Military Construction, Veterans Affairs And Related Agencies Appropriations Act, 2010 - Continued

Floor Speech

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Mr. COBURN. Madam President, this is a very straightforward amendment. This is an amendment I have offered on all appropriations bills to date. We passed it on Housing and Urban Development-Transportation. We passed it on Energy and Water. We passed it on Interior. We passed it on the Defense appropriations bill. It is an amendment that says that the reports that are asked for in this appropriations bill, unless there is reason to not yield to the people of this country the information contained in that report for either national security or defense purposes, that those studies will be made available to the American citizens and the rest of the Senate.

Each appropriations bill, in proper fashion and by a good job by the Appropriations Committee, asks for reports and reviews on how the money is spent. All this amendment does is require that the reports that are required to be submitted by a Federal agency in this act be posted on a public Web site of that agency for all Members of Congress and all Americans to see. There is an exception for reports that contain classified or proprietary information.

In the House and Senate version of this bill, the following reports are--I won't go through all of them--what action DOD and the State Department have taken to encourage host countries to assume a greater share of the defense burden--that is something that ought to be shared with the American people; an annual report on operation and maintenance expenditures for each individual general or flag officer quarters at each of our bases around the country during the prior year; a report of the Secretary of Veterans Affairs on approved major construction projects for which funds are not obligated within the timeframe provided for in the act--in other words, to know what we are getting ready to spend, what is obligated; a report detailing the current planned use of property estimated to have greater than $1 million in annual rental costs; a detailed report on how the $3 billion that has already been appropriated for information technology projects at the Veterans Administration' is spent, including operations and maintenance costs, salaries, and expenses by individual project; and then finally, a quarterly report on the financial status of the Veterans' Administration, a health status.

This is just plain, good, open government. It creates transparency, and it allows the American people to hold us to account. By requiring that Federal agencies produce reports funded in this bill and publicize them on a Web site, everybody will have easy access to the reports. That is not the case today in the Senate or in the Congress. Evaluating and reading these reports may prompt a congressional hearing, Federal legislation, or even termination of a Federal program or policy.

This is a straightforward amendment. It is my hope our colleagues will accept this amendment and it will become part of this appropriations bill as well.

NOMINATION OF JUDGE ANDRE DAVIS

Madam President, I now wish to spend a few moments talking about Judge Andre Davis, who is the nominee for the Fourth Circuit Court of Appeals.

I sit on the Judiciary Committee, and I voted against Judge Davis's nomination coming out of the Judiciary Committee. I thought the American people ought to know why.

He is definitely an individual of integrity. He is a very pleasant individual. I enjoyed the banter back and forth during the hearing. But as a Federal district judge, Judge Davis has been reversed by the Fourth Circuit Court numerous times. A lot of judges get reversed, but there is a trend with Judge Davis where we have seen the law misapplied. So I have some real concerns. This is a lifetime appointment to this circuit court, No. 1. No. 2, the Supreme Court only hears 80 cases a year, so if a case comes to a circuit court, most often that is a final determination.

Let me spend a little bit of time on characteristics of these reversals because they are very concerning to me. He has been reversed by the Fourth Circuit Court in six different cases where he was noted to suppress evidence. For those of you like me who are not lawyers, let me explain what that means.

Suppressing evidence in a criminal case most often results in a defendant not being convicted of a crime and a victim and their family not receiving justice. Not only do the victim and victim's family not get justice but the government has to spend taxpayer dollars and resources to appeal the case to the next level. Let me give some examples.

In the case of U.S. v. Kimbrough, Judge Davis suppressed the statement of a defendant who, while in the presence of police, told his mother he had a gun in the room. The officer was trying to give him his Miranda warnings at the time when the mother asked him if there was anything else in the basement, besides the cocaine that was readily visible to her and the officer.

In reversing Judge Davis's decision, the Fourth Circuit offered a harsh rebuke stating that since the mother ``is a private citizen, her spontaneous questioning of [the defendant] alone, independent of the police officers, could never implicate the Fifth Amendment.'' The court further stated that Judge Davis's conclusion that `` `Miss Kimbrough's involvement in questioning her son was the equivalent of official custodial interrogation,' ..... is at best incomplete and, taken literally, is simply erroneous.'' The Fourth Circuit said that a statement made in these circumstances should ``never'' be suppressed and Judge Davis's reasoning was ``simply erroneous.''

In U.S. v. Siegel, Judge Davis suppressed evidence of the defendant's 20-year history of scheming and plotting to take money from previous husbands in a case where the defendant was accused of dating the victim, taking his money, and then killing him. The facts of this case are particularly worrisome.

The defendant had met the victim and started dating him, eventually taking his money and trying to have him institutionalized.

After failing at having him institutionalized, she killed the victim and hid his body. Although the body was found in 1996, it was not identified until 2003. During that time, the defendant remarried and continued to collect the man's Social Security checks. When the body was identified, Federal agents contacted her and she told them the victim was alive and had run off with some other woman. She was arrested and charged with murdering the victim to prevent him from reporting her fraud. When the prosecution sought to introduce the defendant's prior bad acts at trial, Judge Davis refused. According to the Fourth Circuit, Judge Davis was concerned about the length of the trial. The Fourth Circuit reversed, finding that the evidence was admissible and, because the government charged the defendant with committing murder to prevent being reported for fraud, this evidence was an essential element of the government's case. As for Judge Davis's concern about a lengthy trial, the Fourth Circuit concluded that was an improper basis for excluding wholesale this clearly probative and relevant evidence of other crimes. On remand, the defendant was found guilty.

In the case of U.S. v. Jamison, Judge Davis suppressed the confession of a felon who shot himself, called out to police for help, and then gave the confession during the routine police investigation into his injury. He was charged with being a felon in possession of a firearm. The court of appeals reversed Judge Davis's ruling and said the man's confession was admissible in the case.

In U.S. v. Custis, the defendant was prosecuted for several Federal drug and firearm offenses. The evidence used against him included weapons and drugs that were seized by the police from his truck and residence. The police search was based on a warrant obtained with evidence they compiled from an informant who had given them reliable data on the defendant's drug operation. Judge Davis granted the defendant's suppression motion, finding that the search warrant was faulty. The Fourth Circuit reversed, stating that Judge Davis erred in granting the defendant's motion to suppress the evidence, and that if Judge Davis had read the supporting affidavit in a ``commonsense, rather than hypertechnical manner, as he was required to do,'' he would not have excluded the evidence.

There are many other cases where Judge Davis has incorrectly suppressed evidence that I will not go into at this time. There are many other reasons, whether it be violating the sentencing levels according to the Fourth Circuit, an abuse of discretion, remanding for resentencing, or being more than a neutral arbiter in terms of plea arrangements. Here is what the Fourth Circuit said about Judge Davis's role in terms of the plea arrangements:

We have not found a single case in which the extent of judicial involvement in plea negotiations equaled that in the case at hand. The district court repeatedly appeared to be an advocate for the pleas rather than as a neutral arbiter, and any fair reading of the record reveals the substantial risk of coerced guilty pleas. We can only conclude that the district court's role as advocate for the defendant's guilty pleas affected the fairness, integrity, and public reputation of judicial proceedings.

I won't go on, but those six cases I outlined are enough for me to not be able to support this judge, who is obviously a very fine gentleman and a good man, but who I believe has made some significant inexcusable errors on the bench.

Finally, I want to spend a moment talking about a bill several of my colleagues have brought up, and it is the veterans caregivers omnibus bill. Regardless of what the news reports say, and my colleagues say, I am not opposed to us making sure we keep each and every commitment we make to veterans. I think many of the programs that are in this bill are ideally suited for the problems our veterans have. What I object to is the fact we are going to create $3.7 billion worth of spending--and that is a CBO score, not my score, the $3.7 billion worth of spending--over the next 5 years and not make any effort whatsoever to eliminate programs that don't have anywhere near the priority this program does.

The other thing I object to is the timing. There is no question we need to do this, especially for our wounded warriors. But we are excluding our Vietnam veterans from having access to this same care, and we are excluding the first gulf war veterans from having the same access. They have the same needs. Nobody can deny they don't have some of the same needs, but we are excluding them, and from a constitutional standpoint, I am not sure we can ever get to the point where we would agree that is fair treatment for our veterans.

Mr. DURBIN. Will the Senator yield for a question?

Mr. COBURN. I wish to finish my statement first. I listened to the Senator's statement earlier today on the floor, so let me finish my statement.

The other thing that is concerning is we have a bill before us right now--this appropriations bill--that has no money for this in it, one, and authorizations aren't required. So $280 billion of the money we appropriate every year is not authorized. The fact there is no money in this bill for this program tells me something, that the urgency of getting a press release isn't near the urgency of the needs of our veterans. Because if we allow the normal process to happen, it will be 18 months from now before any money comes forward for this bill.

Finally, we have offered up a list of programs we think have much lower priority than our veterans' health care, and so I think of my brother, who is a veteran, and I ask myself: What did he serve for? What did he fight for? Did he fight so we could come back here and undermine the future by not making the same tough choices that are required for every family and, more importantly, not demonstrate the courage in our service that the veterans demonstrate in their service--which is putting yourself at risk to do what is best for our country? That is what they do, but we ought to be doing the same thing.

We ran a very large deficit this last year. Forty-three cents of every dollar we spent this last year was borrowed. None of the people in this room will ever pay a penny toward that debt. It will be our children and grandchildren. And the fact is we will not make the hard choices to pay for this so that tomorrow we can say, we are going to eliminate these programs so this program can go forward, and we are going to take the money that is going for these programs so this program can go forward.

What this appropriations bill does, as a matter of fact, is ask for a study from the Veterans' Administration on the need of this bill. So if this bill is certainly a priority, the funding for it should have been in this appropriations bill, and it is not. Nobody can deny it is not. So I come to the question: When will enough be enough? When will we stop playing a game on dollars and ultimately make the same hard choices and demonstrate the courage our veterans have demonstrated? I can't think of many veterans who want now what is paid on the backs of their children or grandchildren. What they want to see us do is the hard work, as they do the hard work, to put ourselves at risk by telling some people no so we can tell veterans yes. What we are doing today is we are going to tell veterans yes but we are going to tell our children no.

I can easily outline for my colleagues $300 billion--that is ``B'' for billion--of waste, fraud, and duplication in the Federal budget. They may disagree with some of that, but there is no question you could get a consensus on $3.7 billion of that. On 1 percent of it, you could get a consensus. But there is no effort made on this authorization bill to create priorities. What we hear all the time is: Well, that is not the way it works up here. Authorization bills are simply that, and it has to go through the appropriations, and you are not spending any money.

Well, if we are not spending any money on this bill, then we are not solving the problems for our veterans. And if we don't have any money for this program in this appropriations bill, we are holding out a hollow promise.

I ask my colleagues to work with us. Let's offset the price for this, demonstrate the same courage and the same level of commitment. There has been no secret on who has said we should not pass this by unanimous consent, and there has never been a time that we refused to talk to anybody about that.

My hope is the American people are listening. Sure, we do want to do the right things for our veterans, but there has to come a time when we are forced to make hard choices, and we are not seeing that. We are not seeing that in this bill, and we are not seeing it in the authorization for this veterans and caregivers omnibus bill.

With that, I yield to my colleague from Illinois, and retain the time until he has finished asking whatever question he may have.

Mr. DURBIN. I thank the Senator from Oklahoma.

The PRESIDING OFFICER. The Senator from Illinois.

Mr. DURBIN. I ask the Senator from Oklahoma, is the Senator suggesting we should open this up to caregivers for veterans of all wars?

Mr. COBURN. Yes, sir.

Mr. DURBIN. Would the Senator from Oklahoma join me in that endeavor?

Mr. COBURN. If we are going to do this bill, yes, I would.

Mr. DURBIN. Would the Senator from Oklahoma also agree that this bill was on the calendar long before Veterans Day?

Mr. COBURN. Absolutely, but when was the hold? Less than 3 weeks ago. It wasn't brought to the floor before then.

Mr. DURBIN. It was brought to the floor on September 25.

Mr. COBURN. Okay, 5 weeks. Pardon me.

Mr. DURBIN. Also, I would ask the Senator if he is suggesting we should have included the appropriations for this bill before we authorized it?

Mr. COBURN. I would answer my colleague that we do that 280 billion times a year.

Mr. DURBIN. The Senator would endorse that, and wants us to include the appropriations before we set up authorizing language?

Mr. COBURN. What I would tell my colleague is you do it routinely on the appropriations bill. So why is this any different?

My question to my colleague is: If in fact this is so important to get done today, knowing there is no money in this bill for this--my colleague would agree with that, would he not, that there is no money in this appropriations bill for this act? Is that a correct statement?

Mr. DURBIN. To my knowledge, there is not.

Mr. COBURN. There is not. So we are going to say we are going to authorize something in the hopes that we have to do it right now, knowing that unless we have an omnibus or a supplemental this won't actually happen until we get to this bill again next year.

Mr. DURBIN. So is the Senator from Oklahoma conceding an authorizing bill does not spend money, since the passage of this authorizing bill, as you said, would not spend a penny?

Mr. COBURN. No, I will not concede that. Because what it does is it causes us--and I enjoy debating my colleague from Illinois. Here is my point on authorization bills. We can authorize and authorize and authorize, and when we do, we are telling veterans they are going to get this. That is what we are telling them. We are communicating to every veterans organization and we are telling them we are going to do this. So if we are going to tell them we are going to do it, we ought to put in process the way to do it. And if we are saying it has to happen right now, then where is the money? Show me the money to make it happen right now.

The fact is--and I will reclaim my time--we play games, and the game we are playing is that we can authorize and send out a press release but then we are not held accountable to do what we have authorized. There are a lot of good key components in this bill. My objection is twofold: One, it discriminates against previous veterans, which I think is uncalled for; and two, we don't eliminate any of the waste in terms of authorizations so that we more focus the Appropriations Committee.

There is no question the Appropriations Committee has the power to fund money anywhere they want and they do it whether the bills are authorized or not authorized. I will be glad to give the Senator from Illinois a list of the $280 billion we spend every year that is not authorized. It is a spurious argument to state that we should not have fiscal accountability when we authorize programs. We should have and we ought to make the tough choices. The problem is, we do not do any oversight, to speak of, to cause us to know the programs that are not working that we could eliminate so we will not have duplicate funding and so we will not spend it.

The question veterans ask me is what is our priority with our money. The first priority has to be defending the country. The second priority ought to be about taking care of veterans. What we do is we have $300 billion a year in waste, fraud, and duplication on things that do not do either of those and that are extremely wasteful. Nobody with common sense would say they ought to continue. Yet we continue down the process.

I have taken more than my time and I know my colleagues are going to vote. I would tell my colleague from Illinois we have had this debate a large number of times. We have a frank disagreement about the fiscal discipline that should be required of us as Senators. The fact is, we are going to authorize a bill and we are not going to make any tough choices about anything else and we are not going to take away any options from the Appropriations Committee when it comes to funding. To me, that abrogates our responsibility to be good authorizers. I will stand by that conviction as long as I am in the Senate. We had that debate on the bridge to nowhere, which my colleague supported, which was in an authorizing bill--and multiple times.

With that, I yield the floor and I am prepared to listen to my colleague from Illinois.

Mr. DURBIN. Madam President, I know we have a standing order for a trigger to move to the Executive Calendar, but I ask unanimous consent for 5 minutes for the purpose of making a unanimous consent request, a short statement, and then to ask two other amendments which I have introduced to this bill be called and be pending.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. DURBIN. Madam President, I will speak briefly to the Senator from Oklahoma. This is not my bill. This was a bill introduced by Senator Hillary Clinton. It has been around for a long time. It is an effort to provide some help to the 6,800 families who have in their homes today a disabled veteran who needs a caregiver, someone who helps that veteran change the dressings on their wounds, provides an IV change if necessary, injections if necessary, move them from bed to chair and back again. For many of our veterans, that is their lifeline. It is a wife who is giving her life to her husband who has returned injured from a war. It is a mother, a father, a son, a daughter, a loved one in the family. These people are as much a part of our veterans medical system as the great people who serve us at the veterans hospitals and veterans centers across America.

What Senator Clinton wanted to do and what I want to help her do is provide some help for these caregivers. Many of them are giving their lives to this veteran. It is not too much to ask that we help them with a small stipend each month, with training so they know how to do the things that are necessary so they can provide the medical help these veterans need, with 2 weeks of respite so they can have a little time off by themselves and have someone else, such as a visiting nurse, step in for the veteran during that period of time.

We reported the bill out of the Veterans' Committee and brought it to the floor. By custom in the Senate, regardless of what you just heard, we first pass a bill authorizing a program and, if it is passed, we appropriate money to the program. I am trying to follow that regular order.

The Senator from Oklahoma has objected. He is the only person objecting. Because of his objection 6,800 veterans, those who served Iraq and Afghanistan, are unable to get this additional care. I know we cannot give it to every caregiver. I know it will be limited, and we will have to make that decision as part of our deliberation as to what we can do. But to say we should do nothing for these people is to make a mockery of this Veterans Day. If we truly care for these veterans, let us care for these families who are giving their lives to help them.

I hope the Senator from Oklahoma will lift the hold on this bill, give us a chance to debate it, offer his amendments. That is what we are here for. But to merely stand and say: No, stop, I will not allow it, I don't think is what the Senate should be about. Let us debate his point of view, my point of view, other points of view, and try to reach some conclusion.

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Mr. COBURN. Madam Presiding, during today's conversation, the Senator from Illinois stated that S. 1963 had been on the Senate calendar since September 25, 2009. In fact, S. 1963 was read the second time and placed on the calendar on October 29, 2009. A request was not made for unanimous consent to pass the bill on the minority side until Friday, November 6, 2009.

There are currently 35,000 veterans receiving aid and attendance benefits from the Department of Veterans Affairs, which provides funding for veterans who need extra help at home but do not need institutional care. The aid and attendance program assists all disabled veterans of all wars. Out of this population, around 2,000 veterans received their injuries after September 11 and would qualify for extra caregiver assistance in this bill. However, caregivers for tens of thousands of veterans of prior wars would not. Of course, that assumes that the House passes the Caregiver Assistance Act in its Chamber and the President signs it into law. Then it assumes that next year, in the discussion on the fiscal year 2011 budget, the President requests funding for caregiver assistance, or that both appropriations committees include funding, and that the President signs this into law. The absolute earliest that a caregiver would receive assistance is October 1, 2010. However, that date is not likely given the performance of the Department of Veterans Affairs. Right now, the average processing of a disability claim is 162 days at the Department. Given that the Department will have to make rules on this new benefit, it will be well into 2011 before any caregiver benefits from this program. However, passing this bill before Veterans Day will give benefits to politicians, who will have made an empty promise in 2009 that might not be realized until 2011, and even then, would be paid for by our children and grandchildren.

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