SUPPLEMENTAL APPROPRIATIONS ACT, 2009 -- (Senate - May 21, 2009)
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Mr. CORNYN. I appreciate it. Thank you very much, Mr. President.
AMENDMENT NO. 1139
Mr. President, I want to address the Senate on two subjects this afternoon--first of all, on the subject of various memos and interrogation techniques, notably enhanced interrogation techniques, that were carried out in response to Office of Legal Counsel memos that were written by lawyers there, designed to provide guidance to our CIA interrogators after 9/11 to help them protect the country against future terrorist attacks.
I have an amendment that, because of technical reasons, we will not be able to vote on this week. But I want to assure my colleagues this issue is not going away, and we will be back to talk about it more later. But I think it is of sufficient gravity and importance that I want to highlight it here for the next few minutes.
First of all, this amendment I am referring to is a sense-of-the-Senate amendment. Let me summarize what it does because I think it is important to put it in context.
The sense-of-the-Senate amendment reads as follows. It says:
In the aftermath of the September 11, 2001 attacks, there was bipartisan consensus that preventing further terrorist attacks [against] the United States was the most urgent responsibility of the United States Government.
A bipartisan joint investigation by the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives concluded that the September 11, 2001 attacks demonstrated that the intelligence community had not shown ``sufficient initiative in coming to grips with the new transnational threats''.
By mid-2002, the Central Intelligence Agency had several top al Qaeda leaders in custody.
The Central Intelligence Agency believed that some of these al Qaeda leaders knew the details of imminent plans for follow-on attacks against the United States.
The Central Intelligence Agency believed that certain enhanced interrogation techniques might produce the intelligence necessary to prevent another terrorist attack against the United States.
The Central Intelligence Agency sought legal guidance from the Office of Legal Counsel of the Department of Justice as to whether such enhanced interrogation techniques, including one that the United States military uses to train its own members in survival, evasion, resistance, and escape training, would comply with United States and international law if used against al Qaeda leaders reasonably believed to be planning imminent attacks against the United States.
This amendment further notes that:
The Office of Legal Counsel is the proper authority within the executive branch [of the Federal Government] for addressing difficult and novel legal questions, and providing legal advice to the executive branch in carrying out [its] official duties.
It further notes that:
Before mid-2002, no court in the United States had [ever] interpreted the phrases ``severe physical or mental pain or suffering'' and ``prolonged mental harm'' as used in sections 2340 and 2340A of title 18, the United States Code.
The legal questions posed by the Central Intelligence Agency and other executive branch officials were--
This amendment notes-- a matter of first impression, and in the words of the Office of Legal Counsel, ``substantial and difficult''.
The Office of Legal Counsel approved the use by the Central Intelligence Agency of certain enhanced interrogation techniques, with specific limitations, in seeking actionable intelligence from al Qaeda leaders.
The amendment further notes that:
The legal advice of the Office of Legal Counsel regarding interrogation policy was reviewed by a host of executive branch officials, including the Attorney General, the Counsel to the President, the Deputy Counsel to the President, the General Counsel of the Central Intelligence Agency, the General Counsel of the National Security Council, the legal advisor of the Attorney General, the head of the Criminal Division of the Department of Justice, and the Counsel to the Vice President [of the United States].
Further, the amendment notes that:
The majority and minority leaders in both Houses of Congress,--
Both in the Senate and in the House, as well as-- the Speaker of the House of Representatives, and the chairmen and [ranking members] of [both] the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives received classified briefings on [both the proposed techniques and the Office of Legal Counsel advice] as early as September 4, 2002.
The amendment further notes that:
Porter Goss, then-chairman of the Permanent Select Committee on Intelligence of the House of Representatives, recalls that he and then-ranking member Nancy Pelosi ``understood what the CIA was doing'' [and] ``gave the CIA our bipartisan support'' [and] ``gave the CIA funding to carry out its activities'', and ``On a bipartisan basis ..... asked if the CIA needed more support from Congress to carry out its mission against al Qaeda''.
The amendment further notes that:
No member of Congress briefed on the legal analysis of the Office of Legal Counsel and the proposed interrogation program of the Central Intelligence Agency in 2002 objected to the legality of the enhanced interrogation techniques, including ``waterboarding'', approved in legal opinions of the Office of Legal Counsel.
The amendment further notes that:
Using all lawful means to secure actionable intelligence based on the legal guidance of the Office of Legal Counsel [of the Department of Justice] provides national leaders a means to detect, deter, and defeat further terrorist [attacks] against the United States [of America].
The amendment further notes that:
The enhanced interrogation techniques approved by the Office of Legal Counsel have, in fact, accomplished the goal of providing intelligence necessary to defeating additional terrorist attacks against the United States.
It further notes that:
Congress has previously established a defense for persons who engaged in operational practices in the war on terror in good faith reliance on advice of counsel that [such] practices were lawful.
This amendment further notes that:
The Senate stands ready to work [on a bipartisan basis] with the Obama Administration to ensure that leaders of the Armed Forces of the United States and the intelligence community continue to have the resources and tools required to prevent additional terrorist attacks on the United States.
This amendment concludes with this finding or sense of the Senate:
It is the sense of the Senate that no person who provided input into the legal opinions by the Office of Legal Counsel of the Department of Justice analyzing the legality of the enhanced interrogation program, nor any person who relied in good faith on [that legal advice], nor any member of Congress who was briefed on the enhanced interrogation program and did not object to the program going forward should be prosecuted or otherwise sanctioned.
This is the amendment I sought to offer that for technical reasons is not going to be voted on now. But, I assure my colleagues, we will revisit this at a later date.
I want to take issue with some of the comments by my distinguished colleague from Illinois, the majority whip, who I believe--it was yesterday, or maybe the day before--said there was no basis for my assertion that there was actionable intelligence gained from the so-called enhanced interrogation techniques, and questioned what my source was.
I would remind the distinguished Senator from Illinois that the source is President Obama's Director of National Intelligence, Dennis Blair, who wrote, on April 16, 2009, that ``high-value information came from interrogations in which these methods were used, and provided a deeper understanding of the al Qaeda organization that was attacking this country.''
Mr. President, I ask unanimous consent that the letter in which the Director of National Intelligence made those statements be printed in the Record following my comments.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. CORNYN. Nor was this special information available to only a few. The New York Times reported it on April 21, under the headline ``Banned Techniques Yielded `High-Value information', Memo Says.'' That is a story in the New York Times which basically recounts what the Director of National Intelligence said.
I would remind my distinguished colleague from Illinois that it is, in fact, the Director of National Intelligence for President Obama who has affirmed not just the need but the usefulness of the information and intelligence derived from these enhanced interrogation techniques that were approved by the legal authority for the executive branch of the Federal Government, the Office of Legal Counsel.
My colleague from Illinois, Senator Durbin, argues that we need to allow prosecutors to follow the facts and the law wherever they may lead--certainly, a relatively harmless assertion; one I would generally agree with. But here, we know enough about the facts and the law to know there is no evidence that anyone acted with the intent required to prosecute under the law.
I won't bore the Senate with an analysis of what the criminal law requires in this context, but I would say that the facts, as we know them, are to give our public servants the benefit of the doubt. As detailed in the Office of Legal Counsel memoranda, significant efforts were made to minimize significant harm that could arise from these techniques. Who could question the desire of both the intelligence community as well as the Department of Justice and the leaders responsible for protecting our national security--who could question the good-faith need to get information that would actually help prevent follow-on terrorist attacks?
We know al-Qaida, on September 11, 2001, used crude weapons to attack our country. Yet they were able to kill 3,000 Americans, roughly. Our intelligence community and our national leadership knew al-Qaida was not satisfied with such primitive weapons but, indeed, was seeking biological, chemical or nuclear weapons. We know how important it was for our intelligence officials to get the information they needed. We know the lawyers at the Office of Legal Counsel who rendered this legal advice were doing what they thought was their responsibility in good faith. Indeed, the Members of Congress who had the responsibility to perform congressional oversight on these activities, I believe, demonstrated their good-faith desire to do what was necessary to protect our country. I believe we know enough to say these people--all of them--acted in good faith.
It has been suggested the standard we apply is whether the advice fell within the range of legitimate analysis and within the range of reasonable disagreement common to legal analysis of important statutory and constitutional questions. I believe that has been demonstrated, and but for this technical objection to the amendment, I am confident we would receive an overwhelming bipartisan vote of support for this sense-of-the-Senate resolution.
The distinguished Senator from Illinois, Senator Durbin, says we should allow prosecutors and the Department of Justice to decide whether to bring a case against these officials: The intelligence community, the lawyers who drafted the legal advice, and perhaps even the Members of Congress who acquiesced and facilitated these enhanced interrogation techniques following a classified briefing. But I would suggest there is no case to be brought against these individuals. Any prosecution that arises out of this interrogation program would clearly be based upon politics and not on the law.
I would submit the amendment I have offered--and that I described and which I will reoffer again at an appropriate time--is a call for reasonableness and national unity. The calls for prosecution of good-faith patriots has simply gone too far. When bloggers and others--not to single out bloggers but even Members of this body--have suggested that we somehow need a truth commission and have suggested that prosecutions might be the appropriate outcome, when they are suggesting that prosecutions under these circumstances occur, then I think our political environment has changed in a dangerous way and one which will certainly chill our intelligence officials in gathering actual intelligence necessary to keep us safe and certainly discourage patriots who want to serve and who are willing to serve in Government. When policy differences become criminalized in ways that some have suggested, it is not helpful to our country. Indeed, I think it is dangerous to our national security.
We know there is an unfortunate history of hysterias, panics, and mob rule from time to time that occurs, whether it is from Salem through the McCarthy era. When justice is steered by passion and politics rather than by reason and the rule of law, it is not worthy of the name ``justice.'' Once you stir up an angry mob, we know it is unpredictable where that mob might lead or who might get caught up in the mob's action. But we know already too many patriotic Americans have been targeted by the present hysteria. This amendment calls for an end to the hysteria and a return to reason, civility, national unity, and the rule of law.
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HEALTH CARE REFORM
Mr. President, I wish to discuss another very serious challenge in our country and that is how to reform our broken health care system to serve the needs of the American people and to help bring down the costs of health care, which now prices many people out of the market and contributes to the too large number of Americans who don't have health insurance.
I am a relatively new member of the Senate Finance Committee, and under the leadership of Senator Baucus and Senator Grassley, we have been discussing our various policy options for some time. There has been some discussion on the floor about the subject. Indeed, my colleagues from Oklahoma and North Carolina, Senator Burr and Dr. Coburn, have introduced a bill which they believe addresses the need for health care reform in a significant way.
On Monday, I am going to return to my State of Texas and travel around the State to basically talk about commonsense solutions to this health care crisis. Last Monday, I spent some time in Houston, TX, with the Houston Wellness Association and others concerned about how we can spend more of
our energy and effort on keeping people healthy and preventing disease which will, of course, avoid unnecessary human suffering but also help us contain the too high price of health care.
We know what is at stake in the health care reform debate. I believe my constituents in Texas--and I believe the American people, generally--don't want to be served up a fait accompli in Washington. They don't want to wake in July or August and find that Congress has taken a blank sheet of paper and basically deprived them of the opportunity to keep the health care they presently have and instead present them with something else which they don't want and which does not promise to make health care more accessible but, rather, will make it more expensive and less accessible. I know my constituents in Texas don't want elites in Washington to make decisions for them. They want to be informed about the debate, and they want to then discuss with me and their other elected representatives what they want--not what is dictated to them from Washington inside the beltway.
Whether you are putting together a family budget or a business plan, we all see the same problem, and that is the rising cost of health care. We know health care costs have risen faster than inflation in both good times and bad times. Health care costs, we know, force many self-employed workers and small businesses into the ranks of the uninsured. We also know that health care costs in America are twice as much per capita than they are in most of the developed world. In fact, we spend roughly 17 percent of our gross domestic product on health care. I believe the next highest country to us is Japan, an industrialized country, which spends roughly 9 percent of GDP.
But we also know there are a lot of hidden costs--there are not just the obvious costs--on families and businesses. These hidden costs show up in smaller paychecks for working men and women all across this country. All things being equal, one would think that rising productivity of the American worker would lead to higher wages, but instead, for many workers, more compensation takes the form of higher health care premiums, when they could be receiving greater compensation in terms of wages that they could then spend on other purposes. But because of rising deductibles, copays, and the rising costs, we see rising health care costs actually squeeze worker pay in America such that, in many instances, that pay is stagnant, if not declining.
Hidden costs also show up in the $36 trillion of unfunded liabilities in the Medicare Program, as well as other entitlements. Our people are concerned about the hidden costs of all the borrowing we are doing in Washington and the unprecedented spending. Nearly 50 cents on every dollar spent in Washington is borrowed, leaving the fiscal responsibility for our children and grandchildren and not taking it upon ourselves.
In fact, as we know, the Federal deficit in 2009 will be nearly as large as the entire Federal budget was in 2001. Let me say that again. This is staggering. The Federal deficit in 2009 will be nearly as large as the entire Federal budget in 2001. As the distinguished occupant of the chair, who is the former chief executive of his State, the Commonwealth of Virginia, knows, that kind of growth cannot be sustained indefinitely. Indeed, we are cruising for a disaster when it comes to unrestrained health care costs, both for individuals and for small businesses but also for the Government when it comes to entitlement spending.
I agree with what President Obama said last week. He said our current deficit spending is unsustainable. I agree with that. He said we are mortgaging our children's future with more and more debt. I think all Americans agree with what President Obama said, but we have yet to see the hard decisions that would lead us back to a path of fiscal discipline. It is the contrary: more spending, more borrowing, with no fiscal discipline. As we look at health care reform, our people want solutions that will lower the costs of health care, without increasing the debt, without raising taxes, and without reducing quality or access to care.
I have heard a lot of discussions in the context of the Finance Committee, talking about what options are available to the Congress in dealing with this health care crisis and, honestly, most of them deal with how we can empower the Government to make more and more decisions on behalf of patients. I think that is the opposite direction from which we ought to go to approach this problem. We ought to look at what puts patients back in charge; what gives individuals the power to consult with their own private physician and make a decision; what is in the best interests of themselves and their family when it comes to health care. Let's not put barriers in the way of that sacred relationship between a patient and a doctor, and for sure let's not use rationing--denying and delaying access to care--as government-run programs abroad use in order to control costs.
Let's put patients back in charge. That ought to be our battle cry as we approach this current crisis.
Patients should have more control, not less control, over their own health care. One way we can do that is giving them more and better information on cost and quality of their care. How in the world can we have an effective market for health care, which will provide lower costs, if, in fact, patients are denied access to information about cost and outcomes? They not only want to know how much it is going to cost them; they want to make sure it is a good, quality service, and we ought to be in the business of providing them that information. We ought to be insisting, as their elected representatives, that we have access to that information in deciding how to spend their money in entitlement programs such as Medicare and Medicaid. Patients should also, I believe, have a choice of providers who compete for their business. We know that competition produces higher quality, better service, and a lower price. We can see that across the board. When the market helps discipline spending, it improves quality and lowers price. We can do that in health care by empowering individuals and giving them more access to information, greater transparency, quality, and price, making them better informed consumers.
We also know our tax and our legal system need reform so all Americans are treated fairly. We have to end the cost shifting that now goes with too low reimbursement rates for Medicare and Medicaid, which means it is harder and harder for an individual to find a doctor who will actually accept those submarket rates to care for them.
I was in Dallas a couple years ago. I was in an emergency room at a hospital, while touring the hospital, and there was this wonderful woman who came into the emergency room and someone asked her what she wanted. She said: I need my prescriptions refilled--in the emergency room at a hospital in Dallas. She couldn't find a doctor who would accept her as a new Medicare patient, so the only place she knew where to go was to the emergency room to get a prescription, to refill her medications. That is incredibly inefficient and an incredibly costly way to deliver health care. We have to find a way to do it better.
Right now we know that for private health insurance, the costs are shifted in order for health care providers to provide care to everybody. That cost shifting results in higher premiums, smaller paychecks, tax increases, and more public debt, and we ought to attack it head-on.
We also know from experience that putting patients in charge can lower health care costs. At the Federal level, believe it or not, we actually have a Federal program that, contrary to intuition and some people's skepticism, actually demonstrates this.
This is a success of Medicare Part D, the prescription drug program. Medicare Part D gives seniors choices among entirely private plans, with no government-run plan at all, no ``public option'' at all. As a result of the successes of Medicare Part D, seniors have seen program costs that are 37 percent less than anticipated, and more than 80 percent of seniors are satisfied with the program.
I think this example proves the point I was making earlier--that greater access to information about quality and cost gives people more choices, creates competition in a market that disciplines cost, and ultimately brings down those costs and increases satisfaction.
At the State level, good ideas for Medicaid reform have come from Florida, South Carolina, Indiana, and other States. These programs have given some of the lowest income Americans more choices and more control over the dollars spent on their behalf. Again, costs are lower and participants are generally satisfied with these programs.
The private sector has some very good ideas as well. Steve Burd, of Safeway, has talked to many of us on both sides of the aisle about their successful experimenting with health care costs at their company by providing financial incentives to quit smoking, lose weight, exercise, control blood pressure and cholesterol, and get the appropriate diagnostic tests at a reasonable price.
There is also another successful program, and I am going to meet with executives and employees at Whole Foods, which is located in Austin, TX, where I live. Whole Foods has conducted a successful experiment with high-deductible insurance plans with personal wellness accounts that each employee controls. Whole Foods has seen fewer medical claims, lower prescription drug claims, and fewer hospital admissions through this program.
So why in the world would we want to dictate a single-payer system out of Washington for 300 million people when we have seen successful experiments and innovation across the country that we can learn from and adopt to empower patients and consumers, not Washington bureaucrats? Some, though, in Washington have simply given up on the private sector when it comes to delivering health care needs. They want to shift more power and control to the Federal Government. I think that is a terrible mistake.
We have heard ideas about how to increase spending to pay for more Government control, at a time when we already spend 17 percent of the GDP on health care--again, nearly twice as much as our next closest competitor in an industrialized nation, Japan--17 percent in the United States compared to 9 percent in Japan, and other countries are far lower.
Raising taxes is simply a terrible idea, especially during a recession. Raising taxes would also break the President's pledge he made in the campaign last year when he assured Americans that no family making less than $250,000 a year will see any form of tax increase--not your income tax, not your payroll tax, not your capital gains taxes, not any of your taxes. But we can help the President keep his pledge--not help him break it--by empowering patients and consumers, ordinary Americans, to make their decisions and not empower bigger and bigger government to take those decisions away from them and dictate them.
In the Finance Committee, we have heard a number of proposals that may improve care but are not going to contain costs--at least according to the CBO. These proposals include what I would consider to be commonsense approaches that I think are good, such as more health care technology and prevention initiatives. We have even seen a number of interest groups, provider groups, appear with the President last week, pledging they would cut the growth of health care costs, over the next 10 years, $2 trillion. That all sounds good until you start looking at it and realize there is actually no enforcement mechanism at all. It is a meaningless pledge, and there is going to continue to be upward pressure on health care costs across the board unless we do something about it.
Only in Washington, DC, would people embrace the notion that to save money, you have to spend more money. It is not just counterintuitive, it is unproven. I don't think there is any justification for that suspicion. If there is, I would just love to see it. I don't think we ought to take as a matter of blind faith that by spending over a trillion dollars more of tax money on top of the 17 percent of GDP we are already spending now, that somehow miraculously, with the wave of a wand, by suspending our powers of disbelief, we are going to bend the curve on the growth of health care costs, which are bankrupting the country when it comes to Medicare and putting health insurance and health care out of the reach of many hard-working Americans.
We have heard about some interesting ideas, such as comparative effectiveness research, which sounds good at first blush. In the stimulus plan, the Federal Government spent, or pledged, more than a million dollars on that. It sounds pretty good. Let's finds out what works. Well, I am concerned that the Government will use this research to delay treatment and deny care. The way the Government contains health care costs is by rationing, pure and simple. That is what happens in Medicare. I mentioned the woman in Dallas who couldn't find a doctor to accept her as a new Medicare patient. It is because the Government reimburses at such a low rate. So we have a promise of coverage, which everybody applauds, but it denies people access because the Government denies and delays care by using rationing as a way to control costs. We don't need that. Certainly, we don't need that, based on the ``cookbook'' medicine prescribed by Government bureaucrats, who will say: We will pay for this procedure but not that other procedure because it is not in our ``cookbook.'' Last week, Medicare refused to pay for less-invasive colonoscopy procedures. I don't think the American people are crying out for more Government control of their health care decisions based on cost-based decisions. That is what they would get if the proponents of the so-called public plan get their way.
Again, I don't know who it is in Washington, DC--there must be a little group, a cabal of individuals sitting behind closed doors, that tries to think up innocuous names, such as ``public plan,'' for some really scary stuff. A ``public plan'' is simply a Washington takeover of health care; it is plain and simple. It is not an option. In the end, it will be the only place you can go under a single-payer system.
We should take this pledge, too, Mr. President. We should guarantee that Americans who currently have health insurance that they like ought to be able to keep it--that is about 85 percent--as we look for ways to increase access for people who don't have health insurance. One think tank that looked at this so-called public plan--or Washington takeover of health care, which would drive all private competitors out of the market by undercutting them--estimated that 119 million Americans will lose their private health insurance if this Washington takeover, under the title of ``public plan,'' is embraced.
We know the Federal Government is not a fair competitor. While it serves also as a regulator and a funder, the Federal Government says: Take it or leave it. It is price fixing. Nobody else can compete with the Federal Government. The public plan, so-called, would simply shift cost to taxpayers and subsidize inefficiency, as Medicare and Medicaid do today. They are broken systems that we don't need to emulate by making Medicare for all. Why would we emulate Medicare when it is broken and on an unsustainable financial path? We need new ideas and innovations that put the people in charge and will help bring down costs. Greater transparency, more choices, and market forces will increase satisfaction while bringing down costs.
There is another scary concept out there that is called a ``pay or play'' mandate for employers. When I talk to small businesses in Texas, they tell me one of their most difficult decisions is how do they provide health care for their employees in small businesses? It is hard to get affordable health insurance. Some in Washington are proposing taking this to what I would call a ``mandate on steroids.'' Basically, it would say that if a small business doesn't provide health insurance coverage for its employees, it is going to have to pay a punitive tax. That is why they call it ``pay or play.'' New mandates on job creators would do nothing but head us in the wrong direction during a recession, where we are fighting the best we can in the private sector to create new jobs and retain the ones we have. We know the costs of this ``pay or play'' mandate are going to ultimately be passed down to the workers in the form of lower wages, just as they are today under a broken system.
I have heard good ideas about health care reform. I hope we will have a robust debate about the options available to the American people to fix this broken system. I have to tell you that many proposals out there that seem to be gathering momentum are deeply troubling. As I have said, I believe the
best way to approach health care reform--indeed, governance generally--is from the bottom up, not the top down.
We need to take our time and get this right and not, in our haste, produce a bad bill that will even deny people the choices and coverage they have now. We need to listen to the people who are running small businesses and raising families across this country. That is what I plan to do in Texas next week. I hope my colleagues will take advantage of the next week's recess to do likewise.
This is too important to get done wrong. Let's take our time and listen to the stakeholders and people who will suffer the negative consequences if we get it wrong, and let's work together with President Obama and the administration to try to get it right.
I thank the Chair. I suggest the absence of a quorum and ask unanimous consent that the time be charged equally to both sides.
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