watching c-span, it could be anybody on the floor except center schumer and the presiding officer. no one objected, possibly because there was nobody there to object pick the senate deliberations took less than a minute. i would just end with this. presidents do have discretion to use military force without prior congressional authorization such as repelling such attacks, rescue american citizens. that has nothing to do with what happened in libya, no connection. america was not threatened or attacked by libya. obama has called the military

operation a humanitarian intervention that serves the national interest. one person decides what is in the national interests. launching tomahawk missiles--that is warm. and the constitution there's only one source for authorizing war. it is not the security council or nato. it is congress. to restore constitutional government if that is what you want, we say other countries should take up democracy and self-government as we want it here. the public has to be willing to confront the president to commit troops to foreign wars without seeking legislative authority. by calling for this house judiciary to hold impeachment

hearings. i will say no action by a president would more warrant impeachment and removal that usurping war power from congress and undermining representative government and the system of checks and balances. members of congress need to understand their institutional duties and discharge them. not just their own duties that those of constituents in washington d.c.. members of congress take an oath to support and defend the constitution, not the president or the supreme court. thank you. [applause] >> thank you. while jonathan comes to the microphone i was watching hillary clinton on a sunday talk show after we began the bombing and she said the senate voted unanimously for resolution calling for enforcement of a no-fly zone. i was surprised to hear that. i looked it up and the paragraph

reads urges the security council to take further actions as may be necessary to protect civilians in libya from attack including the possible imposition of a no-fly zone over libyan territory. kind of funds on that. >> thank you very much fordged . >> thank you very much for inviting me to this. i spent 20 years in the middle east and when i came back to washington and began to work for congressional quarterly my editor said given your background probably the best way to approach covering congress that i never covered before the leader of the best way to approach congress is to look upon congress as a foreign country. it has its own language, its own rules, its own culture and its own traditions of behavior which we have heard some of from the

previous speakers. i would like to focus on one of those characteristics of congress. that is they tend in these kinds of situations where they have to make a decision on military powers, they tend to kind of these things because as john yoo said and as congressman porter goss mentioned the idea of for example the 60 day limit we are facing, this friday. the idea of cutting off funds the troops that are already in the field -- it is not going to happen. is never going to happen. as don pointed out in one of the

papers that you have in your packet, congress -- they don't like to take positions on military issues where military defeat is a possibility. they don't want to be on the record. is much easier to criticize from the sidelines. what i would like to discuss today because we have heard very good arguments for and against the war powers act whether it is constitutional or not. from louis fisher and john yoo. probably the most important advice we have heard here today. that is because he represents not so much the academic but the

empirical. he is the head of the cia and has dealt with these situations and as a journalist, my inclination is to listened to those who do rather than those who teach. if you look at what congress has done, since this whole war powers issue has come up in libya, i will restrict my remarks to libya, you will see the perfect example of congress being all over the map on this. they look like they're doing a lot but in fact they are going 60 miles an hour but really standing still. we have this deadline on friday.

as others have said the 60 day deadline comes due on friday and we will have to see whether the president does in terms of going forward with military action or ending it for seeking authorization. we don't quite know yet what he will do but i will address what i think is going to happen. right now we have a bill that has been written up by senator mccain, senator kerry and senator levin, the raging republican on the armed services committee, the ranking -- the chairman of the senate foreign relations committee and the chairman of the armed services committee and what this bill would do would basically of a

rise ex poste facto the america operations in libya. senator mccain -- i talked to him about it. he agrees with john. he says i don't even think the war powers act is constitutional. i don't think he needs to follow this deadline. if such legislation would be needed, we drafted it. here's what you can use. it is ready to go. should the president need it or should harry reid believe -- not all republicans agree with john mccain of this. we have senator john gordon - o --cornin of texas providing a

description of u.s. policy objectives in libya--libya during and after gadhafi's rule and providing congress with his plan to achieve those objectives and it would require the president to seek congressional authorization for the use of military force in libya. there's another proposed republican resolution and libya in the senate. this one is canaan binding sense of senate resolution authored by the official party of senator john hanson of nevada declares that this resolution declares it is not in the vital interests of the united states and the job should be done by nato and the arab league. it does not address the fact the united states is a key member of

nato. the house has several pieces of related legislation but both parties in that chamber are just as divided as they are in the senate. last week the house foreign affairs committee marked up a resolution by oklahoma republican, holt that directs secretary of state divide the house with copies of any documents leaders will records leaders the memos or correspondent -- the armed services committee directed the pentagon to provide the same materials. to the congress. you can see where congressman o kohl is going with that. there are other two measures before a house foreign affairs committee that express a sense of congress that the president

should adhere to the war powers act and change specific authorization of congress to use force in libya. one more republican measure would require the president to recommend specific reductions in non security discretionary spending in fiscal 2011 to offset the costs of the libyan operation. that measure is before the house armed servicess. despite all the grumbling about the president acting and libya without consulting congress, despite all the measures that have been introduced, house republican leaders have resisted holding any votes on the authority to bomb libya. as i said before the reason for this i will defer to our moderator the valente 26, wrote in roll-call last month when congress is faced with the choice of exercising its war powers under the constitution it

is a war dance that is a sidestep. four steps left, four steps to the right and a lot of back-and-forth. and he continues, this is especially true absent a presidential request to use force. members of congress prefer avoiding political risks when military failure is a possibility. interestingly, the anti-war democrat dennis kucinich of ohio says he will force a vote on ending the u.s. military operation in libya when the house adjourns from its weeklong recess next week. as soon as congress returns, he will introduce a bill pursuant to the war powers act to halt american military participation in the nato led libya campaign. the senate says if the house foreign affairs committee does not take up this bill with 16

legislative days, within 15 legislative days, it can then move directly to the floor for debate and -- and a vote under the war powers act. the white house welcomes congressional input of the war in libya but like previous administrations the officials had john whether the president needs congressional authorization on military operations after the six day deadline expires on friday. we see it that the house is considering two possible options that officials would keep president obama in compliance with the war powers act. one would involve all in all operations -- or halting just the use of predator drone missiles which is the only

offensive combat weaponry using in libya, stopped using those and technically in compliance that we stop combat operations. those are some of the operations the administration is considering. there is also the option of simply saying we think it is unconstitutional and we are going to go forward with american troops involved in this operation and with so much prestige on the line realistically it is not likely that we are going to stop our operations. the only thing that remains a mystery is what the justification is. that is a tour to the horizon of where things stand on capitol hill on libya and the war powers act. it will surprise none of you that the members of congress are

no more agreement about this than members of the staff. thank you very much. [applause] >> what i would like to do before we open up to questions from the audience is give our panelists a chance to follow up on comments after they had a chance to speak. let's start with porter goss. you are live. >> thank you. i appreciate comments from the scar tissue we picked up over the years, there is plenty of it. we have a couple things going here. we are talking about this power and the other aspect is more important, national security and the way the landscape looks, we do the right things. it would be wonderful to figure out procedures to grant the authority ahead of time but i have great faith in the people of this country will tolerate a

president who does the right thing for the united states of america. that is not written down. it is not in the constitution. it is something you take on faith because we are an extraordinary country. i am very high on america and i feel we will get it right. i don't think we were ever going to start this out because when you go through all the details there are wonderful arguments but the fact is like when you run for office as a politician you can take a stand on an issue or promised this or that but one thing you can't do is foresee every vote you are going to make and tell everybody how you are going to vote. you just don't know because you don't know what the vote is going to be. we asked that judgment of the president of the united states as well. we are asking you if the situation comes up that requires you to use your presidential authority for people at home and abroad that you will do it and that is part of this that when we are down in the wood wandering around what tree is a

bigger tree and the more important tree and so forth, to remember it is a dangerous world and we are the go to guys who deal with these problems. whether we solve this to everybody's satisfaction i am not worried. what i am worried about is we step back from the ability to do good for the world because there are not lot of other forces that can. you notice nato doesn't do much without the united states. i cannot talk about something called drones did somebody say? that is a classified matter and i am not allowed to talk about classified things but if there were such things as drones, it would not surely substitute for the debate we're having because is a drone a targeted assassination? is using a drone that will give you collateral damage, is that better than a sniper? troops on the ground or

something else? these are all very legitimate debate about what it comes down to is the same thing every time. is the judgment based on good moral value of right and wrong? doing the right thing for this country? that is where i want to end up any debate like this because you will never resolve the friction between the hill and congress and i don't think we should. what would you do all day? tea change there has been progress in 17 years but in my direction, i agree that the u. n. security council authorization can't replace what is required under the constitution for domestic authorization of war. i agree that the u. n charter can't replace whatever our

domestic processes for deciding the war. i don't think a treaty can change the constitution. we are both skeptical of the office of legal counsel's opinion the obama administration issued -- i didn't go into it. i disagree with a separate part of it. if you look at the opinion that makes the claim the libyan intervention is not a war, quote, under the constitution. it says it is triggered because we're doing and libya does not constitute a war. the claim is it is too small because there are no ground forces. this is similar to the rationale used by the clinton administration for the haiti and kosovo operations. i don't think the constitution draw that distinction between small wars and big wars. it doesn't draw a distinction between ground troops and air wars. it would be a great surprise to

muammar gadhafi who is trying to hide from the mysterious flying object which we can't confirm the existence of that we are not at war with libya. we attacked another sovereign country illegally and we are bombing civilian leadership and providing aid to people who rebuild from that leadership. seems to me it is a war. and still about the military incentive this creates which is if you have the constitution present you are going to over use air power even when it doesn't make sense. and forced to use ground troops like what happened in rwanda. there is disagreement, i want to point out two or three, i quite agree with americans who wrote the constitution who were anti monarchical who rebelled against king george remark -- canes george iii. there was a few that had it had

gone too far. only the legislature authorizes war, those were not cognizant to the constitution but when you look at a fellow here several years ago, other scholars of the revolutionary period say the framers wanted to rebuild executive power particularly in the national security area because they thought we had gone too far in the other direction. it is not that framers hated king george iii of every question is tilted toward a pro congress answer. offensive purses defensive wars, whetherversus defensive wars, whether that line makes sense. what about anticipatory

self-defense? what about wars -- interesting a person is about to attack you. look at the bush administration's defense of the war in iraq bleed original part of that was anticipatory self-defense that iraq was going to give weapons of mass destruction to people -- what happens when the executive branch starts to say the threat has this chain of events and i need to stop it at point a rather than have an attack on the country? last thing i will touch on is what porter goss mentioned which is consequences. if we do have a choice of systems, the constitution leaves discretion to us today to build a war power system which results in the best outcome for the united states and the world? i think the people who set up the national security system were shaped by the world war ii

experience and congress by passing neutrality acts delayed entry into world war ii by several years and if the united states and executive branch were able to act faster we might have been able -- and hitler would have been brought down earlier. that is not the case requiring the present president and congress produces better results for the country in terms of foreign affairs. lot of wars have been bad for the country where president and congress agreed or congress was pushing for war and the president was reluctant. the system we have now currently worse off for the countries and one that would adhere -- thank you. >> three things. on the olc memo -- >> the office of legal helpful -- the office of legal counsel. >> legal memo that at least

agree in war. the united states government recognized that the, quote, and continued existence of the united nations as an effective international organization is of paramount united states interest. thaw and people recognize that. congress is not in this. i remember years ago i was on a panel and someone in the executive branch said my remarks to not reflect those of the united states. what kind of mind is that where on other days you are speaking for the united states? that is what you do on the executive side. i think john would agree what the memo does is a typical one realist and use congressional research report the good will 150 -- none of those have

anything to do with libya. how any of them have anything to do with the security council resolution. here's an example. olc quote robert jackson legal former attorney general and justice of the supreme court bigger still saying the president's authority has long been recognized as extending to the dispatch of law enforcement outside the united states. either missions of good will or rescue work the purpose of protecting american lives or property or american interests. that has nothing to do with libya. there's nothing about missions of goodwill or rescue or protecting american lives and property. law professor michael gwynn three or four weeks ago in the analysis of the olc memo says the department at sweeping support for independent

presidential power, quote, john will like this language, the rise primarily from unrelated -- pulled conceptually from positive cases. that is a nice way to say really sloppy opinion. two other points. i think about five or six weeks ago the house armed service plans held hearings on libya. i watched it. pretty important hearings. secretary gates was there and admiral mullen, chair of the joint chiefs. one of the house members asked gates if some nation came to our shore and sent tomahawk missiles into u.s. cities would that be war? and gates said something like probably so. you can guess what the next question was. with the united states and tomahawk missiles into libya, is

that war? end he said i am not a constitutional lawyer. it is complicated. dennis kucinich actually procedurally makes more sense than some of the other things we talked about before. he used that procedure, fast-track procedure in the resolution with regard to afghanistan but that was authorized. >> it was misused because it is only supposed to be used to get to that last congress with iraq as well. in this case congress hasn't authorized, is available but is a concurrent resolution which supreme court would say is unconstitutional because it affects parties outside the congress. it doesn't go to the president for his signature. it goes to the 1983 supreme court decision on immigration. >> i agree with that. on kosovo that was one of the

strange things. when president clinton couldn't get the security council to support him on kosovo he goes to nato and under that procedure he has to get approval from belgium, luxembourg, germany but not from congress. when the house and senate debated it leaders middle the speaker of the house -- the house concurrent resolution. no legally binding meaning at all. the current one has no legally binding meaning. dennis kucinich is better off on this one. it is exactly what the war powers resolution had in mind. >> thank you very much. you have anything to follow-up on? >> a few thousand feet above all this, there is the world of laws

and treaties and fine print and then there is the way the world really works. and often they don't match up together. there are two definitions of diplomacy. one definition of diplomacy is the art of letting the other guy have your way. that is one definition. another definition is the art of saying night doddy until you can find a rock. this whole discussion about war power and what happens in libya, you can't divorce the president's decision. , and we do is let him to make decisions .. in difficult times. s what an election is really about. you cannot divorce that from what else was happening in the middle east previous to libya.

i live in the middle east for 20 years. 1970-1990. i saw a lot of wars and a lot of liberation movements and i saw lot of terrorism, but i never saw anything like what we are all seeing right now in this is sort of the arab a wakening is, these are historic times, trust me. anyone who follows the middle east, this is as historic as the collapse of the ottoman empire afteran world war i. it is comparable to the berlin wall coming down. so you had prior to the demonstrations in libya, you had the revolution in egypt. the largest arab country.th you have the fall of mubarak.

relatively peacefully. i think a total of 800ly people died. a largely at the hands of the secret police but the army did not get involved. it is a big deal.th that is a very, very big deal. you had tunisia, sorry, that preceded egypt. and that ignited the protests in egypt.it now, you've got egypt here and you've got tunisia here. what's in between them? libya.et libya is the bridge between those two countries. i would imagine, look, i was not in the room when the president decided this. none of us were but i would imagine that anybody who knows the middle east that was briefing him would tell him that what happens in libya can after -- affectpp the success or the failure of revolutions in egypt and tunisia. tunisia may not be as important but egypt is really important.be i mean that is the anchor of,

of prowestern moderate arab politics in the middle east. now maybe after this revolution, it may not be as pro-american as it was but it's not, we're not talking about iran here.ir but egypt has certain elements that we have to, we have to hope won't take power. now a lot of this is out of our hands but you have to, at least try to direct things if you possibly can in a direction that is most advantageous to u.s. interests. so while, yes, it's true that if you take the view that mr. fisher does that you can not go to war f without some authorization from congress and that after, if you're going to go to war as we did with libya and i would say that firing

tomahawk missiles into libya from off the coast is an act of war, i think you have to consider, you can look at that through the world of, you know, legal documents and treaties which i'm not saying that they're notd important. they provide order in they world but there are more things going on here than just the war powers act.in there is, u.s. foreign policy considerations in the broader middle east which have to be taken into i account. i don't know how you quantify those but you do have to take them into consideration. >> thank you. i think the president's letter as well as his address indicated two things for the action.le one was stability of the region but the larger issue was really the possible b humanitarian disaster that would ensue if there were a massacre that did take placeer and i think the three players, atd least by some reports most influential were around at time ofe

rwanda weighed heavily. talking about hillary clinton. neil: susan rice andng samantha power who was right writing about it at the time.t questions, give your name, and start out with a young lady next to marti. >> i have two questions. >> give your name and affiliation please. >> i'm sue tolson at george mason university. a i'm going to ask two questions because i think you won't call on me twice. one question, and i know we've used lou's books and you've all done very fine work but my question is, didn't congress by passing the war powers resolution violate the constitution in a way? because he have the right,la only congress has the right to declare war. by what i think is really ridiculous piece of legislation they're giving

themselves 60 is today.th you can blow up the world in two days. giving i themself a 60-day period seems ridiculous to as member of the public like myself. secondly, i'm a child of the vietnam era and it seemed told me also if you had required, if congress was really doing its job and you know, upholding its responsibility to the declare war, you might have had more public t support for this particular war. has anyone done a study, really correlating in recent times the growth of executive power and unpopularity of wars? because i think vietnam was the first war i remember, and i remember the war of 1812 very well but, but i think that you know, you know, we've had a series of unpopular wars, protests, aside from kucinich you had massive protests and i wonder if anybody haswo

correlated that. >> let me say about the war powers resolution. i think it is fundamentally dishonest statute. when you passing a statute you have to make aes compromise between the house and senate and go to conference committee and something says 90 and s something says some other you can do something in the middle, you're notin violating the constitution. but if you look what the house did and what the senate did and what came out of conference committee it was as senator eagleton said,e a bastard because section 2 of the war powers resolution says this protects the framers intent and alsohi insures collective judgment. obviously it doesn't do i that.ur as sue said it opens theob door for presidents to go to war on their own for 60, 90ei days, nothing could be worseda or more far afield from the framers intent and has nothing to do with collective judgment. it is very dishonest -- i think sue knows that.

of course this came at the end of vietnam period. members of congress trying to assert themselves. the press, marti, i think made a mistake, yeah they're inserting themselves. no, they're surrendering their powers with. i think members of congress felt under pressure to doem something and this is what we got. it's a terrible, terrible statute. >> talking about vietnam, i agree it is a bad statute for other reasons.>> by putting a 60-day clock on.he i agree if you had pro-congress views, why can't congress delegate its authority to the president. although i would say we tolerate those kind of delegations in lots of areas of domestic life. who sets miles per gasof limits on car. that is congress's power but they gave it to the executive branch in the clean air act long time ago. one question is actually the delegation more unconstitutional than a lot of other ones we allow to go on every day.n on vietnam i quite take your

point. even if you had my view you would still want to get congressional approval. when i was in llc we did recommend the president as a political matter getpr approval for afghanistan and iraq and there's this weird phenomenon where the congress asked us to draft the statute for them authorizing the wars in afghanistan and iraq and then i would, that not happened in the house.af only happened in the senate. when i went around and visited senators the major theme i heard why are you making us vote on this? they didn't want to vote on a the iraq war if they could help it. so i think the president actually more often than not would like to get congressional approval.t i'm sure president obama would love to get congressional approval for libya. he can't get it. congress's politicalca incentives they don't wantti to vote on for the reasons mr. goss gave. vietnam, i'm not sure, many people criticize as war powers today who think

vietnam was constitutional becausenk of gulf of tonken resolution. many people say lyndon johnson lied to get congressd to pass a statute.o but congress passed thee. statute. every year there were significant increases in the military voted by congress. so the president and congress agreed on vietnam for a long time. congress acted every year. they could have easily stopped. year. how did the vietnam war end? congress cut off funding, and the war ended just like that. sometimes we confuse lack of political will for some kind of constitutional defect. i think the house and senate just did not want to use that ample powers they had in vietnam. >> nixon said it was unconstitutional, and that is why he vetoed it, but for a

different reason than you indicate. i do not think it says the president can do anything he wants for 60 days. it just as the constitutional powers of the president to introduce troops -- hostilities may only be exercised pursuant to a declaration of war or national emergency created by an attack upon the united states, its territories or its armed forces. it does not say the president is authorized for 60 days to go anywhere he wants and do anything he wants. >> i forgot to mention, i think obama does not withdraw this friday, he would be the first president to actually be clearly in violation. even in kosovo, and there was a special appropriations bill, and the clinton administration said

by passing that bill and giving us money, you have approved it. this friday will be the first real test if the president just says i am going to blow through the first 60 days. >> when we look at vietnam, and since then wars have been generally unpopular, i do not think the intensity has been the same since we got rid of the draft. >> i was chief counsel of the committee when the marines went into lebanon in 1993. i think there is a misunderstanding about the purpose of the war powers act. it is to make congress register its will. it is a -- my question is why does that procedure not provide precisely what you want to have happen? you want to give the president power to act in an emergency under his judgment.

when he react without authorization, we want congress to come in and say, do we agree with this or not? it would be unconstitutional to say that a no vote would require him to remove the troops. this is a political matter. you want congress to stand up and say, are we with you or are we against you? the war powers act provides exactly that proceeds you -- procedure. congress voted to support that particular action and that probably should have voted against it. but congress registered its view. it would have a significant effect on presence deciding whether to go or not. constituents want to know, where do you come down on this issue? do you support the president or

not? this procedure allows that. >> every president at election time will say i am not about to send american troops into a war. fdr did that in 1940. lyndon johnson did it in 1964. presidents note going into war is not a signal to send at election time. the problem with the war powers resolution, congress has to act. once the present engages in military activity, all the arguments that we all know will come up. it cannot cut off funds with dark men and women in combat. -- cannot cut off funds with our men and women in combat. once you are allowed president to go out and take the initiative, your opportunity as

a legislative body is pretty well taken away >> you are saying congress has not provided the president with the obvious tools that they want him to use in case of an emergency or where he thinks the national interest is at stake? you want congress to say that in a given situation, we do not like that one. he is in a much different position. texas from his position for congress's when the president has to go and get authority. >> it is in order, you have to vote on it. >> i think technically in terms of the statute, i would agree with you, but i do not think it is going to work that way. you cannot force congress to do anything it does not want to do.

>> it takes precedence in both houses, so they have to vote. >> we will see. >> there is a congressional response to this. it covers all the bases. members of congress do not want to be painted into a corner about events they cannot foresee. it is not going to work, because they will do a work around. i assure you, there is more energy expended -- they can find more ways to get the impossible accomplished. >> they have given it to him when it was not authorized by the actual statute because they wanted people to have an outlet. it did get a vote, but it could have been blocked just as easily. this gentleman right here.

>> i thought a lot of the questions brought up today were very important. the practical aspects of at the end of the day, everyone can say congress should do this or that, but the practical reality is that they might not do anything. the question i have with regard to this matter is, when we killed osama bin laden, it was done without any congressional authority. it was done because the president did as being highly important u.s. interest that we take care of the matter. often when we engage in conflict, there is always a large debate in the media as to whether we should or should not engage. i think that detracts from the

president's ability to go and do as he knows best because of all the intelligence that was passed to him. to what extent should the media -- to what extent should we entertain dialogue about the moral dilemmas of engaging when the reality is if actions were taken early enough, we are preventing us from being able to act. should we continue to allow mass dialogue to occur or should actions be taken earlier rather than later? >> is basically confronts the libya situation where the rebels have driven into tripoli. we've probably had a good opportunity to take care of libya, but we waited for the un. >> i have not heard one person say that congressional authority

would be required to go after suspected terrorists. no one to my knowledge argues that way. >> i would just say that we have a free press here. people can say whatever they want as long as it sells advertising. >> i am going to try to get into the title 10-title 50 distinction because it is critical to what is going to happen tomorrow morning when the next situation like this comes along, if we get lucky enough to get good intelligence on more high-value targets. we are talking about a couple of different things here. i would say that what the president did, under the way they conducted the operation on bin laden, he used his title 50 authorities with a lawful finding that had been properly

notified to congress. that was supported by special operations forces under title 10, but the delegated authority under title 10 went to the title 50 authority, which was superior in this matter, and the president was covered by the finding on this. what is different about pakistan, for the first time in my living memory, a covert operation is called a covert operation for a simple reason. there is always plausible deniability. within 3 seconds of the time obama was that -- osama was dead, everybody puts their hand up and said we did it. what we have now done is taken a tool with a very good arrangement with the defense and

intelligence people to take action on actionable targets, and we have now screwed up another mechanism which we are going to need tomorrow morning. that concerns me a great deal, and i am surprised nobody brought it up. >> i think the legality of the strike is based on the 9/11 resolution that was passed on september 18. it does not say he is allowed to attack any responsible for the attacks. the second point about covert action, relating back to the question from our veteran of the war of 1812. the covert action area is an example where you might like what has happened. it is unclear who has the authority to authorize covert action in the first place. i think thomas jefferson is the first president to authorize

some kind of covert activity against the barbary pirates. he did on his own. he asked congress for money and they gave it to him and he did not tell them what it was for. he had to get the funding from congress for it. the way the covert action system works is a good example of congressional-presidential cooperation that is very process oriented. it does not lead to all the recriminations we sometimes get about war powers. congress has to see some kind of finding to get a covert action blessed by congress. it's all built on the funding power. congress says you do not get any money for a covert action unless you tell us about the finding. that system seems to work in a more harmonious way that more powers. it is a good example that

congress can do all this if it wants to. i think jonathan is right that all our focus on the legal issues detracts from the policy choices and the moral choices. having been a subject of this in a smaller way, i think sometimes in the u.s. will allow these arguments about legality to detract one -- from what is a good policy for the united states. just because something is legal does not mean you should do it morally. we get tied up so much in the legality, we tend to forget about whether libya is a good war for the ninth stage, which is a basic question. >> when you are dealing with sovereign nations, territories that are set out, that is one thing. when you are dealing with the group of people that are

wandering around like nomads and looking for sanctuaries and finding mischief, then you have a real problem. how do you bring some kinetic response to control them without getting into a sovereign situation. that is the duty of the title 10-title 50 operation, but it is no good if everybody is saying yes, those are our bombs. we use our military to drop bombs in a foreign country. how would we feel about that? we have trouble with nato overflights here. imagine how we would feel with boots on the ground doing that to american citizens. >> the barbary war is a good example for jefferson did go into that mediterranean. there was military activity. he came back to congress and said what i did over there, and

then he said be on the line of defense, i cannot go. anything of an offensive nature must be authorized by congress. congress passed 10 statutes for jefferson and madison, and there is a senator, when clinton wanted to go into haiti in 1994, the senator said of course he can because jefferson did with the barbary wars. i wrote a paper explaining what jefferson did. a year later, clinton wants to go into bosnia, and the senator says of course he can, thomas jefferson did with the barbary wars. >> the first attack by jefferson was not authorized. you say might have lied to

congress about it, because he had a which authorized naval training exercises, and jefferson ordered them to attack the bar worry pirates which they did, and afterward he reported that our peaceful fleet had been attacked. i think it is an example of the president acting without congressional authorization, but then congress authorized it later. the pirates at the reception. one more question. >> there is a couple of parallel issues. i am thinking of the u.s. army special forces in 1983 in el salvador. they were allowed to be advisers, but could not fire the weapons. could they call on a mission to help direct but not engage in firing? then the dustup over discovery

in congress about the belfort's. some people believe they could have been used to do operations and not just collect intelligence. robert issue of categorizing things, not as covert actions, but as something else so that -- you get my drift. advisers under kennedy. >> we have a great debate about peacekeeping operations, what i call humanitarian relief operations to help out mankind around the world. we're not talking about a war like situation with good on the ground, but they are on an errant of mercy. that is a distinctly different question, and usually it

involves being invited the end. this is not usually done without they're willing or at least their diplomatic approval of coming on to our territory, because the sovereign territory is the sovereign territory, and guess we help out in lots of ways and use military to do that does not mean we are doing it against the will of the sovereign. usually means we're doing it with the will of the sovereign. covert action -- the reason we have plausible denial as we do not have to have the discussion about upsetting the sovereign. i would say that we do not want to give up the tool because the types of things we are being asked to do around the world these days, whether or not the resolution going back to september of 2001 covered it or not in the battlefield debate,

ever applies to, or all these guys, does it involve -- that it -- in matters because if you read that book that john brought out from the heritage -- wherever it came from -- there are similar versions around and available. the issue and it's as often in their acceptance, war or in times of war. things change. it is important if you are at war or not. we took questions at the beginning of that conversation, where half the people think we are at war and half the people do not. imagine how congress feels about that. i am interested in the tools to deal with the problem. that is where i am coming from today. we're all talking about trying to work out the horrible questions and the separation of powers. i would like to have the road

map. it would be wonderful if congress could react regularly, dependably and reliably. >> that is the last word. please join me in thanking our panelists. [applause] you are all invited to reception outside this room and we will contender of our conversation. [captions copyright national cable satellite corp. 2011] [captioning performed by national captioning institute]

>> the u.s. senate is about to gavel in today. they will consider the nomination of susan carney to be second circuit court of appeals. a break for party caucus meetings from 12:30 to 2:1 and and then debate on repealing oil and gas company tax breaks. that vote is scheduled for 6:15. this is live senate coverage now on c-span2. senate will come to order. the chaplain dr. barry black will lead the senate in prayer. the chaplain: let us pray. merciful god, our shelter in the time of storm. use our lawmakers to bring help to others. credit to themselves.

and honor to you. empower them to certificates veer through life's challenges, never forgetting that you continue to direct their destiny. lord, guide them to be at peace with themselves, with others and with you. may they strive to live for your glory, knowing that though your will may be hindered, it will ultimately prevail. give them and all of us who work with them your strength to endure and your courage to triumph in things we attempt for

the good of this land we love. we ask this in your righteous name. amen. the presiding officer: please join me in reciting the pledge of allegiance to the flag. i pledge allegiance to the flag of the united states of america, and to the republic for which it stands, one nation under god, indivisible, with liberty and justice for all. the presiding officer: the clerk will read a communication to the senate. the clerk: washington, d.c., may 17, 2011. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable jeanne shaheen a senator from the state of new hampshire to perform the duties of the chair. signed: daniel k. inouye, president pro tempore.

mr. reid: madam president? the presiding officer: the majority leader. mr. reid: following any leader remarks, the senate will be in executive session to consider the nomination of susan carney of connecticut to be a united states circuit judge for the second circuit. there will be two hours of debate. roll call vote on confirmation of the carney nomination will begin shortly after noon today. there's a celebration going on in the rotunda, and we want to make sure it doesn't interfere with that, so we'll hold the vote open and make sure that any stragglers can vote. following the vote, the senate will recess until 2:15 to allow for our weekly caucus meetings. at 2:15, the senate will begin the motion to proceed on s. 940, the close big oil's tax loopholes act, four hours of debate. there will be a roll call vote at approximately 6:15 this evening, and a motion to proceed to the bill with a 60-vote threshold. additionally, the senate will debate the motion to proceed with the republican alternative to close the big oil tax and loopholes act which is s. 953,

offshore production and safety act. that will be tomorrow. there will be a roll call vote on the motion to proceed to that bill tomorrow afternoon. that also, of course, will have a 60-vote threshold. i'm told that h.r. 1231 is due for a second reading. the presiding officer: the clerk will read the title of the bill for the second time. the clerk: h.r. 1231, an act to amend the outer continental shelf lands act and so forth and for other purposes. mr. reid: madam president, i would object to any further proceedings at this time. the presiding officer: the bill will be placed on the calendar under rule 14. mr. reid: madam president, as we learned today from articles around the country -- and i'll refer just briefly to one in "usa today" -- and i quote -- "as gas prices whoever near a $4 a gallon price, nearly 7 in 10 americans say the high cost of fuel is causing financial hardship for their families, a"

usa today "gallup poll finds. more than half say they have made major changes to compensate for the higher prices, ranging from shorter trips to cutting back on vacation travel. they say their standard of living is jeopardized." it goes on to indicate that the situation involving gas prices is very, very focused. and in the lives of some, drastic. madam president, the other issue that the american people face -- and they should -- is we have to do something about -- raising the debt ceiling. we can only do that, democrats, republicans agree by doing something about bringing down the deficit, and it has to be something that's meaningful. a place to start in that regard would be to focus on these gas prices, how concerned people are, and in addition to that,

the deficit. we have a bill that we'll vote on this evening that says the subsidies given to oil companies, the five big oil companies, last quarter which made $36 billion -- that's net profit -- we're saying that those subsidies are no longer necessary. we've had over the years a number of executives from these companies who have said they're not necessary. they're now trying to justify these, well, if we don't do this, it's going to cause gas prices to go up. we had a report by congressional reference service, independent body, who quoted in three different -- different places in that report that it won't affect gas prices at all. they said it in different ways, but they said it. so, number one, of course we have to do something about the exorbitant gas prices, and the best way to start with that is to do something about the five big oil companies getting subsidies they don't need. the other way to do it, the

other thing we have to be concerned about are the huge deficits that we've had, and we can accomplish both of those to some degree today by doing something this evening when we vote on taking away those huge subsidies the oil companies no longer need. mr. mcconnell: madam president? the presiding officer: the republican leader. mr. mcconnell: last week, as gas prices continued to climb, squeezing family budgets and putting more pressure on already struggling businesses, democrats here in congress sprang into action. instead of actually doing something about high gas prices, our democratic friends staged what one of my republican colleagues accurately described as a dog and pony show. they rounded up what they

believed were a few unsympathetic villains who they could blame for high gas prices, hoping nobody would notice. they don't have a plan of their own to deal with those high gas prices. that's been the democratic strategy from the beginning. blame this crisis on somebody else and see if they can't raise taxes while they're at it. they have been so shameless about it, in fact, they haven't even pretended they're doing anything to lower gas prices, readily admitting the bill we'll vote on today won't lower gas prices by a penny. as the democratic chairman of the finance committee put it just last week, that's not the issue. well, i would submit that for most americans, high gas prices is, in fact, the issue, and this week, democrats will show once again how little they care about it when we take up an energy plan that several more of them have admitted will do absolutely nothing to lower the price of gas at the pump. one democratic senator, a member of their own leadership team, called the bill a gimmick.

another democratic senator called it laughable. i would also argue that with americans looking for real relief, symbolic votes like this that aim to do nothing but pit people against each other will only frustrate the public even more. americans really aren't interested in scapegoats. they just want to pay less to fill up their cars. that's why this democratic bill to tax american energy is an affront to the american people, and so is the president's announcement over the weekend that he now plans to let these same energy producers lease lands throughout the u.s. that his administration had previously blocked off. now, the administration knows perfectly well that leasing, the act of lease something just the start of the development process, which is why its only hope is that the american people don't pay close attention to the details of the plan. permits, madam president, permits are what really matters. and by refusing to issue permits

in any meaningful way, the administration is showing its true colors in this debate. if the administration were serious about increasing domestic energy production, it would increase leases and, most importantly, it would increase permits. in the end, the only thing democrats will actually achieve this week is to make republican arguments for comprehensive energy legislation seem even stronger than they already are. by pretend to go want an increase in domestic energy production, the president is not only acknowledging that the u.s. has vast energy resources of its own waiting to be tapped, he's also acknowledging that tapping these resources would at some point help drive down the price of gas at the pump. now, that's what republicans have been saying all along. now the president is acknowledging that supply matters, and american supply matters even more. so the only thing that seems to be standing between republicans

and democrats at this point is the democrats don't seem to have the political will to follow through on their conclusions, and in this, today's democrats are no different from their predecessors. literally for decades, democrats from jimmy carter to president obama have sought to deflect attention from their own complicity in our nation's overdependence on foreign oil. every time gas prices go up, they pay lip service to the need for domestic exploration while quietly supporting efforts to express it -- suppress it, but president obama's energy policy puts the current administration in a whole new category. over the past two years, the president has mounted nothing short of a war on american energy. canceling dozens of leases, imposing a moratorium off the gulf coast, arbitrarily extending public comment periods and increasing permit fees. on the crucial issue of permits,

the administration has held them up in alaska, the rocky mountain west, and particularly offshore. every one of those decisions has had a major impact on future production and on future jobs. since every permit the administration denies is another job creation opportunity denied. so the truth of the matter is the obama administration has done just about everything it can to keep our domestic energy sector down and to stifle the jobs that come along with it. until now, the president has stuck to attacking republicans for being stuck in the present without preparing for the future, but this has always been a disingenuous argument. it ignores history, since we have repeatedly supported alternative fuels and renewable energy as well as comprehensive energy legislation that commits us to the development of cleaner technologies, and it ignores science. since even if a million electric vehicles are sold here by 2015,

they still would only account for less than ..5% of the entire u.s. vehicle fleet. however much we desire it, the transition from oil will take decades and serious energy policy must account for that. with this latest gambit, the president may have acknowledged the wisdom of our approach, but his plan to allow a few lease sales without corresponding permits fall short. energy producers might end up with a lot of expensive land, but the rest of us would have nothing to show for it. a better approach to this crisis is the republican alternative that we'll get a vote on tomorrow. our bill would return american offshore production to where it was before the administration locked it up, require federal bureaucrats to process permits, to make a decision one way or the other -- process the permit, make a decision one way or the other, rather than sitting on the permit. and it would improve offshore

safety. our plan not only acknowledges the importance of increasing domestic production, it does something about it while ensuring environmental safety. if president obama and his party are really serious about lowering gas prices, making us less dependent on foreign oil and creating the thousands of jobs that american exploration has proven to produce, they would embrace our plan and stop pretend to go care about a crisis they have done so much to create, and their latest public relations efforts notwithstanding, continue to ignore. now, madam president, on another matter, this week, we commemorate national police week 2011 and honor the service and sacrifice of the many men and women in federal, state and local law enforcement across america.

washington welcomes thousands of police officers who have come to celebrate national police week. they will honor their fallen fellow officers and rededicate themselves to their mission of serving and protecting their neighbors and their communities. among the visitors are hundreds of officers from my home state of kentucky. i want to personally welcome them to the nation's capital and express my gratitude to them for bravely laying their lives on the line to protect towns small and large all across the commonwealth. approximately 900,000 peace officers -- police officers are serving across the country. every year 140 to 160 are tragically killed in the line of duty. 2011 has already proven to be a difficult year as 69 law enforcement officers nationwide have been lost in the line of cute joy far compared with 59 at this point a year ago. to recognize those police officers who lost their lives in

the line of duty and their loved ones, i was pleased to cosponsor a resolution designated may 14, 2011, as national police survivors' day. this resolution which passed the senate unanimously calls upon the nation to honor the families of fallen law enforcement officers and to pay respect to the courageous men and women who have made the ultimate sacrifice while serving to keep our communities safe. in my state, in the town of rich mopped, the kentucky law enforcement memorial monument stands as a permanent reminder of the high cost of protecting the peace. at a solemn ceremony last week 24 names were added to its roles bringing the total to 485. i know my colleagues will join me in saying the u.s. senate has the deepest admiration and respect for police officers in every community across america. we recognize theirs is both an honorable job and a dangerous one. they bravely risk their lives

for ours. america appreciates everything they do and america is grateful to them and to their families. madam president, i have here a list of 24 names that were added to the kentucky law enforcement memorial monument this year and i ask unanimous consent that the names of those heroes appear in the record following my remarks. the presiding officer: without objection. mr. mcconnell: and, madam president, i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call: mr. mcconnell: i request that the quorum call be suspended. the presiding officer: without objection. the presiding officer: under the previous order, the leadership is reserved. under the previous order the senate will proceed to executive session to consider the following nomination, which the

clerk will report. the clerk: nomination, susan l. carney of connecticut to be united states circuit judge. the presiding officer: under the previous order there will be two hours of debate equally divided and controlled between the senator from vermont, mr. leahy or the senato senator grassley. mr. mcconnell: i suggest the absence of a quorum and i ask that the time be charged to both sides. the presiding officer: without objection. the clerk will call the roll.

a senator: madam president? the presiding officer: the senator from connecticut. a senator: thank you. madam president, i rise today -- the presiding officer: the senate is in a quorum call. mr. blumenthal: i am sorry, madam president. i ask unanimous consent that the quorum call be dispensed wsm. the presiding officer: without objection. mr. blumenthal: thank you, madam president. i rise today to voice my strong support for the nomination of susan carney to serve as an appeals court judge on the second circuit court of appeals, one of our most distinguished appeals court panels among the federal circuit. and i hope that the united states senate will move swiftly to confirm her to fill one of

the open seats on this critically important court. ms. carney has truly impressive credentials for appointment to the federal bench. she graduated couple laud from harvard and magnum mum laud fr from -- she then went to clerk for judge levin campbell. she serves as deputy general counsel for yale university. one of country's great institutions of higher learning and previously served as an associate general counsel for yale. in her capacity at yale she advises the university on a wide range of legal issues, some of them complex and challenging, relating to intellectual property, international

transaction and commercial matters. ms. carney's time at yale has exposed to her a broad array, a diverse swath of federal law giving her a breadth of experience that truly qualifies her to serve on the second circuit, which handles federal appeals on legal issues arising within new york, vermont, and connecticut. in various matters ms. carney has advised yale in reaching very successful results and that experience will serve her well on the bench, her experience as an advocate has given her a perspective that will give her the kinds of qualities a respect for other advocates who come before the court, a respect for

the legal principles at stake, for the factual findings of courts below, and of all the considerations that are so critically important to ability and integrity on the federal court of appeals. she spent 17 years working as a private practice attorney in washington, d.c., and boston, and, thereto, she represented a wide array of clients on major issues including, for example, major league bearabl baseball association. in the tennessee court the nlrb determined that striking employees could not be replaced and the d.c. circuit issued a similarly positive verdict. as impressive as her commercial and private litigation is, her commitment to pro bono, public

service work. she engaged in such work throughout her time as lawyer offering free legal counsel to pro bono clients and even volunteering as a tutor. her commitment to the community as well as appropriate legal representation for all clients demonstrate a real respect for the legal system and the fairness shall the fundamental fairness of the legal system that i believe should be and is broadly shared by members of the federal bench. her nomination comes at a particularly pressing and challenging time for the second circuit. the vacancy that she's slated to fill has been designated as a judicial emergency. the vacancy has existed since october 10, 2009. there are two open seats on this court from connecticut, which is

currently more than 15% understaffed. so the arrival of susan carney to the second circuit will have immediate impacts. it will help immediately to address the understaffing problem and the work burden that has accumulated as a result of it and it will ensure that this caseload can be addressed quickly and efficiently. we hear in this body the famous saying that justice delayed is justice denied. truly it is often justice denied if it is delayed. and in practical circumstances, people have a right to their day in court, which includes a day in the court of appeals. in the federal courts that appeal is generally one of right. it is not discretionary. and to deprive people of that

right is truly a denial of justice. i've been impressed since i have come to the senate by the good faith that has been shown by both sides in working to address this growing judicial vacancy issue. some have thought it an epidemic in. in many circuits its been characterized as a judicial emergency. and it has been spurred by respected figures from across the spectrum, from chief justice roberts to attorney general holder and the senate has been moving very responsively and responsibly to address this issue and i'm hopeful that this nomination of susan carney and others that will follow as some have preceded it, will lead to a new era in addressing the

judicial vacancy problem throughout our federal courts much the american people expect us to work together just as they expect the kowts to give them justice and so far i've been encouraged to see members of both parties working with the senate to act expeditiously on these nominations. some of them very long delayed. and i hope that the senate will continue this trend with the swift confirmation of susan carney to the second circuit. on the issue of emergencies, i'd like to address a second topic, madam president. over the last decade what we've seen is a pattern of rising profits on part of oil companies, the emergency for consumers is one of rising prices now. and i believe that we have an obligation to assure fundamental fairness in our tax code by

eliminating, in effect, the tax subsidies and loopholes and giveaways that are such an offense to the justice and fairness of our system. in spite of the big five oil companies earning more than $1 trillion in profits, they have enjoyed tens of millions of dollars in these taxpayer subsidies. they are unconscionable. they are unacceptable. they must end. and that is the purpose of the legislation that we are going to consider later today. i strongly support it in the interest of consumers, but more important, in the interest of taxpayers to repair a part of our deficit while families and business in connecticut paying more than $4.25 a gallon, putting a strain on all of our family budgets.

the big oil companies continue to rake in these big profits and continue to put a dent in our fiscal situation. the companies make ove over $30 million in profits in the first-quarter of this year alone representing a 50% increase in profits from last year. the long and short of this debate is that big oil doesn't need these subsidies. they don't need the help of american taxpayers to do exploration or any of the other activities that are involved in producing the profits that they enjoy so abundantly. ending these subsidies, despite claims to the contrary, will not increase prices at the pump and, indeed, will provide for basic fairness so that americans no longer have to pay for these giveaways and tax breaks to some of the most profitable companies

in the world. people in my home state of connecticut and across the country remain concerned about reducing our debt rap our deficit. we -- debt and our deficit. we can't do it if we have this plethora of subsidies and giveaways and breaks to special interest and corporations, like big oil, that simply don't need it. ordinary americans in connecticut and elsewhere are struggling to stay in their homes, find jobs, keep their families together, and they regard these subsidies as offensive to fundamental fairness and they are right and i urge this body to act later today in eliminating those loopholes an subsidies. i thank -- and subsidies. i thank you, madam chairman.

mr. inhofe: madam chairman? the presiding officer: the senator from oklahoma. mr. inhofe: mad a.m. chairman -- madam chairman, i understand that i have 10 minutes as if in morning business. i would make that request. the presiding officer: without objection. first of all -- mr. inhofe: first awful we are going to vote on a bill to dramatically increase taxes on america's oi oil and gas compan. i would only suggest that it's not going to pass. i can recall when the senator from vermont, just a few months ago, had a bill that would have done essentially the same thing, passed the tax increases on these oi oil and gas companies. i remember coming to the floor at that time and -- and -- and give the argument against it and -- and the -- and it ended up we had a vote on it. the vote was -- i had 61 votes against it to 30, however it worked out that were for it. afterwards, i have to say this

about senator sanders, he came up and said i think that was probably one of the healthiest debates and more honest debates that i've seen during the years i have been in the united states senate, and i agreed with that. it's just that the idea that you can somehow tax these people and accomplish something, let me -- let me just say that the congressional research service service -- when you talk about c.r.s., that's nonpartisan, it's something that nobody argues with. they look at us. we in the united states have the largest recoverable reserves of oil, gas and coal of any country in the world. there's no reason in the world we can't be completely independent of the middle east. all we have to do is explore our own resources, oil, gas and coal. now, this same congressional research service has looked at the issues and has told us that raising taxes on energy companies will do two things. it will decrease supply, it will increase dependence on foreign -- foreign countries. in other words, this vote that we're going to have this

afternoon, if it were successful, that would increase the -- decrease the supply and increase our dependence on the middle east. now, how do -- in addition to the c.r.s., let's go back to the 1970's under the carter administration when they had the windfall profit tax. in the windfall profit tax, the same exact thing happened. it decreased supply and increased dependence on foreign competition. so, you know, and the interesting thing -- i know my wife's not the only one complaining about the price of gas at the pumps, but she is certainly very loud and clear in that position. nobody is saying that by increasing the taxes, the vote we're going to have this afternoon on oil and gas companies, that somehow that's going to have the effect of lowering prices at the pump. it will raise prices at the pump. in fact, i think the -- several of the members have come down, senator menendez, the sponsor of the energy legislation, he said -- quote -- "nobody has made the claim that this bill is

about reducing gas prices." if it's not about reducing gas prices, what is it for? and the answer of that one is they say oh, it's as -- as the gentleman, the senator from connecticut just stated, this is going to be something that is going to be reducing the deficit. well, our problem is the -- president obama and his democrat support in the house and the senate, the first two years he had a large majority, the democrats in the house and the senate, they increase in his three years of budgets the deficit by over $5 trillion. i can remember going to the floor of the united states senate back in 1995, back during the clinton years, and saying this is outrageous. this is a $1.5 trillion budget. that was the budget to run the entire united states of america. this last budget by president obama was an increase of of $1.65 trillion, just the deficit, just the deficit. now, let's do our math.

365 days in the year. it works out to be $4 billion a day. we have a president and his majority giving us a $ -- giving us a $4 billion a day deficit, and this says it's going to cut the deficit by $2 billion. so we can tax all these oil companies, come up with enough money to reduce the deficit by by $2 billion. that's worth one half day deficit of this administration. i know that the majority of people understand that and they're not going to be duped into -- into doing it. by the way, i have to say that fortifying me was this morning's editorial in the "usa today." they talked about how ludicrous this whole idea is that you can increase taxes on oil and gas companies, and they say -- quote -- "it's an example of the sort of political gamesmanship that substitutes for serious and deficit reduction." they go on to say -- quote -- "did you in the initiative, it's

also government at its arbitrary worst, further complicating the tax code by singling out five companies -- exxonmobil, chevron, conocophillips, shell and b.p. -- for special taxes not paid by smaller energy concerns." so we have a little class warfare going with it. it's interesting because only yesterday the same "usa today" was criticizing me in their editorial policy because i don't want to pass a cap-and-trade tax increase. and so the same paper that yesterday was critical of a position that i've taken is now very strongly in position of the position i've taken in -- in avoiding any additional taxes on the energy company or anybody else. now, the last thing i would say, because i am going to stay within my time frame, is if people say they want to do something about the deficit, that's what they say they're doing. this is one half a day's deficit

they're taking care of here if they pass these tax creefs, which they won't. but they say there are only two ways to handle the debt. that one would be to decrease spending, the other to increase taxes. i suggest there's a third way, and that way is to go after all these regulations that we currently are -- are operating under right now as a result of this administration. we're talking about cap-and-trade regulations, greenhouse gas regulation, boiler regulation. the ozone. the ozone could create over 600 noncontainment areas. the cost of that is $90 billion. if you add up all of the costs of all of these different regulations, greenhouse gas regulations, $300 billion to to $400 billion a year, boiler mack, $1 billion. utility, $184 billion. add it all up, it's $1 trillion. if you take the trillion dollars, that is 7% of the the $14 trillion that we would save -- the g.d.p. would amount

to. what they say, and c.r.s. says this also, for every 1% increase in economic activity or increase in g.d.p., that translates in new revenue $50 billion of each percent. this is 7%. that would be $350 billion. if you want to go after the deficit and after deficit spending in the debt, let's go after the regulations, too. don't let them out. but to think that we can tax oil and gas companies and somehow come up with $2 billion to reduce the deficit, that's one day's deficit under the obama administration, and this body's not going to pass it. with that, i'll yield the floor. the presiding officer: the senator from tennessee. mr. alexander: madam president, i congratulate the senator from oklahoma in making a perfectly obvious and compelling point, which the problem is high gasoline prices. and why is the democratic solution to raise them more? which is all that their tax would do.

the republican plan for dealing with high gasoline prices is to find more american energy and use less. the democratic plan seems to be to find less and tax more. that's not going to solve the problem. we need to use less, we agree with that, and there are a variety of ways to do that, through conservation, electric cars, which i favor. finding research for crops -- for alternative fuels from crops that we don't eat, all that. but more importantly, we need to find more american energy and natural gas offshore, on federal lands and in alaska. that won't completely solve the problem of high gasoline prices, but it will help. if less oil from libya is a factor in raising gasoline prices, more oil from the united states would be a factor in lowering gasoline prices. we still, after all, are the

third largest producer of oil in the world. so i thank the senator from oklahoma for an excellent point. the democratic proposal is to find less american energy and to tax more. now, today, madam president, i'd like to talk about another subject. i'd like to speak about the events of the last few weeks that have followed the decision by the national labor relations board council to file a complaint against the boeing company alleging basically that the fact that they are expanding their production of airliners at a new plant in south carolina, which is a right-to-work state, is prima facie and evidence of an unfair labor practice. this in effect establishes for the first time since the taft-hartley act was passed in 1947 the idea that it is against the federal law for a company that is producing in a union

state to move -- to expand its facilities in a right-to-work state of which there are 22. what we're talking about is the first new plant in 40 years to build large airplanes. the boeing company builds most of its planes in washington state. it's the nation's largest exporter. it has 170,000 employees around the world. 155,000 of them are employees in the united states. these are good jobs. but at the hearing on thursday, the general counsel of boeing said that boeing expects to lose the appeal of the general counsel's -- well, of the decision of the general counsel when it's heard before an administrative judge on june 15, and then they expect to lose the appeal of that decision to the national labor relations board because he assumes that the

general counsel is following the same view of the law that the president's appointees on the national labor relations board are following. and then he expects to win the case when it goes to the united states court of appeals or perhaps even to the supreme court. but that takes, madam president, two to five years for all that to happen. so i ask what happens to american jobs in the meantime? well, first, this complaint against boeing will slow the number of good new jobs into my state of tennessee, which has a 9% unemployment rate and has had for two years. i've watched our state grow over the last 30 years, from the time i was governor. we had a hearing last week that senator harkin called, chairman of the health, education and labor committee, about middle-class incomes, and what i said at the hearing was the effect on middle-class incomes

in tennessee, the state i know the most about, is that 30 years ago we were the third poorest state, and then because the auto industry chose to come to our state, partly because it was a central location in the population market and partly because it's a right-to-work state with a different sort of labor environment in it than other states, because the auto industry came to tennessee, middle incomes have gone up. a third of our manufacturing jobs in our state are now auto jobs. nissan is there, general motors is there, volkswagen just came there. hundreds of suppliers have come to tennessee. they like the environment. they like the road system. they like the central location, but they like the right-to-work law. and for suddenly any supplier or any manufacturer who wants to create a new facility in one of the 22 right-to-work states, including tennessee, according

to this council, is going to have to think twice because that company -- which could be a small company -- may not want to spend two to five years before the national labor relations board. so i think this council knew exactly what he was doing. he was trying to freeze job expansion in the united states at a time when we need job expansion in the united states. madam president, there is an unintended consequence to this. if jobs can't move into tennessee and other trite work states because of the boeing complicate they may not move into the states that don't have a right-to-work law. according to the c.e.o. of boeing, he said and you intended consequence, he means of the boeing complaint, is that forward thinking chief executive officers also would be reluctant to place new plants in unionized states less they be forever restricted from placing future plants across the country.

so if you want to put a plant in, say, michigan, which is a unionized state, you might not do that because under the general council of the nlrb's rule of law, you then couldn't move to south carolina or to tennessee or to arkansas or to any other state with a right-to-work law. well, if you can't go to a unionized state and if you can't go it a right-to-work state, where do you go if you want to make things? you go overseas, madam president. this action by the nlrb general council is the single most important action that i can imagine that would make it more difficult to create good, new jobs in tennessee and that would make it more likely that manufacturing jobs would go overseas. madam president, the president -- the president of the united states asked the chief executive of boeing, mr. churny, to chair the export

council. i presume that mr. obama would like mr. mcnerni to do is export airplanes, not export jobs. but what the nlrb ruling will do is cause the export of jobs, not the export of airplanes. boeing has 170,000 employees. most of them today are in the united states. but boeing sells its airplanes everywhere in the world and boeing can make its airplanes anywhere in the world. and so there may be other countries who come to boeing and to other manufacturers in the united states who say, we want you to make in our country what you sell in our country. and after this nlrb decision, they may be more tempted to do that. now, fortunately, there are other trends suggesting that -- that manufacturing companies around the world may be more likely in the next few years to make here what they sell here in the united states.

that's what president carter said to us governors 30 years ago. governors go to japan persuade them to make in the united states what they sell in the united states. off i went to tokyo and i asked nissan to come to tennessee. they chose us because of our education an right-to-work law just as many other auto jobs have done that. nissan tells me that soon they will be making 85 opinion of what they sell in the united states, they'll be making it in the united states. 30 years ago they were making almost none of what they sold in the united states here in the united states. they're making it in japan. we were worried then japan was going to take us over. but that's changed. now they're making here what they sell here. the economist article this week says that there may be a -- a manufacturing renaissance company. what's happening in china, where they're making things today, is a lot like what happened in japan 30 years ago. it's china becomes more prosperous, wages will go up.

as japan became more prosperous 30 years ago, wages weren't up. and so -- went up. so in the auto industry wages was 70% or 80% in what a supplier may spend to make a part in an assembly plant, it gets to be less important and people look at other things and so manufacturers would look at a variety of actions by a government before the manufacturer decides where to make the airplane or where to make the car or where to make the appliance that might be sold in a country. well, they're going to have plenty of incentives naturally to make a lot of things in the united states because the country that -- that has pro -- produces 25% of all the money in the world which we do is going to be buying a lot of stuff unless we do our best to throw a big, wet blanket on making here what we sell here which is precisely what this administration has been doing. we have a high corporate income

tax. now give the president the credit. he said, maybe we want to change that, well, we should. because it makes it better for manufacturers to make things overseas. the health care law takes the profits away from companies that they might use to create new jobs here. i've had heads of restaurant companies here they're not going to invest anymore in the united states because the health care taxes take away all of their profits, regulations that make credit harder to get, regulation that's drive up energy an gasoline prices, all of this makes it harder to make here what manufacturers sell here. and now we have a regulation from the national labor relations board that may affect the law for two to five years that says prima patienta evidence of unfair labor practices that a company producing in a union state moves to a right-to-work state. this is an assault on every

middle-income tennesseans and every middle-income american. as the boeing chief executive said, it could be just as much of a disincentive to a state like michigan or illinois or some other state that does not have a right t right-to-work la, because if -- why would you put a plant in michigan if later you wouldn't be allowed to put it in tennessee. if general motors has plants in both right to work and nonright-to-work states. so we're going to make it more difficult for general motors to expand in america, so where are they going to expand? they can expand overseas. they can be making there what they sell there instead of make it here. some of my friend on the other side of the aisle like to talk about outsourcing jobs. this is the mother of all outsourcing jobs plans, the idea that's prima facia evidence for a company that expands in a

right-to-work state that that's an unfair labor practice. so, madam president, for the next two to five years we have the unhealthy situation for jobs that any manufacturer who wants to expand will have to think twice about expanding in a right-to-work state and then think at least once about coming in the first place to a state that doesn't have a right-to-work law. and the only other option i can see for those jobs is to make them overseas. that will not only slow job growth in the united states where we desperately need it, but it will be speeding up the sending of american jobs overseas. madam president, i ask consent to place in the record two articles. one by george will this week on the south carolina boeing plant and the action of the national labor relations board complaint

and the second an article from "the economist" magazine. the presiding officer: without objection. mr. alexander: thank you, madam president, i yield the floor and i notice the absence of a quorum. the presiding officer: the clerk will call the roll.

the presiding officer: the senator from tennessee. mr. alexander: i ask consent that the quorum call be vitiated. the presiding officer: without objection. mr. alexander: i ask consent that the quorum call time be equally divided. the presiding officer: without

mr. lieberman: madam president? the presiding officer: the senator from connecticut. mr. lieberman: madam president, i ask unanimous consent that further proceedings under the quorum calldispensed with. the presiding officer: without objection. -- quorum call be dispensed with. the presiding officer: without objection. mr. lieberman: madam president, i rise today to offer my full support for susan carney of my state of connecticut who is the president's nominee, now approved by the judiciary committee, to serve on a very important circuit court, the united states court of appeals for the second circuit. susan carney's legal education and long career of public service, i think, will make her a valuable addition to the federal bench. i thank president obama for his decision to nominate ms. carney, and i urge my colleagues across party lines to confirm her nomination when it comes to a

vote in a short while today. ms. carney, as a matter of record, was quickly reported out of the judiciary committee with a bipartisan vote of 15-3 on february 17 of this year. this, in fact, was the second time that she had -- her nomination had been reported out of the committee with broad bipartisan support. if confirmed, susan carney will be -- will fill one of two judicial vacancies on the second circuit, vacancies which the administrative office of the u.s. courts has declared to be emergency vacancies. and as i've said, she has been thoroughly vetted twice by the committee, the judiciary committee, and earned bipartisan

support both times. i'd like to just take a moment to provide some background on the nominee's credentials. susan carney has a very diverse legal background, both in private practice and working for the peace corps and most recently serving as the deputy general counsel at yale university. for the past 12 years, she has served in that position, and as yale's president, richard levin put it, "susan carney has served the university with insight, intelligence and superb legal skills." he added that she has never failed to be guided by what he referred to as -- quote -- "her firm ethical compass." end of quote. in her capacity as general counsel, ms. carney was the second highest legal officer at yale, which is, of course, not

just the great educational and research institution but has an operating budget of more than than $2 billion annually, more than 12,000 employees and more than 11,000 students. so there is a lot of legal work to do there. ms. carney's portfolio included a variety of complex areas covered by federal law, including scientific research, intellectual property and health care. she also managed other legal elements of yale's transactions with institutions throughout this country and the world. ms. carney served as a law clerk to judge levin hicks campbell on the u.s. court of appeals for the first circuit before entering private practice. she's been admitted to practice in seven courts including the united states supreme court, the u.s. court of appeals for the first circuit, and the u.s.

court of appeals for the ninth circuit. she's a member of three different bars, the massachusetts bar, the district of columbia bar and the connecticut bar and has also served on the board of directors of the national association of college and university attorneys. this is a superbly qualified individual with a broad background and a host of different legal -- in a host of different legal fields which she will bring to the bench. i think most significant of all, and she obviously impressed both parties on the judiciary committee, she's balanced. she's open-minded. she will -- she will adjudicate according to what president levin called her firm ethical and moral com compass.

therefore i hope there will be a strong vote of support to send susan carney to the second court of appeals where she will serve the cause of justice in america very, very well, indeed. i thank the chair. i yield the floor and i -- and i'll wait just a minute. before yielding the floor, madam president, i have nine unanimous requests for committees to meet during today's session of the senate. they have the approval of the majority and minority leaders, i ask unanimous consent that these requests be agreed to and that these requests be printed in the record. the presiding officer: without objection. mr. lieberman: i thank the chair and now i would suggest the absence of a quorum. the presiding officer: the clerk

the presiding officer: the senator from iowa. mr. grassley: i ask that the calling of the quorum be suspended. the presiding officer: without objection. mr. grassley: i come to the floor to address for my colleagues and the public at large the issue of the nomination of susan carney, nominated for the second circuit and we'll soon be voting on that. today's vote marks the 24th judicial confirmation this year and the 16th for a seat designated as a judicial emergency. this also marks the fourth vacancy to the second circuit that has been filled by an obama nominee. over the past two weeks,

nominations-related work has taken up the vast majority of the senate's time. in fact, after today, we will have confirmed seven judges in just nine days. last week alone, we had a cloture vote on the nominee to be deputy attorney general, debate and votes on three district court nominees and two judicial committee -- judiciary committee markups. this year, the compete has reported -- the committee has reported 51% of president obama's nominees, yet it seems that the more we work with the majority on filling vacancies, the march complaints that we hear. furthermore, as we work together to confirm consensus nominees, we're met with the majority's insistence that we turn to controversial nominees. so i want to address some of the

complaints that we have heard. i think about the american conservative society log or some of my colleagues in the senate here who say that we're not moving fast enough on president obama's nominees, and i want to point out to them that that's yect -- intellectually dishonest. they may be ignore about some of the statistics that involve the nominees we have approved so far versus what has been done in other administrations, but i want to show that it's an outright flat lie that we're not processing nominees fast enough. given the pace of activity in our committee and on the floor, there's just no credibility to the arguments that we're not moving fast enough. last week, it was stated that the senate is well hyped on president obama's nominations. so i would provide perspective

perspective -- well behind on president obama's nominations. so i would provide perspective on that assertion. for comparable time periods, we have processed and confirmed a greater percentage of president obama's nominees. when we get done with the vote that we're going to take in about 30 minutes, we will have confirmed 33% of president obama's nominees nominated this year. that compares to only 28% of president bush's nominees confirmed in a comparable time period. furthermore, president obama's nominees are moving much faster through the committee process. president obama's circuit court nominees have waited only on average 72 days from nomination to hearing. president bush has had to wait on average 275 days during his

first term. for his entire presidency, that averaged almost 247 days. president obama's district court nominees are only -- are also fairing better, waiting on average only 70 days for their hearing. president bush's district court nominees had an average wait of closer to 100 days, and that was during his first term, and an average of 120 days throughout his entire presidency. these statistics and our continued action moving on consensus nominees refutes the argument made by those who continue to falsely claim that there is a systemic delay and partisan obstruction of judicial nominees by republicans in the senate. and so i want those people and those organizations and their

blogs that are making these dishonest comments about how slow we move to put those statistics that i just gave in their pipe and smoke it. my concern, today we're going to vote on the nomination of susan carney. this will be for the u.s. circuit judge for the second circuit. ms. carney received her a.b. cum laude from harvard university in 1973 and her juries doctorate magna cum laude from harvard law school in 1977. upon graduation from law school, she clerked for judge campbell on the first circuit and then entered private practice. after eight years of private practice, ms. carney was self-employed for the next six years, engaged in contract legal work and doing consulting. in 1994, the nominee returned to legal practice as counsel to

bretthoff and kaiser here in washington, d.c. in 1996, she moved to the peace corps where she served as associate general counsel for two years. in 1998, she joined the general counsel's office at yale university where she has been the deputy general counsel for the past nine years. my concern with ms. carney's nomination is her lack of experience. she has judicial experience and has limited litigation experience. ms. carney has never authored any scholarly legal work of note, and much of her work product provided to the committee consists of presentations about various legal issues faced by research universities. her qualification for the court of appeals and indeed the reason for the president's decision to nominate her to the second circuit remains somewhat of a mystery. according to her questionnaire, ms. carney appeared in court

occasionally over the course of her career, and those words occasionally are her own. she has never tried any case to verdict, judgment or final decision, and absent, she explains by saying that she -- quote -- "spent her law career as an appellate lawyer and in-house counsel." end of quote. her questionnaire suggests that she has never argued a case in an appellate court. during her most recent legal job, ms. carney has focused largely on contractual issues such as scientific research partnerships between academic researchers and for-profit industry, international partnerships involving yale and intellectual property ownership issues. her questionnaire reveals no litigation experience in the last 15 years of her career and it is unclear how her position with yale university might have prepared her for the federal judicial appointment, much less

one on the courts of appeal. the a.b.a., meaning the american bar association, standing committee on the federal judiciary gave her the rating -- quote -- "substantial majority equalified, minority not qualified." end of quote. even though the reasons behind the ratings are not released, i suspect the not qualified rating stems from her lack of litigation experience. this nominee does not have the concrete judicial experience i favor. i know others share this view. the judiciary committee reported this nominee by a vote of 15-3 with three republican oppositions in opposition, not including this senator. i take their views seriously and fully understand why senators would not support this nomination. nevertheless, with little enthusiasm for her nomination, i will give her the benefit of the doubt and support the nominee. i yield the floor and suggest

the absence of a quorum. the presiding officer: the clerk will call the roll.

mr. leahy: mr. president? the presiding officer: the senator from vermont. mr. leahy: mr. president, i ask consent the call of the quorum be dispensed with. the presiding officer: without objection. mr. leahy: mr. president, today the senate is finally considering the mo nomination of susan carney of connecticut to fill a seat on the court of appeals for the second circuit a seat that is actually judicial emergency vacancy. now, i raise this because i've expressed concern on -- on the floor about these judicial emergency vacancies that are going unfilled. not because the president hasn't sent the nomination up here, but because it's delayed. in her case she was twice considered by the judiciary committee. twice reported a strong

bipartisan support. first last year, and months ago in february. the majority of the republicans on the judiciary committee have twice voted in supporting this nomination. i expect she's going to be confirmed with significant bipartisan support, but it should have been done last year. it's one of several judicial nominations that minority republicans refuse to consider even though she's reported favorably by the judiciary committee last year. hers will be the 16th -- only the 16th nomination confirmed this year that could, in my view, should have been considered last year. with 24 judicial nominations, the senate will consider and confirm this year, including ms. carney, but almost 70% were delayed from last year and should have been considered and

confirmed last year. we've only been able to confirm eight judicial nominees at hearings that have been reported for the first time this year. so when some say we're taking positive action on a large percentage of the nominees, what they're saying is that we're taking on many unobjectionable -- unobjectionable nominees that were stalled last year by objections from the republicans. in fact, this is only the third circuit court nomination that the senate's been allowed to consider all year and there have been several others awaiting final senate action. susan carney is currently the deputy counsel of yale university. she has a career of distinguished service. she's one i looked at carefully because, of course, vermont's in the second circuit, as well as

new york and connecticut. in her case i think i'm fortunate the -- i think how fortunate the circuit is to have her. she graduated with honors from harvard and harvard law school, she clerked for senator campbell, she pent 17 years in -- spent 17 years in private practice with significant appellate experience. before becoming associate counsel in the peace corps. she spent the last 13 years in the offices of the general counsel at yale university. she's now yale's second-highest ranking legal officer. her nomination has the strong support of both her home state senators. before he retired from the senate, senator dodd, introduced susan carney, he said that throughout her career susan carney had a breadth of legal

knowledge, well suited to serve on the second circuit court of appeals. perhaps even more important, i believe she has exhibited the kind of temperment and respect for the rule of law. there are absolute components to serving the courts. that's what senator dodd said and i agree with him. he went on to say the ms. carney that she -- she's been a lawyer for 30 years, she has a wealth of experience including 17 years in private practice with experience in appellate litigation. that's what i say about the concerns raised. but i have nonetheless heard this purported concern raised by the handful of republican senators who oppose this extremely well-qualified woman, and i believe that ms. carney's

wide range of experience, a lawyer in private practice, deputy general counsel to one of the world's leading educational research institutions, one with an annual budget that exceed exceeds $2 billion. prepared well to serve on the second circuit. in new york, connecticut, and vermont, the three states represented on the second circuit, senators from each of those three states support her. you know, i -- i did not hear the same republican senators who say this distinguished woman does not have enough judicial experience, they did not note any concerns about lack of judicial experience when president bush nominated and the

senate confirmed 24 nominees to circuit courts with no prior judicial experience, a number with very little trial litigation experience. even as some republicans have opposed this nominee by saying that she does not have sufficient litigation experience, republican senators have recently tried to twist nominees' litigation experience against them. it is not consistent. when a nominee has extensive experience and is a successful trial lawyer, then they say the nominee has too much experience, they're going to be biased by. it republicans opposed judge mcconnell of rhode island because he has an excellent trial lawyer. they posed judge chen of california despite his 10 years as fair and impartial federal judge manning is straight and disregarded his judicial record.

their opposition to president obama's judicial nominees have been anything but consistent. and now they turn around and some will oppose ms. carney, nominee, she has more than 30 years of legal experience, by saying she has not had sufficient experience as trial advocate. she reminds me the story of a mother, her sent to her son two neckties, when she picked up her son wearing one of the two ties, to only hear his mother say, what's the matter? don't you like the other tie? well, the standard seems to change depending upon who president obama sends up here. so let's turn away from such double standards and return to the longstanding senate practice of judging nominees on their merits, not based on caricatur

caricatures. to finally reach a time agreement to have a vote on susan carney, a well-qualified woman, is a welcomed sign of progress. we have a long way to go to go where we were in president bush's first term with democrats in charge for the first half of that when we confirmed 205 of his judicial nomination. what i hope is the other side will start cooperating the way we did with president bush and allow us to ensure that the federal judiciary has the judges it needs to provide justice to america's -- america throughout this country, especially those areas with judicial emergencies. mr. president, i yield the floor. i suggest the absence of a