big business while putting the American public at greater risk.
  In 2003, the administration knowingly withheld cost estimates of its
Medicare prescription drug bill--one of the most important pieces of
legislation that year. The estimates showed costs over $100 billion
more than the administration claimed, but the information was withheld
because of fears that the actual numbers would persuade Members of
Congress to vote no. Administration officials threatened to fire Chief
Actuary Richard Foster ``so fast his head would spin,'' if he informed
Congress of the real cost estimate. I wrote a letter to the
administration on this subject, but they never responded to my
questions.
  In 2003, the Food and Drug Administration kept secret a report that
children on antidepressants were twice as likely to be involved in
suicide-related behavior. The FDA also prevented the author of the
study--their expert on the issue--from presenting his findings to an
FDA advisory committee. Dr. Joseph Glenmullen, a Harvard psychiatrist,
said ``Evidence that they're suppressing a report like this is an
outrage, given the public health and safety issues at stake . . . For
the FDA to issue an ambiguous warning when they had unambiguous data
like this is an outrage.''
  In November 2003, the White House told the Appropriations Committees
in both Houses of Congress that it would only respond to requests for
information if they were signed by the committee chairman. In a time of
one-party rule, this tactic made congressional oversight almost
completely impossible.
  In April 2004, the ranking member of the Environment and Public Works
Committee, Senator Jeffords, was forced to place holds on several EPA
nominees after the administration refused to respond to twelve
outstanding information requests, including information on air
pollution.
  In August 2004, under pressure from the Department of Homeland
Security, the FCC decided to make telephone service outage reports
confidential, and exempt them from Freedom of Information Act requests.
The FCC argued it was because companies could use competitors' service
outages in ad campaigns. You may not be able to make informed decisions
on your phone company, but at least the company will be protected from
nasty advertising.
  Last month, we discovered that the administration had blocked studies
criticizing the Central American Free Trade Agreement--after it had
already paid for them. In 2002, the Department of Labor hired the
International Labor Rights Fund to back up its argument that Central
American countries had improved on labor issues. The contractor found
the opposite, and posted its results on its Web site in March 2004. The
Labor Department ordered its removal from the website, banned its
release, and barred the contractor's employees from discussing the
report. The Department of Labor denied a Congressman's request for the
report under the Freedom of Information Act. These are the American
people's tax dollars. But when the administration didn't like an
answer, it abused its power to avoid accountability--at their expense.
  Yesterday, the Wall Street Journal disclosed yet another list of
abuses in Iraq reconstruction. Ten billion dollars of no-bid contracts
were awarded; $89 million was doled out without contracts at all; $9
billion is unaccounted for, and may have been embezzled. An official
fired for incompetence was still giving out millions of dollars in aid,
weeks after his termination. A contractor was paid twice for the same
job. A third of all U.S. vehicles that Halliburton was paid to manage
are missing. It is a staggering display of incompetence and cover-up,
so that no one will be held accountable.
  Americans deserve better. They deserve the information necessary to
become informed, effective citizens. We as lawmakers are better able to
represent our constituents when we have access to the critical
information held by the executive branch. We must never forget who we
work for--the American people. Congress is a co-equal branch of
government, and we

[[Page S9069]]

have a duty to hold the administration accountable for its actions.
  Mr. President, on the matter we have before the Senate at the present
time, here we go again on the issue of legal immunity for the gun
industry. Without shame, the Republican leadership has brought back
this special interest, anti-law enforcement bill that strips away the
rights of victims to go to court.
  Why the urgency to take up this bill now? This is a critical moment
in this country's future. Surely, the Republican leadership can take
some time to address other priorities before attempting to give a free
pass to the gun industry. Why aren't we completing our work on the
Defense authorization bill? That is what was before the Senate. Why
have we displaced a full and fair debate on the issue of the Defense
authorization bill--which has so many provisions in there concerning
our fighting men and women in Iraq and about the National Guard and
defense--in order to consider special interest legislation?
  That is what is before the Senate, and that is what we are
considering at the present time, as a result of the Republican
leadership. Surely, the Congress can do more for our citizens than rush
to pass unprecedented special interest legislation. We can and should
be acting to meet our real challenges.
  Last year, the Federal Government recalled a water pistol, the Super
Soaker, just a few days before the assault weapons ban expired. America
does more to regulate the safety of toy guns than real guns, and it is
a national disgrace. The gun industry has worked hard to avoid Federal
consumer safety regulation. Where are our priorities? Where is the
logic in passing a bill that makes it harder to sue for harm caused by
real guns than harm caused by a plastic toy gun?
  The industry has conspicuously failed to use technology to make guns
safer. It has attempted to insulate itself from its distributors and
dealers, once guns leave the factory. Under this bill, it will not even
matter if the guns are stolen by factory employees and snuck out of the
factory in the middle of the night.
  The overwhelming majority of Americans believe gun dealers and gun
manufacturers should be held accountable for their irresponsible
conduct, similar to everyone else.
  Cities, counties, and States incur billions of dollars in costs each
year as a result of gun violence. Studies estimate that the public cost
of firearm-related injuries is over $1 million for each shooting
victim. Yet this bill would take a fierce toll and dismiss even pending
cases where communities are trying to get relief.
  This bill would bar the legal rights of hard-working law enforcement
officers, such as Ken McGuire and David Lemongello. These two police
officers from Orange, NJ, were seriously wounded in a shootout with a
burglary suspect. The gun used by the suspect was one of 12 guns sold
by a West Virginia pawnshop to an obvious straw purchaser for an
illegal gun trafficker. Fortunately for the officers, this bill did not
become law last year, and their case was able to proceed.
  Recently, David Lemongello was able to obtain a $1 million
settlement. Significantly, the settlement required the dealer and other
area pawnshops to adopt safer practices. These reforms go beyond the
requirements of current law and are not imposed by any manufacturers or
distributors. This is not about money. This is about public safety, and
I commend these brave officers for their courageous battle to change
the system.
  It is clear what will happen if Congress gives the gun industry this
unprecedented legal immunity, on top of its existing exemption from
Federal consumer safety regulations. Guns will be more dangerous. Gun
dealers will be more irresponsible. More guns will be available to
terrorists and criminals. There will be more shootings and more dead
children.
  The Nation's response to this death toll has been unacceptable. Yet,
year after year, little changes in our approach to regulating guns. How
can we justify this neglect? How can we continue to ignore the vast
discrepancy in gun deaths in the United States compared to other
nations? How can we possibly justify this effort to give the gun
industry even greater protection for irresponsible behavior?
  Mr. President, this bill is nothing short of Congress aiding and
abetting the provision of guns to criminals. It takes the gun industry
off the hook when their guns are sold to the wrong people who are out
to hurt us. Under this administration, we have seen the budget cuts to
the Bureau of Alcohol, Tobacco and Firearms, so our law enforcement do
not have the resources they need to keep guns out of criminal hands.
That is why these citizen lawsuits are so important. If the police
cannot do their job, then citizens should be able to do it. But this
legislation will throw the citizens out of court. It is wrong.
  I yield the floor.

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