January 6, 2009 CONGRESSIONAL RECORD — SENATE S131 

(b) FTC ACT.—Section 5(a)(2) of the Federal Trade Commission Act (15 U.S.C. 

45(a)(2)) is amended by striking ‘‘common 

carriers subject’’ and inserting ‘‘common 

carriers, except for railroads, subject’’. 

SEC. 6. EXPANSION OF TREBLE DAMAGES TO 

RAIL COMMON CARRIERS. 

Section 4 of the Clayton Act (15 U.S.C. 15) 

is amended by— 

(1) redesignating subsections (b) and (c) as 

subsections (c) and (d), respectively; and 

(2) inserting after subsection (a) the following: 

‘‘(b) Subsection (a) shall apply to a common carrier by railroad subject to the jurisdiction of the Surface Transportation Board 

under subtitle IV of title 49, United States 

Code, without regard to whether such railroads have filed rates or whether a complaint challenging a rate has been filed.’’. 

SEC. 7. TERMINATION OF EXEMPTIONS IN TITLE 

49. 

(a) IN GENERAL.—Section 10706 of title 49, 

United States Code, is amended— 

(1) in subsection (a)— 

(A) in paragraph (2)(A), by striking ‘‘, and 

the Sherman Act (15 U.S.C. 1 et seq.),’’ and 

all that follows through ‘‘or carrying out the 

agreement’’ in the third sentence; 

(B) in paragraph (4)— 

(i) by striking the second sentence; and 

(ii) by striking ‘‘However, the’’ in the third 

sentence and inserting ‘‘The’’; and 

(C) in paragraph (5)(A), by striking ‘‘, and 

the antitrust laws set forth in paragraph (2) 

of this subsection do not apply to parties and 

other persons with respect to making or carrying out the agreement’’; and 

(2) by striking subsection (e) and inserting 

the following: 

‘‘(e) APPLICATION OF ANTITRUST LAWS.— 

‘‘(1) IN GENERAL.—Nothing in this section 

exempts a proposed agreement described in 

subsection (a) from the application of the 

Sherman Act (15 U.S.C. 1 et seq.), the Clayton Act (15 U.S.C. 12, 14 et seq.), the Federal 

Trade Commission Act (15 U.S.C. 41 et seq.), 

section 73 or 74 of the Wilson Tariff Act (15 

U.S.C. 8 and 9), or the Act of June 19, 1936 (15 

U.S.C. 13, 13a, 13b, 21a). 

‘‘(2) ANTITRUST ANALYSIS TO CONSIDER IMPACT.—In reviewing any such proposed agreement for the purpose of any provision of law 

described in paragraph (1), the Board shall 

take into account, among any other considerations, the impact of the proposed agreement on shippers, on consumers, and on affected communities.’’. 

(b) COMBINATIONS.—Section 11321 of title 49, 

United States Code, is amended— 

(1) in subsection (a)— 

(A) by striking ‘‘The authority’’ in the 

first sentence and inserting ‘‘Except as provided in sections 4 (15 U.S.C. 15), 4C (15 U.S.C. 

15c), section 15 (15 U.S.C. 25), and section 16 

(15 U.S.C. 26) of the Clayton Act (15 U.S.C. 

21(a)), the authority’’; and 

(B) by striking ‘‘is exempt from the antitrust laws and from all other law,’’ in the 

third sentence and inserting ‘‘is exempt from 

all other law (except the antitrust laws referred to in subsection (c)),’’; and 

(2) by adding at the end the following: 

‘‘(c) APPLICATION OF ANTITRUST LAWS.— 

‘‘(1) IN GENERAL.—Nothing in this section 

exempts a transaction described in subsection (a) from the application of the Sherman Act (15 U.S.C. 1 et seq.), the Clayton Act 

(15 U.S.C. 12, 14 et seq.), the Federal Trade 

Commission Act (15 U.S.C. 41 et seq.), section 

73 or 74 of the Wilson Tariff Act (15 U.S.C. 8– 

9), or the Act of June 19, 1936 (15 U.S.C. 13, 

13a, 13b, 21a). The preceding sentence shall 

not apply to any transaction relating to the 

pooling of railroad cars approved by the Surface Transportation Board or its predecessor 

agency pursuant to section 11322 of title 49, 

United States Code. 

‘‘(2) ANTITRUST ANALYSIS TO CONSIDER IMPACT.—In reviewing any such transaction for 

the purpose of any provision of law described 

in paragraph (1), the Board shall take into 

account, among any other considerations, 

the impact of the transaction on shippers 

and on affected communities.’’. 

(c) CONFORMING AMENDMENTS.— 

(1) The heading for section 10706 of title 49, 

United States Code, is amended to read as 

follows: ‘‘Rate agreements’’. 

(2) The item relating to such section in the 

chapter analysis at the beginning of chapter 

107 of such title is amended to read as follows: 

‘‘10706. Rate agreements.’’. 

SEC. 8. EFFECTIVE DATE. 

(a) IN GENERAL.—Subject to the provisions 

of subsection (b), this Act shall take effect 

on the date of enactment of this Act. 

(b) CONDITIONS.— 

(1) PREVIOUS CONDUCT.—A civil action 

under section 4, 15, or 16 of the Clayton Act 

(15 U.S.C. 15, 25, 26) or complaint under section 5 of the Federal Trade Commission Act 

(15 U.S.C. 45) may not be filed with respect to 

any conduct or activity that occurred prior 

to the date of enactment of this Act that was 

previously exempted from the antitrust laws 

as defined in section 1 of the Clayton Act (15 

U.S.C. 12) by orders of the Interstate Commerce Commission or the Surface Transportation Board issued pursuant to law. 

(2) GRACE PERIOD.—A civil action or complaint described in paragraph (1) may not be 

filed earlier than 180 days after the date of 

enactment of this Act with respect to any 

previously exempted conduct or activity or 

previously exempted agreement that is continued subsequent to the date of enactment 

of this Act. 

Mr. FEINGOLD. Mr. President, I 

would like to thank the senior Senator 

from Wisconsin for his hard work to 

address antitrust issues in the rail industry along with other industries as 

Chairman of the Antitrust, Competition Policy and Consumer Rights Subcommittee of the Judiciary Committee. I have been pleased to support 

his efforts to bring antitrust scrutiny 

to the large freight railroads since he 

first introduced a version of this legislation in 2006. As Senator KOHL well 

knows, this is a vitally important issue 

for rail customers and ultimately consumers both in Wisconsin and across 

the country. 

Over the past several years, I have 

heard more and more comments and 

concerns from freight rail customers at 

my town hall meetings in Wisconsin 

and my meetings in Washington. The 

concerns have come from constituents 

who rely on freight railroads to transport their goods or receive raw materials. The comments I have heard have 

been diverse by industry, ranging from 

forestry, energy, farming, and petrochemical companies to various manufacturers, and by size, from family 

owned enterprises to large corporations. The problems they have described do not seem to be isolated incidents, but instead suggest a systematic 

continuing problem. 

There are several general concerns 

that seem to apply no matter which 

class of railroad is discussed. While 

outright refusals of transport may be 

rare, several of my constituents have 

found it difficult to get timely estimates of costs for carriage for their 

cargo. This seems to especially be a 

problem for short distances or small 

loads, or if the cargo is only on the 

originating railroads’ tracks for a 

short distance. Many have said that 

they feel like second-class citizens, denied the better service and dedicated 

trains that the long-haul receive. 

I have also heard about problems 

with changes to transportation schedules, and problems with rail car delivery and ancillary services such as 

scales. Many rail customers seem to 

feel that as railroads continued to 

merge over the past two decades, service, especially for small customers, has 

declined dramatically. Again, this 

seems to especially affect small railroad customers who are dependant on 

rail transport, but face difficulty in receiving cars to fill, moving filled cars 

in a timely manner or weighing their 

loads. 

Of course cost is also an issue, but it 

is not just the cost of transportation. 

Some rail customers feel that the Surface Transportation Board, STB, complaint process is too costly, slow and 

tilted in favor of the railroads over the 

customers. They contend that these 

hurdles to exposing anticompetitive 

practices have the effect of perpetuating the unfair treatment and excessive rates they experience. 

Senator KOHL’s proposal would remove the current railroad antitrust exemptions so that railroads would be 

covered like other segments of industry. The Department of Justice and the 

Federal Trade Commission would then 

have the authority to review mergers 

and block anti-competitive mergers. 

The legislation would also expand the 

ability of State Attorneys General and 

private parties to halt anti-competitive behavior and seek up to treble 

damages for any such violations. 

I believe this is a very reasonable and 

measured proposal as evidenced by the 

bill being passed out of the Judiciary 

Committee in the previous Congress by 

voice vote. I look forward to supporting Senator KOHL’s efforts to move 

the legislation through committee 

again and push for its passage into law 

during the current Congress. 

While I hope that providing the Department of Justice the authority to 

review possible antitrust violations as 

proposed in the current bill will improve the situation for many shippers, 

it may have to go hand-in-hand with 

reforms at the STB as were contemplated in the previous Congress by 

Senator ROCKEFELLER’s Railroad Competition and Service Improvements Act 

of 2007. 

By Mrs. FEINSTEIN (for herself, 

Mr. ROCKEFELLER, Mr. WYDEN, 

and Mr. WHITEHOUSE): 

S. 147. A bill to require the closure of 

the detention facility at Guantanamo 

Bay, Cuba, to limit the use of certain 

interrogation techniques, to prohibit 

interrogation by contractors, to require notification of the International 


wwoods2 on PRODPC68 with SENATE
S132 CONGRESSIONAL RECORD — SENATE January 6, 2009 

Committee of the Red Cross of detainees, and for other purposes; to the Select Committee on Intelligence. 

Mrs. FEINSTEIN. Today, I am introducing the Lawful Interrogation and 

Detention Act of 2009—legislation intended to reverse the harmful, dangerous, un-American, and illegal detention and interrogation practices of the 

past seven years. 

As I will describe in detail below, the 

four provisions in this bill would: Close 

the Guantanamo Bay detention centers, outlaw CIA’s coercive interrogation program, prevent the use of contractor interrogations, and end secret 

detention at CIA black sites. 

These practices have brought shame 

to our nation, have harmed our ability 

to fight the war on terror, and, I believe, violate U.S. law and international treaty obligations. 

As was made crystal clear on last November 4, we need change and we need 

a new direction. When it comes to the 

war on terrorism, we need to disavow 

‘‘the Dark Side’’ so embraced by the 

Bush administration. Instead, we need 

to follow our approach honed through 

the Cold War: standing by the strength 

of our values and ideals, building 

strong partnerships with allies, and 

mixing soft power with the force of our 

military might. 

This legislation would put us back on 

the right track and I believe it to be 

fully consistent with the policies and 

intentions of President-elect Obama. 

It is time to end the failed experiment at Guantanamo Bay. It is time to 

repudiate torture and secret disappearances. It is time to end the outsourcing 

of coercive interrogations to outside 

mercenaries. It is time to return to the 

norms and values that have driven the 

United States to greatness since the 

days of George Washington, but have 

been tarnished in the past 7 years. 

First, this legislation requires the 

President to close the detention facilities at Guantanamo Bay within 12 

months. 

The need to close Guantanamo is 

clear. Along with the abuses at Abu 

Ghraib, Guantanamo has been decried 

as American hypocrisy and cruelty 

throughout the world. They have given 

aid in recruiting to our enemies, and 

have been named by Navy General 

Counsel Alberto Mora as the leading 

causes of death to U.S. troops in Iraq. 

Numerous reports, most recently one 

completed and approved unanimously 

by the Senate Armed Services Committee, have documented the abusive 

methods used at Guantanamo. 

Beyond the physical, psychological, 

and emotional abuse witnessed at 

Guantanamo, it has been the source of 

great legal embarrassment. The Supreme Court has struck down the Bush 

administration’s legal reasoning four 

separate times: in the Rasul, Hamdi, 

Hamdan, and Boumediene decisions. 

It was explicitly created to be a separate and lesser system of justice, to 

hold people captured on or near the 

battlefield in Afghanistan indefinitely. 

It has produced exactly three convictions, including Australian David 

Hicks who agreed to a plea bargain to 

get off the island, and Osama bin 

Ladin’s driver, Salim Hamdan, who has 

already served almost all of his sentence through time already spent at 

Guantanamo. 

The hard part about closing Guantanamo is not deciding to do it—it is figuring out what to do with the remaining detainees. 

Under the Lawful Interrogation and 

Detention Act, the approximately 250 

individuals now being held there would 

be handled in one of five ways: 

They could be charged with a crime 

and tried in the United States in the 

Federal civilian or military justice systems. These systems have handled terrorists and other dangerous individuals 

before, and are capable of dealing with 

classified evidence and other unusual 

factors. 

Individuals could be transferred to an 

international tribunal to hold hearings, if such a tribunal is created; detainees could be returned to their native countries, or if that is not possible, they could be transferred to a 

third country. 

To date, more than 500 men have 

been sent from Guantanamo to the custody other countries. Recently, Portugal and other nations have suggested 

they would be open to taking some of 

the remaining detainees as a way to 

help close Guantanamo. 

If there are detainees who can’t be 

charged with crimes or transferred to 

the custody of another country, there 

is a fourth option. If the Secretary of 

Defense and the Director of National 

Intelligence agree that an individual 

poses no security threat to the United 

States, the U.S. Government may release him. 

This may work, for example, for the 

Chinese Uighurs remaining at Guantanamo. In fact, a Federal court has already ordered that this group be released into the country, though that 

ruling has been stayed upon appeal. 

Finally, for detainees who cannot be 

addressed in any of the first four options, the Executive Branch could hold 

them under the existing authorities 

provided by the law of armed conflict. 

I believe that these options provide 

sufficient flexibility to handle the 250 

or so people now being held at Guantanamo. If the incoming Obama Administration decides that other alternatives 

are needed, it should come to Congress, 

explain the specifics of the problem, 

and we will work toward a joint legislative solution. 

The other three provisions in this 

legislation end parts of the CIA’s secret 

detention and interrogation program. 

Some of the details of the program 

are already publicly known, like the 

use of waterboarding on three individuals. Other aspects remain secret, such 

as the other authorized interrogation 

techniques and how they were used. 

There have been public allegations of 

multiple deaths of detainees in CIA 

custody. There was one conviction of a 

CIA contractor in the death of a detainee in Afghanistan, but other details remain classified. 

But it is well known that on August 

1, 2002, the Justice Department approved coercive interrogation techniques, including waterboarding, for 

the CIA’s use. This despite the fact 

that the Justice Department has prosecuted the use of waterboarding and 

the State Department has decried it 

overseas. 

The Administration used warped 

logic and faulty reasoning to say 

waterboarding technique was not torture. It is. 

Other interrogation techniques used 

by the CIA have not been acknowledged but are still authorized for use. 

This has to end. 

But we will never turn this sad page 

in our nation’s history until all coercive techniques are banned, and are replaced with a single, clear, uniform 

standard across the United States Government. 

That standard established by this 

legislation is the interrogation protocols set out in the Army Field Manual. 

The 19 specified techniques work for 

the military and operate under the 

same framework as the time-honored 

approach of the Federal Bureau of Investigation. If the CIA would abide by 

its terms, it would work for the CIA as 

well. 

These techniques were at the heart of 

former FBI Special Agent Jack 

Cloonan’s successful interrogation of 

those responsible for the 1993 World 

Trade Center bombing. They were also 

the tools used by Special Agent George 

Piro to get Saddam Hussein to provide 

the evidence that resulted in his death 

sentence. 

We have powerful expert testimony 

that the Army Field Manual techniques work against terrorist suspects. 

The Manual’s use across the government is supported by scores of retired 

generals and admirals, by General 

David Petraeus, and by former secretaries of state and national security 

advisors in both parties. 

Majorities in both houses of Congress 

passed this provision last year as part 

of the Fiscal Year 2008 Intelligence Authorization bill, sending a clear message that we do not support coercive 

interrogations. 

Regrettably, the President’s veto 

stopped it from becoming law. 

The new President agrees that we 

need to end coercive interrogations and 

to comply strictly to the terms of the 

Convention Against Torture and the 

Geneva Conventions. I look forward to 

working with him to end this sad story 

in the Nation’s history. 

The third part of this legislation is a 

ban on contractor interrogators at the 

CIA. As General Hayden has testified, 

the CIA hires and keeps on contract 

people who are not intelligence professionals and whose sole job is to 

‘‘break’’ detainees and get them to 

talk. 


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January 6, 2009 CONGRESSIONAL RECORD — SENATE S133 

I firmly believe that outsourcing interrogations, whether coercive or more 

appropriate ones, to private companies 

is a way to diminish accountability 

and to avoid getting the Agency’s 

hands dirty. I also believe that the use 

of contractors leads to more brutal interrogations than if they were done by 

government employees. 

There are surely areas where paying 

contractors makes practical and financial sense. Interrogations—a form of 

collecting intelligence—is not one of 

them. This has become a major diplomatic issue, a key obstacle in prosecuting people like Abu Zubaydah and 

Khalid Shaykh Mohammed, and a national black eye. It is not the sort of 

thing to be done at arm’s length. 

The fourth and final provision in this 

legislation requires that the CIA and 

other intelligence agencies provide notification to the International Committee of the Red Cross—the ICRC—of 

their detainees. Following notification, 

the CIA will be required to provide 

ICRC officials with access to their detainees in the same way that the military does. 

Access by the ICRC is a hallmark of 

international law and is required by 

the Geneva Conventions. Access to a 

third party, and the ICRC in particular, was seen by the U.S. in 1947 as 

a guarantee that American men and 

women would be protected if they were 

ever captured overseas. 

But ICRC access has been denied at 

CIA black sites, just like it had been in 

some military-run facilities in the war 

on terror. This has, in part, opened the 

door to the abuses in detainee treatment. Independent access prevents 

abuses like we witnessed at Abu Ghraib 

and Guantanamo Bay. It is time that 

the same protection is in place for the 

CIA as has been demanded of the Department of Defense. 

We remain a nation at war, and credible, actionable intelligence remains a 

cornerstone of our war effort. But this 

is a war that will be won by fighting 

smarter, not by sinking to the depths 

of our enemies. 

Our Nation has paid an enormous 

price because of these interrogations. 

They cast shadow and doubt over our 

ideals and our system of justice. 

Our enemies have used our practices 

to recruit more extremists. 

Our key global partnerships, crucial 

to winning the war on terror, have been 

strained. 

It will take time to resume our place 

as the world’s beacon of liberty and 

justice. This bill will put us on that 

path and start the process. I urge its 

passage. 

Mr. President, I ask unanimous consent that the text of the bill be printed 

in the RECORD. 

There being no objection, the text of 

the bill was ordered to be printed in 

the RECORD, as follows: 

S. 147 

Be it enacted by the Senate and House of Representatives of the United States of America in 

Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Lawful Interrogation and Detention Act’’. 

SEC. 2. INTELLIGENCE COMMUNITY DEFINED. 

In this Act, the term ‘‘intelligence community’’ has the meaning given that term in 

section 3(4) of the National Security Act of 

1947 (50 U.S.C. 401a(4)). 

SEC. 3. CLOSURE OF DETENTION FACILITY AT 

GUANTANAMO BAY. 

(a) REQUIREMENT TO CLOSE.—Not later than 

1 year after the date of the enactment of this 

Act, the President shall close the detention 

facility at Guantanamo Bay, Cuba operated 

by the Secretary of Defense and remove all 

detainees from such facility. 

(b) DETAINEES.—Prior to the date that the 

President closes the detention facility at 

Guantanamo Bay, Cuba, as required by subsection (a), each individual detained at such 

facility shall be treated exclusively through 

one of the following: 

(1) The individual shall be charged with a 

violation of United States or international 

law and transferred to a military or Federal 

civilian detention facility in the United 

States for further legal proceedings, provided that such a Federal civilian facility or 

military facility has received the highest security rating available for such a facility. 

(2) The individual shall be transferred to 

an international tribunal operating under 

the authority of the United Nations that has 

jurisdiction to hold a trial of such individual. 

(3) The individual shall be transferred to 

the custody of the government of the individual’s country of citizenship or a different 

country, provided that such transfer is consistent with— 

(A) the Convention Against Torture and 

Other Forms of Cruel, Inhuman or Degrading 

Treatment or Punishment done at New 

York, December 10, 1984; 

(B) all relevant United States law; and 

(C) any other international obligation of 

the United States. 

(4) If the Secretary of Defense and Director 

of National Intelligence determine, jointly, 

that the individual poses no security threat 

to the United States and actions cannot be 

taken under paragraph (1) or (3), the individual shall be released from further detention. 

(5) The individual shall be held in accordance with the law of armed conflict. 

(c) REPORTING REQUIREMENTS.— 

(1) REQUIREMENT FOR REPORT.—Not later 

than 90 days after the date of the enactment 

of this Act, the President shall submit to 

Congress a report that describes the President’s plan to implement this section. 

(2) REQUIREMENT TO UPDATE.—The President shall keep Congress fully and currently 

informed of the steps taken to implement 

this section. 

(d) CONSTRUCTION.— 

(1) IMMIGRATION STATUS.—The transfer of 

an individual under subsection (b) shall not 

be considered an entry into the United 

States for purposes of immigration status. 

(2) NO ADDITIONAL DETENTION AUTHORITY.— 

Nothing in this section may be construed as 

altering or adding to existing authorities for, 

or restrictions on, the detention, treatment, 

or transfer of individuals in United States 

custody. 

SEC. 4. LIMITATION ON INTERROGATION TECHNIQUES. 

No individual in the custody or under the 

effective control of personnel of an element 

of the intelligence community or a contractor or subcontractor of an element of the 

intelligence community, regardless of nationality or physical location of such individual or personnel, shall be subject to any 

treatment or technique of interrogation not 

authorized by the United States Army Field 

Manual on Human Intelligence Collector Operations. 

SEC. 5. PROHIBITION ON INTERROGATIONS BY 

CONTRACTORS. 

The Director of the Central Intelligence 

Agency shall not allow a contractor or subcontractor to the Central Intelligence Agency to carry out an interrogation of an individual. Any interrogation carried out on behalf of the Central Intelligence Agency shall 

be conducted by an employee of such Agency. 

SEC. 6. NOTIFICATION OF THE INTERNATIONAL 

COMMITTEE OF THE RED CROSS. 

(a) REQUIREMENT.—The head of an element 

of the intelligence community or a contractor or subcontractor of such element 

who detains or has custody or effective control of an individual shall notify the International Committee of the Red Cross of the 

detention of the individual and provide access to such individual in a manner consistent with the practices of the Armed 

Forces. 

(b) CONSTRUCTION.—Nothing in this section 

shall be construed— 

(1) to create or otherwise imply the authority to detain; or 

(2) to limit or otherwise affect any other 

rights or obligations which may arise under 

the Geneva Conventions, other international 

agreements, or other laws, or to state all of 

the situations under which notification to 

and access for the International Committee 

of the Red Cross is required or allowed. 

By Mr. KOHL: 

S. 148. A bill to restore the rule that 

agreements between manufacturers 

and retailers, distributors, or wholesalers to set the minimum price below 

which the manufacturer’s product or 

service cannot be sold violates the 

Sherman Act; to the Committee on the 

Judiciary. 

Mr. KOHL. Mr. President, I rise 

today to introduce legislation essential 

to consumers receiving the best prices 

on every product from electronics to 

clothing to groceries. My bill, the Discount Pricing Consumer Protection 

Act, will restore the nearly century old 

rule that it is illegal under antitrust 

law for a manufacturer to set a minimum price below which a retailer cannot sell the manufacturer’s product, a 

practice known as ‘‘resale price maintenance’’ or ‘‘vertical price fixing’’. In 

June 2007, overturning a 96-year-old 

precedent, a narrow 5–4 Supreme Court 

majority in the Leegin case incorrectly 

interpreted the Sherman Act to overturn this basic rule of the marketplace 

which has served consumers well for 

nearly a century. My bill—identical to 

legislation I introduced in 2007 (S. 2261 

in the 110th Congress)—will correct 

this misinterpretation of antitrust law 

and restore the per se ban on vertical 

price fixing. Our bill has been endorsed 

by 34 state attorneys general as well as 

numerous antitrust experts, including 

former FTC Chairman Pitofsky and 

current FTC Commissioner Harbour. 

The reasons for this legislation are 

compelling. Allowing manufacturers to 

set minimum retail prices will threaten the very existence of discounting 

and discount stores, and lead to higher 

prices for consumers. For nearly a century the rule against vertical price fixing permitted discounters to sell goods 


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