Joe Biden

Mr. BIDEN

Mr. BIDEN. Mr. President, this is not the best welfare reform bill that Congress could pass. And, this is not how I would have designed a welfare reform bill. There are, in my view, still some problems with it. But, I cannot ignore why we are here today. Democrats and Republicans sat down together and came up with a bipartisan compromise. That is what the American people sent us here to do. Not to bicker. Not to fight. Yes, to have honest disagreements. But, in the end, to sit down and work out our differences. That is exactly what happened here on welfare reform. The result of us working together is a dramatically better bill than when we started. Not perfect. But, much, much better. And, it is far superior to the bill passed by the House of Representatives earlier this year. The welfare bill before us today stresses that welfare recipients work for their benefits--and many will be required to do so. It limits the amount of time that individuals can spend on welfare-- so that welfare is no longer a way of life. It takes a significant step toward ensuring that innocent children are protected--by providing safe day care while their mothers are working. And it toughens the child support enforcement laws--so that everyone knows that when they bring a child into this world, they have a responsibility for that child. These are the general principles that I have previously outlined as the major components that must be included in any welfare reform bill. And, the requirement that welfare recipients work for their benefits is a proposition that I have advocated since 1987. Nevertheless, as I said a moment ago, this bill is not perfect. The details are not as good as I believe they could--or should--be. I believe we could have had a bill that was both more compassionate to the children--by ensuring that they are taken care of even if their parents are kicked off of welfare--and also more demanding of the parents--through even stricter work provisions. And, I still have concerns about the whole concept of block grants to States. But, as Senator Moynihan stated long ago, we should not let the best be the enemy of the good. This is not the best bill, but it is a better bill. And, I dare say that after the bipartisan agreement, it is a pretty good bill. Mr. President, I cannot turn my back on the significant improvements that have been made in this proposal. And I cannot turn my back on the good faith bipartisan effort at reforming our welfare system. So, I will--despite my continued reservations about some aspects of the legislation--vote for this welfare reform bill. I only hope that this delicate compromise--and not the draconian House bill--is accepted when the bill goes to conference.

Mr. BIDEN

Mr. BIDEN. Mr. President, I thank my colleague, the distinguished chairman of the committee. Mr. President, while we are exchanging compliments, I think this amendment is about the efficacy in the way in which the distinguished Senator from California protects her State. She does an incredible job. I do not know anybody since I have served here who looks out for California's interests better than she does. I think that is what this is all about. We are very close friends, the Senator from California and I. I do not doubt for a single moment what she says about her concern about consumer interests. But I might say, if she prevails, California wins big in the marketplace. I am sure it is purely coincidental. But again, she is tenacious when it comes to California. She is too effective, as far as I am concerned, when it comes to California interests versus the interests of other parts of the country. I think that is what this is a little bit to do with. She is also trying to influence my mind here by sliding something in front of me that has to do probably with something that says my position does not make any difference; I am not crazy about him anyway. So, Mr. President, she will go to any lengths within the legitimate confines of the rules of the Senate to win, like just handing me that note. This debate is not about health and safety. It is not about saving the taxpayers money. Let me state up front this amendment has absolutely no impact on Federal spending. Ensuring compliance will be essentially impossible. Literally one degree of variance would technically require a different label. A package placed, for example, near a refrigeration unit which cools to a temperature of less than 26 degrees would not be considered on par with poultry 10 or 15 feet away from that unit. That is hardly an efficient standard to impose on business. More importantly, the rule ignores the Agricultural Research Service study which demonstrates that consumers cannot detect any quality difference between poultry chilled to 26 degrees and poultry at 2 or 3 degrees lower. Again, there is no difference between these two types of poultry. It is not surprising to me, Mr. President, that virtually all consumers place poultry in the freezer for later use. I know that the sponsor of that amendment is not suggesting that the tens of millions of items that consumers take home and put in freezers all of a sudden make that chicken somehow, that poultry somehow, less palatable than if they did not take it from the grocery store to their homes. Interestingly, the Agricultural Research Service study concluded that under ideal laboratory conditions, poultry temperatures can only be controlled to plus or minus 2 degrees. Let me repeat that: Under ideal conditions, literally perfect conditions, we can only control it within 2 degrees. What the distinguished chairman of the committee has done, he has not said we are not going to have a ruling. He has said look, let us go back and look at this. In fact, I respectfully suggest that many of the advocates of this amendment are more concerned about freezing the delivery of out-of-State poultry, and not actually freezing the product that is being allegedly frozen. This is about freezing out. We sell a lot of chickens in California. I expect that California poultry producers do not like that. We have not figured how to make those birds fly from the Delmarva Peninsula to California, and then jump into a processing plant. We have not figured out how to do that. We have to put them in trucks. We try to do it at 26 degrees. We do not want to be put in the position where my distinguished friend implies that the chickens we are sending, which are not below zero degrees, by the way, which is now frozen, is somehow less palatable. I imagine my time is running out. I apologize for being so disconnected here. But how much time do I have left?

Mr. BIDEN. I ask for 5 additional seconds.

Mr. BIDEN. Will the Senator yield for 1 second?

Mr. BIDEN. This is not about E-coli bacteria or cryptosporidium. The committee language is about simple fairness. It is about fostering competition and about improving the information available to consumers. I hope we reject the amendment of my distinguished friend from California. I yield the floor.

Mr. BIDEN. The experts in the refrigeration industry also point out that there is no way you can get that ideal number within less than 2 degrees. The science of refrigeration is not precise enough that you can get it within 2 degrees. So although they give you an ideal number of 26, they say that is when crystal began to form, they also say, if I am not mistaken, there are not refrigeration units made that can guarantee you can keep it at exactly 27 as opposed to 26 or 25 or 25 as opposed to 23. So I would ask my friend the following question. Assume the issue here were to say 26 degrees plus or minus 3 degrees. Would she be willing to go along with that? Or is she stuck on precisely 27 degrees? Because the Senator from Delaware would be willing to go along with 26 degrees plus or minus 3 degrees, mainly because there is not the science in refrigeration that you can put a product in the back of a truck, send it off to be sold in California or anywhere else and be assured that for the duration of that trip it will not fluctuate several degrees above or below. I might add, the reason why the producers are split in my State, the producers who sell only on the east coast think this is a good idea. The producers that sell in California say: I cannot get my product across guaranteeing it is exactly a certain temperature--I cannot assert, and the technology cannot guarantee me when I put it in the truck, that I can keep it within the rule no matter what I tell you.

Mr. BIDEN. I am sorry.

Mr. BIDEN. Just for 10 seconds.

Mr. BIDEN

Mr. BIDEN. Mr. President, I rise today both to congratulate the Clinton administration for having taken the lead in the search for peace in the former Yugoslavia and, at the same time, to offer words of caution, even warning. Mr. President, Benjamin Franklin once wrote. ``There never was a good war or a bad peace.'' These sentiments are indeed seductive, for no one who has seen the carnage of war could wish for anything more fervently than an end to the bloodletting. Yet, for all his wisdom, Franklin was ultimately wrong. There are good wars. The American Revolution that gave birth to our country was but one example. And there are bad peace settlements. Most historians agree that the Versailles Treaty that ended World War I was fatally flawed and was one of the fundamental causes of World War II. The point obviously is that a good, sensible peace settlement that eliminates the root causes of conflict--or at least ameliorates the worst injustices--can prevent future war. Conversely, a peace settlement unduly influenced by important, but secondary considerations such as perceived world opinion, a passionate yearning for an end to hostilities, or deference to sensibilities of allies or even enemies, all at the expense of hard realities, will only temporarily halt the fighting and postpone the attainment of a lasting peace. Mr. President, it is profoundly unfortunate that for more than 4 years, two administrations abdicated this country's leadership in solving Europe's bloodiest crisis since 1945. The dismal series of broken promises, aborted cease-fires, and ongoing atrocities in the former Yugoslavia attests to the stark fact that unless the United States takes the lead, no foreign and security problem will be solved in Europe. I do not say this to brag; this is a simple fact echoed by many Europeans. So I applaud President Clinton for having broken the Balkan logjam this summer through an energetic combination of military action and diplomacy. Let us recall, however, that in this effort we have paid a grievous price. I take this opportunity to pay tribute to the memory of three immensely talented and patriotic Americans--Joseph Kruzel, Robert Frasure, and Nelson Drew--who last month gave their lives on the Mount Igman Road near Sarajevo in the pursuit of peace. And now, thanks to the efforts of these men, and to the labors of Assistant Secretary of State Richard Holbrooke and his new team, we are on the brink of another Bosnian cease-fire. This one is being praised: For having secured a promised withdrawal of Bosnian Serb heavy weapons around Sarajevo and for opening land and air routes into the city--in return for a halt in the NATO bombing campaign. For thereby having prevented a split in the Atlantic Alliance that reportedly was developing because of the bombing campaign. For having put a stop to a potentially dangerous confrontation with Russia. For allowing a framework for a peace settlement to be fleshed out. And yet, Mr. President, despite the apparent merits of this agreement and of the peace framework, I am worried. I am worried precisely because I fear that too much attention has been given to secondary considerations at the expense of primary ones. I am worried because fundamental principles appear to have been sacrificed for short-term gain. In other words, I am worried that we may be seeing the beginnings of what Benjamin Franklin could not envisage--a bad peace that will inevitably lead to another bad war. More specifically, I am worried that Assistant Secretary Holbrooke has misjudged the character of the Serbian strongman Milosevic and has unnecessarily and unwisely involved, or even considered involving, Russian troops in the most delicate aspect of the proposed agreement. Finally, I fear that the administration has seriously overestimated the willingness of this Congress to support the emerging settlement with massive development aid and the commitment of American troops to the former Yugoslavia as peacekeepers. The joint statement issued on September 8, in Geneva, despite vigorous denials by Assistant Secretary Holbrooke, manifestly abandons the ideal of a multiethnic, multireligious, democratic Bosnia. Instead, the so-called Republika Srpska, of Karadzic and Mladic--two indicted war criminals--is accorded status equal to the legitimate Government of the Republic of Bosnia and Herzegovina, whose territory must be divided between the Pale Serbs and the Moslem-Croat federation. This, Mr. President, is a huge concession. And what is gotten in return? The Bosnian Serbs agree to only 49 percent of the territory of Bosnia and Herzegovina. This acceptance has been trumpeted as a major concession on their part, usually described as sacrificing one-third of the territory they currently occupy. In actuality, however, it has been weeks since the Bosnian Serbs have controlled 70 percent of Bosnia and Herzegovina despite the persistence of the media in erroneously describing it as such. At the time of the Geneva signing they controlled perhaps 62 percent; this week they lost another 6 or 7 percent. In short, Mr. President, the military fortunes of the Bosnian Serbs have been on the wane. The NATO bombing campaign has contributed marginally to their difficulties by disrupting their communications, but the Bosnian Serbs' problems run much deeper. The Serbs' capture of the supposedly safe U.N. areas of Srebrenica and Zepa in July was actually a desperate gamble by General Mladic and his Serbian patron Milosevic to halt their military reverses. The Bosnian Serb Army is outmanned and is plagued by rapidly sinking morale. In the west and north it has lost is allies with the ouster of the Krajina Serbs by the Croatian Army. The Bosnian Serb Army retains a strong base in Eastern Bosnia and, of course, the capability to indulge in its favorite maneuver, lobbing artillery and mortar shells at defenseless civilians, as shown by the latest massacre in the Sarajevo market. So it is highly probable that within the near future the situation on the ground would have dictated a willingness of the Bosnian Serbs to sue for [[Page S 13655]] peace--without our offering the formal recognition which they have craved for so long. Now we face the prospect of a recognized, ethnically cleansed Bosnian Serb entity in a shotgun marriage with the part of Bosnia and Herzegovina that is struggling to maintain the ideals of multiethnic tolerance and compromise. Can one blame the citizens of Sarajevo, Moslems, Croats, Serbs, Jews, and other nationalities, for feeling betrayed? What is the lesson that other potential ethnic cleansers will learn from this carve-up? Assistant Secretary Holbrooke was quoted in the New York Times as worrying about the implementation of the details of this strange and contradictory government structure. And well he should worry. But it is the violence done to fundamental principles of decency and democracy that is the real tragedy, not how the mugging is accomplished. In conceiving both the peace framework and the latest cease-fire, Assistant Secretary Holbrooke has relied on Milosevic to deliver. According to the same New York Times article, Mr. Holbrooke praised the Serbian strongman as a peacemaker. Mr. Holbrooke is, of course, entitled to his opinion, which is no doubt well-informed. However, I also have dealt personally with Mr. Milosevic, and I much prefer the portrayal of him given by our former Ambassador to Yugoslavia, Warren Zimmerman: A habitual liar who condoned and organized unspeakable atrocities. Mr. President, these are not just harmless differences of opinion. Rather, they impact directly on the chances for the cease-fire and the peace settlement succeeding. Because I consider Milosevic to be a liar and a war criminal, I am not at all surprised that he has continued to support the Bosnian Serbs with weapons, training, and vital infrastructural assistance--even during the NATO bombing campaign of the last 2 weeks--all the while assuring us that he has abandoned Karadzic and the Bosnian Serbs in Pale. I would ask, what is the next step? Are we to reward Milosevic's brazen duplicity with further sanctions of relief for Serbia? Assistant Secretary Holbrooke was quoted as saying that we did not sell out the Bosnian Moslems. ``They wanted this agreement,'' he assured the New York Times. ``They knew this was a good deal.'' Well, I hope so, but pardon my skepticism. Other than having to abandon their ideal of a unitary, multiethnic State, the Moslem-led Bosnian Government has had to put up with criticism this past week for having had the nerve to launch an offensive with their Bosnian Croat allies to try to liberate parts of western Bosnia that were ethnically cleansed of Moslems and Croats in 1992. And we certainly do not want to offend the Russians. These are the people who this week accused NATO of genocide for its bombing campaign specifically targeted to avoid civilian areas, even when it meant sparing legitimate military targets. Other than desecrating the memory of millions of people who really did die as a result of genocide, the Russians with their apoplectic rhetoric and big lie techniques make even the most well-disposed American wonder if much has changed since the bad, old days of Soviet rule in the Kremlin. So what do we do? If one is to believe press reports, we contemplate a deal that puts Russian forces around Sarajevo to enforce the withdrawal of the Bosnian Serbs' heavy weapons. This would be a master stroke! We would now put the fate of the long- suffering citizens of the Bosnian capital in the hands of people for whom Bosnian Serb war crimes are allegedly part of a people's struggle for existence. Suppose, just suppose, that the unthinkable happens and the Bosnian Serbs cheat on the deal and the Russians back them up. Now instead of having the option of resuming the bombing of the Bosnian Serbs, we would have to worry about hitting Russian soldiers. Mr. President, this reported part of the deal is so incredible that at first I could only believe that it was some sort of a trial balloon. This morning the White House told my staff that it may have been a deliberate piece of disinformation by the Russians. I hope so, because the idea is a nonstarter. What is the role of Congress in this peace process? In order to cement the bargain the Congress apparently will be asked to pony up half-a-billion dollars as a downpayment on an even larger aid package to follow. And, as the final stroke, we will be asked to send American soldiers to Bosnia and Herzegovina as apartheid cops to enforce the destruction of the unitary, multiethnic State. Well this Senator is frankly revolted at the whole thing. Will we be asked to bankroll the fiefdom of the war criminals Mladic and Karadzic who orchestrated vile ethnic cleansing, mass rapes, and mass murder all across Bosnia? Moreover, now that our pilots have bombed the Bosnian Serbs--as they rightfully have done--does anyone seriously think that Americans would be treated by the Bosnian Serbs as just any old neutral peacekeepers? Mr. President, I realize that Mr. Holbrooke and his team have worked long and hard and in good faith. I also understand that we are describing work in progress. But let these concerns that I have raised today be viewed unambiguously as a shot across the bow of the administration's Bosnian peace flotilla: Do not come to Congress with a bad peace to end a bad war. It has not worked in the past. It cannot work in the future. And Congress, I am confident, will not approve it this time.

Mr. BIDEN

Mr. BIDEN. I will be very brief. This is the wrong place to consider this. As the Senator from Massachusetts pointed out, the committee is going to be taking up this question about the whole scope of Legal Services. I know that my friend from Texas has a problem with the entire entity of Legal Services. He would like to wipe it all out, period, under any circumstances, for any reason. This is not the place to do this. I respectfully urge my colleagues to vote against it, or if it is a tabling motion, vote to table it. Let us fight this out on the whole of the future of Legal Services, not on a welfare bill.

Mr. BIDEN

Mr. BIDEN. Mr. President, the Brown amendment to the welfare bill sounds good on the surface, and I suspect it will pass by a large margin. But, I will vote against it, and I want to explain why. The fact is, this amendment would be prejudicial to my State of Delaware. It would require all States to treat their Federal welfare block grant funds as if they were State revenues, thus requiring the moneys to be appropriated by the State legislature. However, Delaware is one of only six States where the General Assembly has decided that Federal moneys can bypass the State legislature and be directly appropriated to a State agency by the governor. In other words, State legislators in Delaware have decided themselves to forego the right to appropriate Federal funds. I simply do not believe that this bill is the time or the place to change my State's budget law and longstanding appropriations process. If the Delaware General Assembly wants to appropriate the Federal funds that Delaware receives, the General Assembly is fully within its rights to change Delaware's law. But, I cannot support imposing that on my State--especially in a bill that is intended, according to its sponsors, to give States more rights and flexibility. Mr. President, I thank the Chair, and I yield the floor.

Mr. BIDEN

Mr. BIDEN. Mr. President, I am pleased that the Senate is finally debating welfare reform. And, I want to take a few minutes to discuss my views on the matter. It is obvious to almost everyone--including those on welfare--that the current welfare system is broken. Too many welfare recipients spend far too long on welfare and do far too little in exchange for their benefits. Many of those who manage to get off the welfare rolls only end up back on [[Page S 12791]] them after a short period of time. And, for some, generations have made welfare their way of life. This is unacceptable. And, I believe that trying to fix the problem through patchwork solutions is no longer an option--it will only fall short of what needs to be done. Instead, we need to end the current welfare system--scrap it and start over. And, the new program must have as its fundamental premise one basic thing: work. Back in 1987, I proposed a work requirement for all welfare recipients. And, many of those ideas were embodied in the Family Support Act of 1988--the bipartisan legislation crafted by Senator Moynihan. It was a good first step. But, it is evident today that the 1988 law did not go far enough. It is time--it is long past time, really--for us to require welfare recipients to work for their benefits. We must make it unmistakably clear that welfare recipients have an obligation to make every effort to end their dependency. Citizenship is more than just a bundle of benefits. It is also a set of responsibilities. And, the primary responsibility is to provide for yourself and your family by working. Now, when I say ``work,'' let me be clear about what I mean. I mean work. I do not mean participation in bureaucratic programs. I do not mean participation in ``work activities.'' I mean real work. I mean a job. And, if a private sector job cannot be found, welfare recipients should still be required to work, giving back to the communities where they live by doing community service work. In short, the new rule of the game must be this: In exchange for a welfare check, you do something for your benefits. You work. The government will help with child care and some job training, if needed. But, all adults on welfare should be working. The culture of welfare must be replaced with the culture of work. Let me be specific. First, we should require all welfare recipients to sign a contract in which they agree to work in exchange for their benefits. Those who refuse to sign should not get benefits. Then, welfare recipients should have to look for a job immediately. They should have up to 6 months to find a job in the private sector. Six months, period. Those who refuse to look for work should not get benefits. And, those welfare recipients who are not working at the end of 6 months should work in a public sector job or do community service work--or give up their welfare benefits. No more free lunches. No more free rides. And, Mr. President, there should be no more permanent claim on public aid. Working for a welfare check--and everyone should work for their check--must be temporary. Welfare recipients must eventually work for a paycheck. Do not get me wrong. Temporary assistance is the right and humane thing to do. We should not abandon welfare entirely. All Americans must be secure in the knowledge that if something unexpected happens to them--the death of a spouse, the loss of a job, the burning down of their house--that help will be there. But, welfare must no longer be a way of life. We do no favors-- including for the welfare recipients themselves--by keeping people on welfare indefinitely. We must get people off of welfare--and keep them off. Welfare dependency must be replaced with self-sufficiency and personal responsibility. So, we should limit adults to 5 years of welfare, returning the welfare system to its original intent--a system of temporary assistance. Mr. President, a mandatory work requirement and a 5-year time limit sound tough. And, they are. It is time for some tough measures. But, in the process we must be realistic. If welfare is truly to become a two-way street--if our goal is to move welfare recipients into work and not just out onto the streets--then we cannot ignore the issue of child care. For a family living in poverty, the costs of child care can eat up almost 25 percent of their income. Expecting welfare recipients to work--demanding that they work--will not work without child care. The work simply will not pay. Welfare recipients will either go to work and leave their children alone --or not go to work at all. No one--no matter how poor--should be asked to choose between their job and their children. Not only is child care the right thing to do--but, without it, welfare reform will fail. In creating a new welfare system, we must recognize this reality by making sure that child care is available for the children on welfare when their mothers are working. In addition, we must recognize that many of those who leave welfare only to return later do so because they cannot afford child care. We should allow States to provide 2 years of child care assistance for those who have left welfare. And, we should make all low income working families eligible for child care assistance--regardless of whether they had ever been on welfare. Mr. President, let there be no doubt. We must be strict with the adult recipients of welfare. But, at the same time, we must be compassionate toward the children. Two-thirds of those on welfare are children--and we should not blame them or punish them for being born into poverty. More than one in every five children in America today is born poor. That's one poor child born every 40 seconds. And they were given no choice in the matter. Abandoning these children--and they are all of our children--is tantamount to abandoning our future. That is why I believe we must guarantee child care. And, that is why we should, while limiting adults to 5 years of welfare, keep the safety net for children. If a parent is kicked off of welfare, the children--the innocent children-- should continue to receive assistance for food, housing, and clothing. But, that assistance should be provided for the children through a voucher to a third party--not cash to the parents. In other words, adults should not be able to live off of their children's benefits. The point here is that we should provide nothing for adults who do not work, but we should protect the children who are not to blame. Finally, in all of this talk and debate about welfare mothers, let us not forget that there are two adults involved in creating a child. Those who bring children into the world should support their children-- and that includes the deadbeat parents, who are mostly dads. They should be forced to pay child support, and tough child support enforcement must be a part of any welfare reform effort. Getting tough on the deadbeat dads must be as high a priority as getting tough on the welfare mothers. Remember, every dollar not paid in child support is another dollar the Government may have to pay in welfare benefits. Since 1992, when I was appointed to a Senate Democratic task force on child support enforcement, I have argued that fathers who do not work and do not pay child support should be required to take a job--just as welfare mothers should be required to work. Absent parents who have failed to pay child support should be given a simple choice. They could start paying what they owe their children. Or, they could take a community service job in order to earn the money they owe their children. Or, they could go to jail. But, what they should no longer be able to do is to abandon their children. Mr. President, I am absolutely committed to passing a tough welfare reform measure that emphasizes work and personal responsibility--but protects children in the process and maintains a safety net for all Americans who need temporary help. In evaluating the options, I believe that Senator Daschle's proposal--the Work First Act--comes closest to meeting my goals. The Work First plan strikes an appropriate balance. It requires work and imposes a 5-year time limit. It guarantees child care and a temporary safety net for all Americans. It is tough on both welfare mothers and deadbeat dads. I believe that the Daschle proposal is real welfare reform. And, I urge my colleagues to join me in voting for this important, significant, and long overdue overhaul of our welfare system.

Mr. BIDEN

Mr. BIDEN. Mr. President, I rise in support of the Nunn-Warner-Levin- Cohen amendment. I commend my colleagues for their tireless efforts in developing a compromise on this issue which moves us away from some of the most dangerous steps called for in the committee version of the Missile Defense Act of 1995. I still have serious reservations about the compromise language, particularly the effect it may have on Russian ratification of the START II Treaty. I also question whether the greatest threat of a nuclear detonation in the United States comes from ballistic missiles. However, given the likelihood that the Defense authorization bill will pass, I will support the amendment before us as a way to remove some of the more egregiously misguided provisions in the current bill language on missile defense. I would like to discuss briefly some of the areas where I see improvement and to point out candidly those provisions in the amendment which I regard as still being problematic. The amendment clearly makes significant improvements over the current language. It moves us away from the certainty of deploying a national missile defense system by 2003. It narrows the focus of missile defense efforts from all ballistic missile threats to accidental, unauthorized, or limited missile attacks. It guarantees a decisive role for the Congress before deployment can occur. It removes restrictions on the President's ability to negotiate with Russia an appropriate demarcation standard between strategic and theater ballistic missile defenses. And it includes the requirement that missile defenses be affordable and operationally effective. These are no small achievements. They represent significant substantive improvements over the current language. There are still several areas of weakness, however. As I said earlier, I am particularly concerned about the effect this amendment may have on the START process. While the authors of this amendment have done their best to move us away from a collision course with the ABM Treaty, and many of us believe that they have, that may not be a view shared in Moscow by the Russian Duma. I am not sure they will understand the fine distinction between ``develop for deployment'' and ``deploy.'' I am not sure they will understand what we mean when we say that we will proceed in a manner which is consistent with the ABM Treaty, and then say that we are anticipating the need and providing the means to means the treaty. And I think they will be alarmed by references that are made to withdrawing from the treaty. I am concerned about the consequences if the Russians believe that we are not acting in good faith, but are intent on abrogating the ABM Treaty. As I said on this floor a month ago, the most likely consequence of our breaching the ABM Treaty would be a Russian refusal to ratify START II. Why? Because the cheapest way to defeat a missile defense system is to overwhelm it. So, if the Russians feel threatened by our development of a national missile defense system, they are likely not only to scratch the START II Treaty, but to begin a strategic buildup. We will counter with our own buildup and efforts to improve missile defenses, and before you know it we will be in a costly arms race, which the ABM Treaty was designed to prevent. A costly new arms race is not what Americans expected with the end of the cold war. But that is exactly what they will get if we are not careful to avoid damaging the ABM Treaty, which has been the basis for all strategic arms control agreements over the past two decades. I might add that these agreements were made without the United States deploying a strategic missile defense system. A second fundamental concern I have is whether we are correct to focus our resources on defending against nuclear warheads delivered by ballistic missiles. Even the kind of limited program the authors of this amendment are talking about would cost tens of billions of dollars to eventually deploy. The threat of ballistic missile attack from rogue states or terrorists groups is at best a questionable one, and is not likely to arise in the next decade, if ever. The more likely means of delivery of a nuclear explosive device to our shores, as I have said on this floor repeatedly, would be an innocuous ship making a regular port call in the United States. A determined group could assemble a device in the basement of a landmark such as the World Trade Tower with catastrophic results. Terrorist groups or outlaw states would not need a ballistic missile to reach our territory. And that is where we should be focusing our resources: On tracking these terrorist groups and rogue states and securing the many tons of fissile material now spread throughout the vast territory of Russia. In conclusion, let me again thank Senators Nunn, Levin, Cohen, and Warner for their efforts on this vital issue. They have greatly improved upon a piece of legislation, which unamended would have seriously threatened our national security. [[Page S 12659]] Unfortunately, despite these improvements, I believe that the potential is still there to undermine the ABM Treaty and our security in the process. However, the choice between the two alternatives--the missile defense language in the bill versus the amendment before us--is really not a choice. I will support the amendment to avoid the more damaging consequences of the current bill language. Mr. GLENN. Mr. President, the Senate has before it today two legislative proposals that address U.S. policy toward the Anti- Ballistic Missile (ABM) Treaty and missile defense generally. There is language in S. 1026 that would require the United States to deploy a multiple-site national missile defense system, an action that would violate the ABM Treaty. Its alternative, the substitute offered by my colleagues, Messrs. Nunn, Levin, Warner, and Cohen, would only require the United States to ``develop'' such a defense ``for deployment.'' Though I am not happy with either proposal, I will vote for the substitute only because it does less damage to the ABM Treaty than its alternative. Nobody should interpret this vote, however, as a ringing endorsement of the policies set forth in the substitute, for reasons which I would like to discuss in some detail in this statement today. In my opinion, neither the original language in S. 1026 on missile defense, which was narrowly approved by a straight party vote in the Armed Services Committee, nor the substitute addresses my deepest concerns about the future of the ABM Treaty. I recognize the hard work that my colleagues, Messrs. Nunn, Levin, Warner, and Cohen, have devoted to forging a bipartisan consensus on this controversial issue. Yet several provisions remain in both proposals that jeopardize the future of the ABM Treaty and, as a result, the stability of the strategic relationship between the United States and Russia. Before identifying section by section my specific concerns with these proposals, I would like to address some broader issues. Context of Missile Defense Issues For almost a quarter century, the ABM Treaty has helped to preserve the peace by guaranteeing the United States the means of retaliating in the event of a nuclear attack by Russia. By prohibiting Russia from deploying a national multiple-site strategic missile defense system, the treaty works to ensure the reliability of the United States nuclear deterrent; in performing this function, the treaty also saves the taxpayer the burden of supporting a robust national missile defense system. The majority in the Armed Services Committee knows all about the importance of protecting U.S. deterrence capabilities--during committee deliberations over the stockpile stewardship program, I heard a lot about the specter of ``structural nuclear disarmament'' and the vital importance of maintaining a vital nuclear second-strike capability. I therefore cannot explain why there is language in this bill referring to deterrence as a mere relic of the cold war. With thousands of Russian and United States nuclear weapons continuing to threaten each other, there is no law that Congress can pass that would repeal nuclear deterrence--it remains an unpleasant reality, a basic fact of international life. Mutual assured destruction is not so much a policy or a doctrine as a fundamental reality about the current strategic relationship between the United States and Russia. It is good for our security that the ABM Treaty prohibits Russia from developing or deploying systems to kill United States strategic missiles. Similarly, the lack of a strategic missile defense system in the United States enhances Russia's confidence in its own deterrent. As a result, the treaty has provided a solid foundation upon which the superpowers can reduce their nuclear arsenals without jeopardizing strategic stability. This process is now well underway with the START I and II treaties. It is a process that, at long last, appears to be actually working: the stockpiles are indeed being reduced. The ABM Treaty, however, is now under assault by critics who believe it is obsolete. They believe that recent technological developments offer the prospect of a safe harbor against theater and limited strategic missile strikes. This is, of course, not the first time that a technological innovation has led to great strategic instability, great expenditures, and great dangers to our national security. This is not the first time that unbounded faith in technological fixes has captured the imagination of defense specialists and editorial writers. The development of the multiple independently targetable reentry vehicle (MIRV), for example, was once heralded as a giant technological innovation that would bolster U.S. national security. Yet the START II treaty will eliminate all ground-based MIRV's precisely because of the risks they pose to strategic stability. MIRV's were introduced, lest we forget, amid fears that Russia was deploying a missile defense system. The American and Russian experience with MIRV's should remind us all that technology must remain the tool of policy to serve the national interest--it must not drive that policy. Yet technology is very much what is driving the current debate over the future of the ABM Treaty. The whole debate boils down to a few fairly straightforward questions: One, are the gains to U.S. and international security from developing and deploying a national strategic missile defense system worth the risks? Two, are these gains worth the costs of acquisition, deployment, and maintenance of such a system? Three, will these investments address genuine threats? Four, are there more effective and affordable alternative ways to preserve national and international security than by developing missile defenses? Five, does the legislation before us today enhance or erode the national security? And six, is America in the post-cold war environment really best served by a go-it-alone missile defense strategy, or is our security more dependent upon cooperation with our allies and maintenance of strong military and intelligence capabilities against potential adversaries? Congress simply has not fully examined the costs we would pay from abandoning the ABM Treaty. When it comes to domestic regulatory decisions, the new congressional majority claims to favor rigorous cost/benefit analysis. Yet its members appear reluctant to apply such analysis to our national defense policy, particularly with respect to existing proposals to hinge America's security on star wars or its many sequels. Unfortunately, even the substitute missile defense amendment brings new risks and costs into the debate on missile defense. The Fable in the First-Degree Amendment Let us imagine for a moment that a fictitious new party to the treaty on the non-proliferation of nuclear weapons [NPT], is suddenly swept up in a new wave of collective national paranoia. Rumors of new foreign threats are rampant, though always hard to pin down. Nevertheless, the country decides to embark on a policy to acquire an affordable and operationally effective nuclear weapon to serve as a deterrent against limited, accidental, or unauthorized foreign nuclear attacks. Since the legislators of country x know that the NPT contains a provision that permits withdrawal from the treaty on only 90 days' notice, these members of parliament promptly decide--after very little debate--to enact a new law authorizing the development for deployment of nuclear weapons, so long as this is accomplished within, or consistent with that treaty. The law then goes on to define specific technical characteristics of such weapons that can be developed without breaching the treaty. And the only weapons that are taboo under this new law are those that exceed these standards and that are actually detonated. On the 91st day of the international outcry over this incredible law, country x unveils a robust nuclear arsenal without ever having breached the treaty, leaving the whole world to ask, what went wrong? Now forget country x. Let us take some concrete examples. What if the Iranian parliament decides that this approach makes great sense as an approach to NPT implementation? What if the Russian Duma someday decides that this is also the way to go in insert its own most-favorite notions of defense policy into its laws implementing the START II Treaty? What if Syria becomes a party to the Biological Weapons Convention and passes a law [[Page S 12660]] permitting the development for deployment of certain specific types of biological weapons for what it asserts are purely defensive purposes? What if Germany decides that its commitments under the Missile Technology Control Regime only extend to missile systems that are actually demonstrated or flight-tested above the standard 500 kg payload/300 km range guidelines? What if each of the 159 countries that have signed the Chemical Weapons Convention decides to enact new laws defining the specific technical characteristics of chemical weapons that are controlled under that treaty? And specifically with respect to the ABM Treaty, if it had been acceptable in the last decade to develop for deployment weapons systems and components that are banned under the ABM Treaty, would Russias notorious Kraysnoyarsk radar station have violated that treaty? Mr. President, I submit that this is not the way to go about interpreting treaties. This is not the way to stop proliferation. This is not the way to pursue arms control. This is not the way to enhance the national security interests of the United States. And this surely does not serve the interests of international peace and security. Yet this, I regret to say, is the essence of the approaches now before the Senate with respect to the development and deployment of missile defense systems that are not allowed by the ABM Treaty. Though I disagree with this aspect of both of these approaches, the substitute has the advantage of at least not requiring the immediate deployment of prohibited missile defense systems. It continues to suffer, however, from several important weaknesses. It contains vague and dangerously ambiguous language. For example, the term limited, as used in the term limited, accidental, or unauthorized, is undefined and hence expands significantly the scope of the national missile defense [NMD] scheme. It requires the development, with the express intention of deployment, of an NMD system that is not allowed under article I of the ABM Treaty. It requires the development of TMD systems, such as THAAD and Navy Upper Tier that have capabilities to counter strategic ballistic missiles, a mandate that conflicts directly with article VI of the ABM Treaty. It accepts the committee's one-sided and largely unsubstantiated assertions, or findings, about the grave imminent missile threat facing the United States, while ignoring several ways in which this threat has been attenuated in recent years. It fails to offer a single finding about the positive and constructive ways that the ABM Treaty has served key U.S. security interests. It repeals laws that require U.S. compliance with the ABM Treaty. And it places the U.S. Congress on formal record endorsing a unilateral U.S. definition of an ABM Treaty-permissible missile defense system. Yet despite all these serious weaknesses, the substitute is still marginally better for arms control and nonproliferation than the missile defense measure contained in S. 1026. In sum, though the substitute has clearly not de-fanged the missile defense proposal found in the bill, it has at least filed down some of its incisors. From Fable to Nightmare I would now like to turn from the fable to the nightmare: namely, the missile defense language in S. 1026. On August 4, 1995, Anthony Lake wrote to the majority leader that ``* * * unless the unacceptable missile defense provisions are deleted or revised and other changes are made to the bill bringing it more in line with administration policy, the President's advisors will recommend that he veto the bill.'' The letter addressed specific concerns over the ABM Treaty and NMD language. If enacted, the letter stated, these terms-- . . . would effectively abrogate the ABM Treaty by mandating development for deployment by 2003 of a non- compliant, multi-site NMD and unilaterally imposing a solution to the on-going negotiations with Russia on establishing a demarcation under the Treaty between an ABM and a TMD system. The effect of such actions would in all likelihood be to prompt Russia to terminate implementation of the START I Treaty and shelve ratification of START II, thereby leaving thousands of warheads in place that otherwise would be removed from deployment under these two treaties. [Emphasis added.] This language echoes similar views expressed by Defense Secretary Perry and the Chairman of the Joint Chiefs of Staff, General Shalikashvili. At issue here is not a duel between liberals or conservatives or Democrats and Republicans--at issue is the gain and loss to the national security of the United States from abandoning the ABM Treaty. By my reading, there is no contest. I do not believe that it in any way serves our national interest to set ourselves on a course to abrogate that treaty. It surely does not serve America's interests to encourage Russia--as this bill inevitably would--to develop its own multiple-site strategic ABM system, an action which would only weaken our own nuclear deterrent. The costs to cash- strapped American taxpayers of repairing that damage could potentially mount into the tens or hundreds of billions of dollars. I cannot understand how the supporters of the bill's missile defense provisions can simultaneously claim to worry about what they call, ``structural nuclear disarmament'' while they are also pushing for a course of action--abrogating the ABM Treaty--that would truly undercut the effectiveness of the U.S. nuclear deterrent. It in no way serves our interests to encourage Russia to reconsider its commitments under the START I and START II treaties. And by derailing the strategic arms control process, the bill's missile defense language also aggravates the global threat of nuclear weapons proliferation. Coming on the heels of the successful permanent extension of the NPT, the bill's language on both missile defense and nuclear testing would weaken, rather than strengthen, the global nuclear regime based on the NPT, an outcome that would prove catastrophic to our global security interests. Few people realize that if there is no ABM Treaty, Russia will even be able to export its strategic missile defense capabilities, something that Article IX of the ABM Treaty now expressly prohibits. I doubt many of my colleagues are aware that the ABM Treaty is not just an arms control convention--it is also explicitly a nonproliferation treaty. Article 9 reads as follows: To assure the viability and effectiveness of this Treaty, each Party undertakes not to transfer to other States, and not to deploy outside its national territory, ABM systems or their components limited by this Treaty. Note that this language does not prohibit the United States from assisting its friends and allies to develop and deploy TMD systems. The treaty does, however, prevent both Russia and the United States from sharing strategic missile defense capabilities with other countries. And in the case of Russia, those capabilities include interceptors with nuclear warheads. It seems appropriate, therefore, that before we set ourselves on a course of abrogating the ABM Treaty, we should carefully examine the full implications for U.S. defense interests around the world of eliminating the only international constraint on the proliferation of these strategic missile defense systems. How will such proliferation affect the ability of the United States to respond to regional crises that might arise around the world in the years ahead? How will it affect the United States ability to project power? I am not satisfied that anybody has seriously weighed such considerations. The treaty, furthermore, does not only ban the horizontal or geographic spread of such missile technology. It also helps to constrain both the size and sophistication of the United States and Russian nuclear weapon stockpiles--in short, the ABM Treaty also constrains the vertical proliferation of nuclear weapons. By banning the deployment of national strategic missile defense systems, the treaty works to protect the effectiveness and reliability of the US nuclear arsenal and thereby works to stabilize nuclear deterrence. Abandonment of the treaty will trigger a new offensive nuclear arms race, as leaders both here and in Russia will have to find new ways to defeat these new missile defense systems. Yet I have seen little indication in the process of reviewing this proposal [[Page S 12661]] that anybody here has considered how these particular side effects of the bill's ABM proposals--in particular the proliferation-related aspects of these proposals--would affect the full range of U.S. national security interests around the world. Even our allies, Britain and France, would be affected--the collapse of the ABM Treaty would mark an end to any hopes of encouraging these countries to engage in deep cuts of their nuclear stockpiles. And I cannot believe for a minute that China would sit by as its neighbors ringed its borders with strategic missile defense capabilities. Among China's many options to respond to such a development would be a dramatic expansion of its offensive nuclear capability. The next crisis, predictably, would be the collapse of the NPT itself as country after country submits its 90-day withdrawal notice--following the course taken by Country X. Some Specific Concerns I would now like to outline my specific concerns with these proposals--concerns which I will address section by section. Sec. 232 (Findings): Both the bill and the compromise language on missile defense lack any congressional findings acknowledging the positive and constructive ways that the ABM Treaty has advanced America's arms control and nonproliferation interests. In failing to address these benefits of the treaty, and in failing to recognize that in some ways the missile threat to the United States has actually lessened in recent years, the proposed findings seriously mischaracterizes--and in my view overstates--the missile proliferation threat facing the United States. Few of us here will disagree that the spread of weapons of mass destruction, especially nuclear weapons, jeopardizes our security. Many, however, would disagree that developing systems that would be in violation of the ABM Treaty is the right way to go about addressing that threat, especially when there are so many ways of delivering such weapons other than by missile. Sec. 233 Policy: With respect to the Policy section, the substitute is ambiguous on the fundamental issue of the U.S. intent with respect to compliance with the its obligations under ABM Treaty. To the limited extent that it addresses this issue, it focuses only on compliance with a particular version of the ABM Treaty, namely, the treaty's obligations as they are unilaterally interpreted in this bill. The language also sets in gear significant initiatives without any prior consensus among the parties to the treaty. The terminology about ``multiple-site'' deployments will apply to systems that have capabilities against strategic missiles. And given that all missile attacks are limited by the laws of nature, it is by no means clear what these current proposals mean by the term ``limited'' missile attack. Indeed, this term ``limited, accidental, or unauthorized'' combines the features of a wild card and an elastic clause: though precedents have already been set using this undefined term, I would not want Russia to enact legislation unilaterally defining its own interpretation of these terms. Changes such as these to an important international agreement should be made on the basis of mutual understandings between the parties and in accordance with the conventional amendment and ratification process, rather than dictated by statute. References in these proposals to the right to withdraw from the ABM Treaty are either redundant--since this right is quite explicit in the treaty--or outright extortionary, since they seek to prescribe a specific diplomatic outcome which only negotiations can appropriately accomplish. The compromise proposal also contains language that questions the continued importance of nuclear deterrence as a basis of U.S. national security, despite considerable evidence that deterrence remains as a foundation of our national security and despite the lack of any viable alternative. Neither the original bill nor the compromise language addresses the issue of nuclear-armed BMD systems--it would surely seem to me that before we consider taking actions that will lead to multiple violations of the ABM Treaty, we should examine fully some of the consequences of that decision, especially with respect to the proliferation of nuclear weapons. Many people forget that the ABM Treaty also prohibits the global spread of strategic ballistic missile defense systems. Considering that Russia has just such nuclear-capable systems, it hardly seems wise to set ourselves on a course to abandon a treaty that prevents the spread of just such technologies. As part of their efforts to reduce their reliance on nuclear weapons as a basis of their security, both the United States and Russia might well consider pursuing an agreement to outlaw nuclear-armed missile defense systems. Sec. 234. TMD Architecture: The initial operational capability dates in this section and in section 235 (NMD Architecture) should be consistent with understandings reached between the parties to the ABM Treaty. THAAD and Navy Upper Tier should only be included in the Core Program if the parties to the ABM Treaty agree that such systems and their components are permissible under the treaty; the same should apply to space-based sensors including the Space and Missile Tracking System (SMTS), and to follow-on systems. Sec. 235. NMD Architecture: As I have already noted, the term ``limited''--used both in the bill and the compromise to refer to future missile defense capabilities--is undefined in both proposals. Clearly, this term should not be defined only by one party to the treaty--if this term has a meaning which Russia does not share, it will only open the door to Russia legislating its own definitions of key terms not only in the ABM Treaty but also the START II treaty, the Chemical Weapons Convention, and possibly other important arms control, disarmament, and nonproliferation agreements. The compromise requires the development for deployment of an NMD system capable of being deployed at multiple sites, a policy that if implemented would violate the current text of the ABM Treaty. Development and deployment of NMD systems are matters that must be arranged pursuant both to negotiations and to existing treaty amendment procedures, including ratification. Similarly, space-based sensors should be developed only as agreed by the parties. I believe the President should at the very least be required to prepare a formal assessment of the arms control and nonproliferation implications of any systems being developed or deployed for purposes of NMD. References in this section to sea-based and space-based systems and expanded numbers of ground-based interceptors only invite the international community to doubt our willingness to live up to our ABM Treaty obligations not to develop or to deploy such systems. Sec. 236. Cruise Missile Defense Initiative: Both the compromise and the bill contain language addressing the dangers from the continued global spread of weapons of mass destruction. Yet both also fail to clarify that some of the most likely delivery systems for most weapons of mass destruction do not involve ballistic or cruise missiles. It seems to me that before we launch into framing defense initiatives around specific weapons systems, we should understand better the nature of the specific and anticipated threats they pose relative to other weapons systems. I can think of at least two other delivery systems that may pose a threat to US defense interests that is equal to or greater than the proliferation threat now posed from ballistic missiles--first, the capabilities of advanced strike aircraft (Pakistans F-16s come to mind here as just one example) to deliver weapons of mass destruction, and second, the threat coming from terrorists using such weapons. Spending tens and hundreds of billions on missile defense will not help us to address either of these clear and present dangers. Sec. 237. ABM Treaty: References in the compromise proposal to provisions of the treaty relating to the amendment and withdrawal process are unnecessary since such provisions are already law of the land. Including them only signals an intention to implement such rights. Neither proposal acknowledges some of the positive contributions the ABM Treaty has made to the national security of the United States. It should not be for United States [[Page S 12662]] alone, nor Russia alone, to define unilaterally key terms of this treaty--the process of interpretation must involve Russia and the normal process of making, ratifying, and amending treaties. Also the comprehensive review called for in the compromise proposal fails to include specifically an assessment of the full implications for U.S. diplomatic and security interests of a collapse of the ABM Treaty. Sec. 238. Prohibition on Funds: The velocity/range demarcation standard is unilateral--it has not yet been agreed by the parties. The implementation of the demonstrated capabilities standard should also be governed by mutual agreement of the parties. The specific prohibition on funding should only apply to systems that are not in compliance with the ABM Treaty as agreed by the parties. Since section 232 of the National Defense Authorization Act of 1995 remains law of the land, there is no need to repeat it in this bill with respect to the President's treaty-making powers. Sec. 241. Repeal of Other Laws: The current first-degree amendment follows the existing language in the bill by repealing outright 10 laws pertaining to missile defense. Some of those provisions are obsolete. But other parts of those laws--such as those dealing with the U.S. compliance with the ABM Treaty, the requirement for realistic tests, the importance of financial burden-sharing with our friends, the requirements for consultations with our allies, previous congressional findings about the positive value of the ABM treaty, and requirements for consultations between the parties to the treaty on activities relating to implementation. Conclusion Thus to vote for the missile defense proposal in the bill amounts to a vote against the ABM Treaty, and a vote against that treaty is to vote for the proliferation not just of defensive missile systems, but for the proliferation of the strategic nuclear missiles that will be necessary to defeat those defenses. In a very real sense, the death of the ABM Treaty could well signal the deaths of both strategic nuclear arms control and nuclear nonproliferation. I cannot support any such proposal. I therefore urge my colleagues to oppose the committee language on missile defense. Let us by all means get on with the business of reducing external weapons threats to our country's security, a business the ABM Treaty makes legitimate with respect to TMD. But let us not retreat into a technological Fortress America as we would with the missile defense provisions in S. 1026. Today, we have before us a choice between one missile defense proposal that is a nightmare and another that is a fable. Given additional time, Congress may well have been able to construct a third option, one which built upon and acknowledged the important contributions that the ABM Treaty continues to make to our national security. But the schedule is such that we do not have such time. Accordingly, I will vote for the least bad of the two proposals before us. Mr. President, I ask unanimous consent to insert into the Record at this point an analysis prepared by my staff of the missile defense provisions now before the Senate, and a table comparing key provisions of the ABM Treaty with the proposals found in the substitute amendment.

Mr. BIDEN. Mr. President, I rise in opposition to the National Defense Authorization Act for fiscal year 1996. In the course of debate on this legislation many improvements have been made to what was a dangerous piece of legislation. To mention two of these positive changes: The provisions on the Energy Department relating to our nuclear weapons activities have been greatly improved and the National Missile Defense Act of 1995 has been significantly altered. Unfortunately, these changes have not gone far enough to correct what I believe is still a flawed piece of legislation. I will oppose this legislation primarily for two reasons. First, the Missile Defense Act of 1995, though much improved over the original committee version, risks undermining the START treaties. Second, the bill provides for an increase of $7.1 billion in spending on programs that the Pentagon does want nor need. At this juncture, I want to make clear that I support a robust national defense. I do not think, though, that spending money on weapons systems that the military itself does not want and pursuing a national missile defense which could lead to a new arms race, as this bill does, is a good way to promote our national security. Senators Nunn, Levin, Cohen, and Warner worked hard to develop a compromise which altered some of the more egregious provisions of the committee-reported version of the Missile Defense Act of 1995. I commend them for their efforts, and I supported their amendment as a way to improve the original bill language. [[Page S 12670]] The amendment does move us away from the original bill's commitment to deploy a national missile defense system by 2003. Furthermore, the scope of the Strategic Missile Defense Program has been strictly limited to defending against unauthorized, accidental, and limited launches as opposed to a more ambitious defense against all types of ballistic missiles. The Congress is now guaranteed a decisive role in the decision to deploy any missile defenses. Finally, provisions which would have tied the President's hands in negotiating ABM Treaty amendments have been removed. Despite these significant changes, many problems remain with the Missile Defense Act of 1995. In particular, there is a real threat that the Russian Duma will not understand the legislative finessing we have engaged in to avoid a head-on collision with the ABM Treaty. The distinction between developing for deployment a national missile defense system versus deploying such a system are subtle at best. They may also be concerned about policy statements referring to the possibility of withdrawal from the AMB Treaty should negotiations not succeed. The danger is that these measures on our part will be viewed as violations of the ABM Treaty by the Russians. If the Russians believe that we are developing an effective national missile defense system in violation of the ABM Treaty, then they are likely to lose confidence in their offensive strategic arsenal, which has been shrinking thanks to arms control agreements like START I. To overcome that lack of confidence, they will seek to develop the means to counter our missile defense system. The cheapest way to do so is to overwhelm missile defenses. In order to retain the ability to do that they will stop implementing START I and refuse to ratify START II. The progress in arms control which accompanied the signing of the ABM Treaty over two decades ago will have been thrown by the wayside, and ironically we will have the kind of arms race in the post-cold-war world which we were able to avoid in the heyday of the cold war. Instead of focusing on a threat from ballistic missiles reaching our shores--a threat which we may never face--we should be concentrating our efforts on those areas where a realistic threat does exist. That threat primarily comes in the form of a rogue state or terrorist group gaining access to widely scattered fissile material in the former Soviet Union, fashioning a crude nuclear explosive device, and smuggling it into the United States by conventional means such as a boat. Our focus should be on securing the many tons of nuclear material in the former Soviet Union, and on tracking dangerous terrorist groups who may be potential customers for that material, not on defending against the remote possibility of a ballistic missile attack from outlaw states or groups. The second primary concern I have with this legislation is that it calls for wasteful spending. I want to repeat that I stand for a strong national defense. Unfortunately, the additional $7.1 billion in spending above the administration's request called for in this legislation does nothing to improve our national security. Not one penny of the increase is going into the operations and maintenance account, also known as the readiness account. The reason for that is that there is not a readiness problem under the Clinton defense budgets as some would like us to believe. Some of the $7.1 billion increase in spending, such as that for national missile defense, could lead to expenditures of tens of billions of dollars in future years if plans are fully carried out. This is an indirect way of forcing enormous increases in future defense budgets which are not included in current budget plans. At a time when many valuable programs are being subjected to unprecedented cuts, I find it difficult to support large increases in programs in the Defense bill which were not requested by the military and will do nothing to enhance our national security. For these reasons, Mr. President, I must oppose the Defense Authorization Act for fiscal year 1996.

Mr. BIDEN

Mr. BIDEN. Mr President, the drug office provides the accountability and single point of contact necessary for Congress to exercise oversight of Federal drug strategy. The drug strategy and the drug budget provides the only single document that details our national drug strategy. When he was Director, William Bennett testified before the Senate Judiciary Committee in February 1990: [A] year ago [before drug office was law], if you had asked for a comprehensive picture of national drug policy, you had to go to over 30 different agencies. Not anymore. William Bennett, testimony, February 2, 1990. Also, this is not a debate about the drug strategy. This is a debate about whether we have a drug strategy. I disagreed with elements of the strategy proposed by Director Bennett, Director Martinez, and Acting Director Walters. But, if we did not have a drug strategy, we could never have had a drug policy debate. To illustrate this point, I would point out that there are 85 departments, agencies, offices, and bureaus that make up the Federal antidrug effort. The drug director is the only person who is dedicated full time to bringing any order to this effort. This year the Federal Government will spend $13.3 billion fighting against drugs. The President proposes that we spend $14.6 billion next year. I do not want to debate the specifics of the drug strategy. My point is that with so much money being spent, we ought to be able to debate how we are going to spend these dollars. And, we can only debate if there is a policy for us to discuss. And there is only a drug policy if we have a drug strategy. This amendment serves one central purpose: To make sure that we have a full-time general in command of our war on drugs. Although drugs have dropped off of the media's radar screen for the moment, we cannot be lulled into a sense of complacency on this issue. Drug-related violence still shatters the night in cities, towns, and rural hamlets all across the country; hard-core addicts roam the streets in as great numbers as ever; and the recent surveys by the National Institute on Drug Abuse tell us that teenagers may be forgetting the lessons we have taught them over the past few years: Use of marijuana, LSD, and inhalants is on the rise among our young people. This is no time to eliminate the drug office--we must redouble our efforts. We must bolster, not obstruct our Nation's ability to develop and mount an all-out attack on the drug scourge. I am gratified that the Senate has worked in a bipartisan fashion to continue--and bolster--the Office of National Drug Control Policy. to preserve the office of national drug control policy

Mr. BIDEN

Mr. BIDEN. I thank the Chair. I thank the Senator from Michigan. I wish to thank the Senator from Nebraska, who, I might add, as a member of this committee, has fought against what seems to be the most perverse development in our military budget and planning in the last 4 years. The idea that now of all times in our history we need to overturn what was a centerpiece of two successive Republican Presidents seems to me to be a little bit bizarre. But, Mr. President, to state the obvious, I rise in support of the amendment of the senior Senator from Michigan, Senator Levin. Mr. President, the so-called National Missile Defense Act of 1995 is a hodgepodge of contradictory provisions that, if implemented, would jeopardize our national security beyond anything that I have witnessed since I have been in the U.S. Senate. The bill before us represents a frontal assault on the ABM Treaty. I heard yesterday some sort of, how can I phrase it, interesting questions posed by some of our Republican friends--asking Senators, ``Are you for missile defense? Are you for mutual assured destruction?'' I would point out that the reason why we are where we are and we are dismantling missiles and we are diminishing the prospect of nuclear confrontation by super or former superpowers is because the policy of mutual assured destruction has worked pretty darn well. But I will get back to that in a minute. This bill represents a flat, frontal assault on the Anti-Ballistic Missile Treaty. First, it would force us to violate the ABM Treaty by mandating dangerous unilateral infractions of that treaty. Then, it would jettison the [[Page S 11275]] entire treaty by requiring the development of a national missile defense system by the year 2003. In a final strange and, I think, unexplainable twist, it goes on to call for a select committee to review a treaty that is effectively being declared null and void by the very same bill. Now, either the folks who wrote this into the bill do not understand what our nuclear strategy has been thus far--and I know they do--or this is incredibly poor draftsmanship or there is a perverse game being played here. The first two parts of what is before us--not the amendment, but absent the amendment--by definition, destroy the ABM Treaty. Then the third part is to set up a select committee to review the treaty that we are legislatively destroying. Now, I assume that may be because there is not enough work or enough committee assignments for Senators. They want to have other committees because maybe they get additional staff. I do not know. But, I mean, why in the devil do you need the third part if you are doing away with the first two parts? But at any rate, taken together, these provisions would simply eviscerate the ABM Treaty, which has provided the basis for our strategic arms reductions over the past 20 years. The most likely immediate consequence of gutting the ABM Treaty would be that the Russian Duma, their Congress, would refuse to approve the START II Treaty, which is, quite frankly, a jewel in the crown of President Bush's, and prior to that President Reagan's, foreign policy initiatives. With START II unratified, the hopes for further strategic arms reduction would be dashed--which, I might add, I think is the real purpose of this initiative by the majority. They did not like START II to begin with. They did not like START I. They do not like the idea of our having to talk about further reductions in the amount of nuclear warheads that exist in the world. But make no mistake about it that if we pass this, why if you were sitting in the Russian Duma, why if you were a Russian or anyone else for that matter, would you conclude that it is a good idea to follow through with the destruction of your existing nuclear arsenal? Why would you do that? I think I understand. I think that is the underlying purpose of the legislation before us. This singular achievement of the Bush administration, the START II Treaty, is the basis upon which we moved to even further reductions-- and, along with it, the significant enhancement of the security of Americans that we all hoped would be the byproduct of winning the cold war. Now, I do not know what you all are going to tell your kids. I do not know what you are going to tell your family and friends after you tell them how we won the cold war, but there is a greater need for nuclear weapons. Now they say, well, this is not about nuclear weapons; this is about the ability to prevent our being attacked by nuclear weapons. I will not go into all the science which Senator Nunn and others have talked about here, but the one thing for certain about how you deal with an ABM system is you overwhelm it. You build more offensive systems. It is a lot easier and a lot cheaper to build offensive systems than it is to build defensive systems. As an old bumper sticker from my generation used to say, ``One nuclear bomb that gets through could ruin your day.'' One hydrogen bomb dropping on Manhattan can ruin your day. So all you have to do, without even having the technology, is overwhelm the system. And it is cheaper to do that. Now, I know what my friends are thinking. They say, ``Boy, we have got the Russians in a great spot. They are broke. Let's take advantage here. They are not going to be able to do this.'' Well, at a minimum, folks, I do not know why they are going to go ahead and destroy what they have, if, in fact, we are going to adopt this policy. The most likely immediate consequence of cutting the ABM Treaty, as I said, will be the elimination of the START regime. Mr. President, what troubles me most about the provisions on the ABM Treaty is their reckless unilateralism. Article VI-A of the ABM Treaty contains two provisions that have been in place for years. First, it bans both parties from giving ABM systems the capacity to counter strategic ballistic missiles; and, second, it bans testing of such systems in an ABM mode. The bill before us would effectively collapse these two provisions into one by asserting than an ABM system is actually not an ABM system, unless it has been field tested as a system. In other words, it must have a demonstrated capacity--a demonstrated capacity--of being an ABM system. Now, there is a reason why when we did the ABM Treaty we insisted that you violate the treaty first, if you demonstrate a capacity to set up a system, or second, if such a system could be deployed in such a capacity even if it has not been tested. Now, it might be useful at this juncture to cite the case of Krasnoyarsk radar, which we debated for months and months on the floor of the Senate not too many years ago. Some of the same people here were on the floor then pointing out how the Russians were violating the ABM Treaty and we could not do business with them and could not trust them. Now some of the same people are here saying we should do what we told the Russians they could not do. A gentleman who is gone, a very bright fellow whom we all respected, from Wyoming, Senator Wallop, was on the floor day in and day out warning us about the Krasnoyarsk radar. The Soviet Union built this giant radar in Siberia in the 1980's. Although the radar was never turned on, that is, its capacities were never demonstrated as would be required now, we argued that it had the inherent capability of an ABM system and constituted a violation of the ABM Treaty. The Soviets asserted that since the system had never been tested, it was permitted under the ABM Treaty. Eventually, through the good offices of my conservative friends and some of us who joined them, the Russians tore down the radar. If, in fact, the Armed Services Committee provisions that are contained in the bill prevail, absent being amended by the Senator from Michigan, they would be able to keep the radar. It would not be a violation of the ABM Treaty. I wonder how many of my friends over there would be saying, ``You know, no problem, we understand. We think there should only be one test.'' I wonder what my friend Senator Thurmond would be saying then. I wonder what my friends over on the right would be saying. They would be apoplectic, because although it had not been turned on and demonstrated, it clearly had the inherent capability and, therefore, was in violation of the ABM Treaty. I would like to point out to my colleagues that there is no legal basis for a unilateral amendment to the ABM Treaty. It seems like I have been fighting this, along with Senator Nunn, Senator Levin, and others, for the last decade. The Reagan administration tried a frontal attack on this in the early eighties saying, ``We are going to reinterpret the ABM Treaty.'' If you do not like what it says, reinterpret it. Well, we won that fight, and little did I think we would be back here having this fight. It would be better to come out here and just declare the treaty null and void and have a Senate vote saying it contravenes our national interest to be part of the ABM Treaty any longer. At least we would be honest with the people here. At least we would be telling the truth. But this is a charade. I point out to my colleagues, again, that there is no legal basis for the unilateral amendment of the ABM Treaty, or any other treaty, for that matter. The Vienna Convention on the Law of Treaties serves as a source of customary international law and provides guidance in this matter. According to its provision, a treaty is to be interpreted in accordance with the ordinary meaning of its terms. The two prongs of section 6(A) of the ABM Treaty are clear: One is aimed at constraining demonstrated capabilities, and the other is aimed at constraining inherent capabilities. In other words, this provision was intended to prevent testing against strategic missiles and development of systems that have the ability to counter such missiles. To say that only the testing, or demonstrated capacity, standard is relevant would represent a clear departure from the obligation set forth in the treaty. [[Page S 11276]] A second area in which the provisions of this bill would mandate unilateral action with regard to the ABM Treaty is defining the demarcation line between strategic and theater missiles. The bill before us would arbitrarily set that mark at a peak reentry velocity of 5 kilometers per second and an effective range of 3,500 kilometers. The so-called 5/3,500 threshold may, in fact, be a legitimate demarcation line. Guess what? The treaty says you negotiate those things. You negotiate them. That is what the existing treaty demands. Mr. President, these amendments to the ABM Treaty affirm that we will define unilaterally the line between a strategic missile system and a theater missile; and we will declare unilaterally our ballistic missile defenses are in compliance with the ABM Treaty. Forget the fact that the very issues are now being negotiated with the Russians. We are going to do what we want. As my young 14-year-old daughter's friends often say, ``Why don't we get real here?'' Let us just declare the treaty null and void and stop this. At least that would have the integrity of allowing others to trust making a treaty with us again. At least it is straightforward, and almost every treaty including the ABM Treaty says if this is not in our national interest, the President can declare it so and we are out. So let us not wreck the ABM Treaty. Do not wreck this President's or future Presidents' ability to negotiate treaties of consequence with people when we can come along and just redefine them midstream, when we either think the other party is extremely vulnerable or we want to do something that the treaty does not suggest. I want to ask the rhetorical question: If we did not need an antiballistic missile system when the Soviet Union had over 12,000 nuclear warheads all aimed at the United States or things of vital interest to us, why in the devil do we need it so badly now? As Senator Nunn explained, such a system is not the thing that is going to prevent a Qadhafi or some Third World screwball from detonating a nuclear weapon in the United States. They will bring it in by ship, smuggle it in, reassemble it in the basement of the World Trade Tower, and blow us up. They are not going to wait until they have an intercontinental ballistic capability to do it. This is nuts, with all due respect. If there is any lingering doubt about whether the provisions I have referenced are meant to scuttle the ABM Treaty, I hope we disabuse ourselves of that. The ABM Treaty is based on a very simple, yet powerful premise that has been tested and proven to be valid--and that is that the development of defenses against strategic ballistic missiles is inherently destabilizing. Were the Russians to develop a shield against strategic ballistic missiles, what would be our reaction? We would do the same thing they are likely to do if this provision becomes law-- that is, maintain the means to overwhelm those defenses. Or would we say, ``You know, it's good for everybody, that they are now impervious to attack as long as we keep our missiles at the same number. We do not have that capability, but we are going to trust them; we have no problem.'' We know we would rush to do that. Or would we sit here and say, ``My Lord, the only thing we know for sure we can do, and do it more cheaply, is build more intercontinental ballistic missiles and theater ballistic missiles, for that matter, so that no matter how many of these brilliant pebbles or whatever else is in the sky, we can just send enough in so that a few will get through.'' But we are going to expect the Russians to say, ``Don't worry, we know those good old Americans would never, ever do anything like this to us; therefore, we don't have to worry. We'll continue to dismantle our missiles, and we won't attempt to do the same thing and all will be well.'' One of the first assignments I was sent on abroad was in 1978 on the so-called SALT Treaty. I was asked to take a group of new Members of the Senate to meet with Mr. Brezhnev, then the leader of the Soviet Union. We sat down and negotiated what were referred to as conditions, Senate understandings that we had attached to the SALT Treaty. In the middle of the conversation, as I was pointing out how we would never do anything bad, Brezhnev looked at me and said through an interpreter: Let me make sure I understand this. He said, ``I would like to remind you that as bad as you think we are, we never dropped a nuclear bomb on anybody. As bad as you think we are, you are not as good as you think you are. You expect us to say we know you would never attack us with nuclear weapons when, in fact''--I am not judging whether it was right or wrong--``you have already demonstrated when your national interests are at stake, you will use atomic weapons.'' That is kind of a compelling point. If we are going to take such a brazen step as trashing a treaty that has helped to lessen the prospect of nuclear Armageddon for over two decades, you would think that there is a good reason behind it. Well, there is none that I can discern. Instead, we are asked to accept the dubious justifications contained in a couple of paragraphs of this year's Defense authorization bill. One justification is that mutual assured destruction and its corollary--deterrence--is no longer relevant after the cold war. That is right, folks, traditional deterrence is dead because the bill before us has declared it passe. Mr. President, you cannot delegislate deterrence. That concept is grounded in the fundamental interaction among States. In a continued elaboration of flawed logic, the bill goes on to assert that with traditional deterrence dead, both the United States and Russia will be encouraged to reduce their offensive strategic arsenals. This bizarre line of reasoning reveals a failure to grasp the fundamental counter-intuitive interaction between offense and defense that gave rise to the ABM Treaty in the first place. As long as we have a potentially adversarial relationship with Russia--in other words, as long as we are not dealing with a Canada, or a France, or a Britain--our sense of security will depend on the confidence we have in our retaliatory capability. Anything that undermines confidence in retaliatory capability--which is what strategic missile defenses do--will increase the reluctance of one side or the other to reduce offensive strategic forces. One implicit aspect of the bill's analysis is correct--the Russians do not have the economic means to develop an ABM system on a par with what we are capable of developing with the expenditure of a large portion of our treasure. But they do have a stockpile of surplus warheads which they could deploy to respond to our national missile defense system. With our planned deployment of a national missile defense system, the Russians, now feeling less certain of their retaliatory capability, will opt for the next best alternative--they will ignore their remaining commitments under Start I and they will refuse to ratify Start II. It will not end there--they are likely to begin expanding their strategic forces to overcome missile defenses. We will respond by expanding our forces and by developing even more robust missile defenses, and so on. In short, we will restart the spiral of escalating nuclear deployments that marked the worst days of East-West confrontation. What a cruel irony that would be--after the cold war, when we could have achieved significant reductions in strategic arms--we will instead have created the kind of bankrupting, paranoia-driven arms race that the ABM Treaty sought to prevent, and, indeed, did prevent during the cold war. Another justification for scuttling the treaty could be called the Barbarians are at the gates argument. According to this line of reasoning, there are numerous rogue States on the verge of acquiring advanced tactical and strategic ballistic missiles. And we urgently need to develop the means to counter this imminent threat to our national security. This is a crucial matter, and one which deserves more careful analysis than has been employed to date. I know about the estimates that say that some countries are only a decade away from having long range ballistic missile delivery capability. But I question the validity of those analyses. [[Page S 11277]] Many other reputable studies by experts in the field indicate that the nations causing the greatest worry to the Defense Department will not acquire long range delivery systems for the next 20 to 30 years, if ever. Even Defense Department data reveal that 97 percent of the Third World missile threat comes from theater ballistic missiles with a range of 1,000 kilometers or less. The delivery system of choice of rogue states targeting the United States with weapons of mass destruction will not be ballistic missiles. There are plenty of ways to circumvent defenses without even using missiles. These are the threats on which we should focus our ever- scarcer resources, not on the alarmist scenarios that are being touted by the proponents of national missile defense. If a national missile defense can be rendered ineffective by an overwhelming Russian attack, and if such a system is many times more capable than what is required to contend with the Third World theater ballistic missile threat, then we are left to ask a basic question-- what are we spending tens of billions of dollars to defend ourselves from? I think that the only logical conclusion is one that is not explicitly stated, but begins to emerge if you read carefully between the lines. The real reason for going on a crash program to develop a national missile defense system is that there are some who don't care that the ABM Treaty will be jettisoned because, in their view, arms reduction per se is not in our national security interest. If our deployment of a national missile defense causes the Russians to abandon START II, that fits right in with their strategy. Such a move by the Russians will provide the excuse they need to argue for maintaining and perhaps even expanding a large United States strategic arsenal. I realize that there are others who might vote for a national missile defense system because, upon first glance, it seems to be a way to render strategic ballistic missiles obsolete. I know that not everyone who supports a missile defense wants an arms buildup. Some may honestly believe that a national missile defense is a path to future arms reduction. But I would hope that those who do want arms reduction will realize the essential paradox of defense and offense where strategic ballistic missiles are concerned. The more you try to defend, the more the other side will buildup. This has been borne out by experience. In this manner, a well-meaning attempt to reduce the effectiveness of strategic weapons by building a robust defense could have the perverse impact of leading to a new and costly arms race. In closing, I would just like to remind my colleagues who remain skeptical about the usefulness of the ABM Treaty, that the START treaties--in which both sides have agreed to cut their strategic arsenals by a total of two-thirds--were concluded without the United States having deployed a single strategic defensive system. The ABM Treaty has served the purpose of arms reduction remarkably well. We should seek to build upon its successes, not scuttle it for an ill-defined and perilous course. Finally, let me say that if Senators are going to stand on the floor and say they are going to vote against the Levin amendment but they support START I and START II, then I respectfully suggest that they go read this legislation. I do not know how you can say that. If a Senator is going to say, ``I support the ABM Treaty but I am against the Levin amendment,'' I suggest he or she go read the legislation before us. If a Senator comes to the floor and says, ``By the way, I not only do not like the doctrine of mutual assured destruction, I do not support START I, START II, or the ABM Treaty,'' then I say vote against this amendment, because then you will be intellectually honest. It is a legitimate position to take. But let us not kid the American people and the world and say we support reducing the number of nuclear weapons, we support START I, we support START II, we are even for a START III, which we are contemplating, and we are for the ABM Treaty but, by the way, we are going to vote for this legislation. You cannot do both and be intellectually honest about it. So, as they say, pick a team, pick a side, pick a position, but do not pretend you are on both sides because you cannot be against Levin and for the ABM Treaty. You cannot be against Levin and for the START II agreement. You cannot be against Levin and for further reduction in the nuclear arsenals of the major powers in the world. I thank my colleague from Michigan, and I yield the floor.

Mr. BIDEN

Mr. BIDEN. Mr. President, I am introducing a bill today that I do not much like. It involves the so-called Dole-Molinari rules of evidence which the Congress included last year in the 1994 crime law. This provision made a radical change in the Federal Rules of Evidence. It took the unprecedented--and in my mind absolutely unwise and unwarranted--step of allowing unproven allegations of prior crimes to be used against a defendant at trial. These new rules--which apply in sexual assault and child molestation cases--were added to the crime law over my strenuous objections. My objections were twofold, one substantive and one procedural. I will detail what I believe are the serious substantive problems with the new rules in a moment. First, I must point out that the way these rules were adopted by the Congress contravenes--indeed flaunts--the procedures we have used, with certain modifications, since 1948 for making alterations in the Federal rules. I am talking about the Rules Enabling Act. That act allows for a thoughtful, inclusive process for considering any changes to the Federal Rules of Evidence--rules which have been on the books for many, many years and which have been relied upon by judges and litigants in countless cases. The Enabling Act process gives the Judicial Conference of the United States, the organization of America's Federal judges, and, ultimately, the Supreme Court a first cut at any proposed changes. The conference, through its various committees, solicits the views of judges, lawyers, and academics who have studied the rules, worked with the rules, and identified any problems with them. The process ensures that the public is given the chance to comment about proposed changes, and guarantees that these comments be considered by the rule-makers. [[Page S 10967]] It is at that point--after the careful, detailed and encompassing review and drafting efforts of the conference--that the U.S. Supreme Court makes recommendations to the Congress for our acceptance or modification. This mechanism is designed to head off unwarranted changes and avoid unintended consequences. And it ensures that decisions about changes in the rules are made in a deliberative, cool- headed way, rather than in the heat of a political moment. Passing as we did the Dole-Molinari rules last year--in a whirlwind rush to bring crime bill negotiations to a close--we thumbed our noses at this most important and worthy process. I did succeed in structuring the rule change in the crime law to ensure that we would have the benefit of the Judiciary's view, albeit after the fact. The provision was drafted to delay the implementation of the rules to allow the Judicial Conference to weigh in on the issue. This is how it works: The Dole-Molinari rules will go into effect unless we in the Congress repeal them outright or adopt the Judicial Conference recommendations. I, for one, would prefer a complete repeal. And, I may point out, the Judicial Conference agrees with me. The Judicial Conference itself unanimously voted to oppose the new rules. They have called on us to reconsider our actions and change our minds. They, too, favor a repeal. But they are also pragmatic. So they have sent over a proposal--a most modest of proposals, in my view--to make the rules clearer, cleaner, and a little bit fairer. I am pragmatic as well, and I know that I stand no chance of having the rules repealed, so I am introducing the Judicial Conference recommendations today. But before we discuss these modest recommendations, I would like to take a minute to talk about the Dole-Molinari rules, and why I believe they are such a bad idea. Here is the way these rules will work. A defendant is on trial for sexual assault. He claims he did not do it. He says that the complaining witness has fingered the wrong man. Under the Dole-Molinari rules, the prosecutor in this case will be able to go out and rummage around for any witness who will testify that, some long and blurry time ago, the defendant was sexually aggressive toward her. It will not matter that this alleged prior event happened some 20 years ago. It won't matter that the woman never reported the incident to the police. It will not matter that the defendant was never charged or convicted of the crime. It won't matter that the evidence is highly unreliable. No, none of that will matter. The only thing that will matter to the jury, when it hears this sort of evidence, is that this guy is bad news. And the jury will be able to make the following leap of logic: ``Well, since he did it once, he probably did it again.'' Jurors will also be able to say to themselves something like this: ``I'm not so sure he committed this particular crime that he's now charged with. But he's a bad guy--he hurt that other women, so it's OK for me to convict him today--he has it coming.'' But wait a minute. It is a cardinal tenet of Anglo-Saxon criminal jurisprudence that the prosecution must prove that the accused committed the specific crime for which he now stands accused--not some other bad act and not merely that he is a lousy or wicked person. Or put another way: an accused must be tried for what he did--not for who he is. Over 100 years ago, the Supreme Court in the case of Boyd versus United States, underscored the importance of the rule against character or propensity evidence. In that robbery case, the court said that evidence of earlier robberies-- Only tended to prejudice the defendants with the jurors--to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community. Let us be honest about this. The whole point of these new rules is to increase the number of convictions in sexual assault and child abuse cases. And I believe, without a doubt, that they will do just that. But at the risk of stating what should be obvious: More convictions are not necessarily a good thing. What we want is more convictions of the guilty. If any of those who are convicted under the new rules are actually innocent--and I believe that this is precisely the danger at hand--there is cause only for horror, not celebration. As Professor Wigmore--one of the preeminent evidence gurus of all time--has said about this sort of evidence: It is the natural tendency of the jury to give the evidence excessive weight--and either to allow it to bear too strongly on the present charge, or to see it as justifying a condemnation, irrespective of the accused's guilt of the present charge. This type of evidence has less to do--in my view--with the search for the truth, than with a blind desire for vengeance. Now remember, I'm the guy who authored the Violence Against Women Act. It has been my crusade for the past 4 years to have violence against women taken seriously. I have increased the penalties for rape. I have talked to anyone who will listen about the epidemic of violence against women, and about our obligation--our urgent obligation--to put a stop to it now. I devoted an entire Judiciary Committee report to how the criminal justice system is not aggressive enough in its pursuit of rapists and other criminals who make women their targets. I, too, want to see more rapists and child abusers put behind bars. But not at the price of fairness. And not at the expense of what we know in our hearts to be right and just. And let me clear up one more matter. Evidence of prior uncharged crimes is admitted into evidence frequently. But it is admitted for a legitimate purpose--to help prove, for instance, a pattern of conduct, preparation, identity, plan, intent, or purpose. What we're talking about here is admitting evidence for what in my view--and which for hundreds of years has been considered--a patently illegitimate purpose. But that's where we are. And the bill I'm introducing today--the Judicial Conference recommendations--doesn't change that. Like the Dole-Molinari rules, the Judicial Conference proposal makes a dramatic aboutface from current practice--and allows for the introduction of propensity or character evidence in sexual assault and child molestation cases. But the Judicial Conference did make a few very modest changes--which the conference itself describes only as correcting ambiguities and possible constitutional infirmities while still giving effect to Congress' intent. Indeed, this proposal is so modest--and is so in keeping with the intent of the original rules' sponsors--that I will be very interested to hear what possible substantive objections anyone could have about them. Here are the changes proposed by the Judicial Conference: The proposal makes it clear that the rules are subject to the other Rules of Evidence. This is totally unremarkable. As everyone knows, all evidence introduced under a particular rule is subject to the other rules--like the rule against hearsay, and the rules allowing judges to balance the prejudicial impact of evidence against its probative value. What is remarkable is that the Dole-Molinari rules were drafted in such a way as to seem mandatory--they could be read to require a judge to admit the evidence, regardless of whether its prejudice outweighs its probative value, and regardless of whether any other rule would be violated. That would be wholly unprecedented. The rewrite simply makes it clear that these new rules will work just like all the others. And let me add: The sponsors of the new rules have consistently maintained that the rules are not meant to be mandatory rules of admission, and that the general standards of the Rules of Evidence will apply. This proposal by the Judicial Conference simply makes clear what the sponsors of the rules have forthrightly said is their intention. The proposal itemizes the different factors that a judge should weigh in deciding whether to admit the evidence. Again, this is an unremarkable idea. It merely gives judges, who are having to completely change how they look at this evidence, some guidance. It tells them: When you're deciding what to do about this evidence, here are some signposts to consider--like when the uncharged act took place; its similarity to the charged misconduct; the surrounding circumstances; and any relevant intervening events. [[Page S 10968]] Again, there is nothing in this idea--simply to give judges some guidance--which would rub against the grain of the sponsors' intentions. The Judicial Conference proposal would also allow the defendant to use similar evidence in rebuttal. The Dole-Molinari rules, as currently drafted, are unbalanced: under the rules, a defendant can't, in rebuttal, use prior specific instances of conduct to prove that he did not have a propensity to commit the charged crime. Say, for example, a child testifies under the new rule that his father, the defendant, sexually assaulted him 5 years ago. The father can't put his other kids on the stand to say that he had not assaulted them--to help show that he does not have a propensity to assault children. The Judicial Conference proposal simply gives the defendant the same evidentiary rights as the prosecution. The Judicial Conference proposal also makes a number of small minor changes. It consolidates the new rules into one--this is simply a clearer, cleaner drafting approach. The proposal also streamlines the definitions--without making any substantive changes--and makes the notice provisions a bit more flexible, and more in keeping with other notice and discovery provisions elsewhere in the rules. As is by now clear, this is a very unassuming proposal. It allows for the introduction of propensity evidence. It doesn't require that the prior bad act have resulted in a conviction, or even that it have been the subject of a complaint or charge. It doesn't even require that the evidence of the prior uncharged act be particularly reliable. In fact, had this rule been proposed last year, I would have opposed it. I would have opposed it because I believe that propensity or character evidence should not be admitted into trial. Period. But I can count. And I know that I'm nearly alone on this one. That is why I am introducing this bill--the Judicial Conference recommendations--which only make a handful of modest, but important changes to make the bill clearer and a little bit fairer. I urge my colleagues to support this measure. Mr. President, I ask unanimous consent that a copy of the bill be printed in the Record.

Mr. BIDEN

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

Mr. BIDEN. Sure.

Mr. BIDEN. I would like to ask the Senator from Alaska.

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

Mr. BIDEN

Mr. BIDEN. Madam President, as the Chair observed, many of my colleagues have commented on my passion on this issue. In the last 2\1/ 2\ years I have probably risen in the Chamber a dozen times to speak on this issue. I know they do not mean to suggest otherwise, but I do not apologize for my passion on this issue. In the 23 years I have been here, there is not another issue that has more upset me, angered me, frustrated me, and occasionally made me feel a sense of shame about what the West, what the democratic powers in the world, are allowing to happen. I have on two occasions, with a year interval between, visited Bosnia, Croatia, and Serbia. This does not make me qualified for anything other than explaining the depth of my concern and anger on this issue. I have been in and out on more than one occasion in Sarajevo and Tuzla and other safe areas. I have seen, as many have on television, and I personally have interviewed in the camps, people who literally as a consequence of the cleansing left--literally, not figuratively--their elderly mother on a frozen mountaintop to die because it would have slowed up the whole family to continue with her. I, quite frankly, never thought that--as a young Senator arriving here when I was 30 years old with a traditional education both in undergraduate and graduate school with a focus on history--I would ever stand in the Chamber of the Senate and hear people refer to the policy of ethnic cleansing in anything other than a historical context. I never thought I would stand in this Chamber and read accounts and hear--not from Senators but in the general discussions--about how the Bosnian Government and the Bosnian people are trying to sucker us to get involved. I remember reading about people saying that the Jews in the Warsaw ghetto were trying to sucker us into a war against Germany. We have a way in this modern day to make the victim the aggressor. We make loose use of terms about this being a civil war. The fact is that Bosnia is an independently recognized country-- recognized by the United Nations and this country--that is being aggressively moved upon by the neighboring country of Serbia. I hear people say in the media, in the councils of Europe, and even to some extent on the floor of the Senate that the Bosnian Government and the Bosnian military are Moslem. When I first raised this issue for my colleagues--and I say not with a sense of pride but with a sense of futility, that I believe I was the first to raise this issue with my colleagues several years ago--it was not a Moslem government. It was a multiethnic government. In Sarajevo I met with the government that at the time was made up of over a third Bosnian Serb, about 20 percent Croat, and the rest Moslem. All these people are Slavs. They are Croatian Slavs. They are Moslem Slavs. They are Serbian Slavs. It is not as if you read the press here and speak to Western leaders and it sounds as though we are talking about the Government of Iran in Bosnia--or Moslem fundamentalism. All you have to do is walk through the markets and the cafes. On one occasion when I was there, the bombing had ceased and the people were out. You saw Moslem men drinking liquor, and Moslem women, none of them wearing veils. It is not a fundamentalist Moslem society. These are people for whom, when the Ottoman Empire defeated them two different times, including the Hapsburg Empire, the deal was made. If you want to own property in what is now Bosnia, if you want to do business, you must be a Moslem. So people converted. This is not some occupying nation. This is not a leftover from the Ottoman empire. These are Slavs, all Slavic people. And here I am on the floor of the U.S. Senate defending and arguing for a resolution that was the same resolution that we passed in the last months of the Bush administration. We passed overwhelmingly a law urging the President to push to lift the arms embargo, and authorizing President Bush to be able to directly send $50 million worth of American military equipment to the Bosnian Government. We passed that. That is the law today, the law. The President needs no authority to send weapons. We passed it. I stand on the floor and listen to my colleagues talk about the fall of the safe areas. Do you know how those safe areas became safe areas? The contact group got together and said, ``I will tell you what, we will make a deal with you Bosnians defending yourself in Srebrenica and Zepa'' The two that I mentioned already have fallen. ``Here is the deal. You give us the weaponry you have, and we will tell the Serbs you are no longer a danger. And we will protect you. We will disarm you. We are not only going to stop arms from coming in to you, but we are going to disarm you.'' And the Bosnian Government said OK, if that is what protects those folks. And then the United Nations understandably--and I will not take the time to explain why I think it is understandable--stood there and watched [[Page S 10638]] the Serbs come in and overrun the safe areas. How many years on this floor have we heard, ``If you lift the arms embargo, we are going to lose the safe areas''? You saw what the Senator from Arizona spoke to on the floor last week. He held up a picture, I think from the New York Times, showing U.N. military blue- helmeted personnel sitting on their weaponry watching the Serbs in Srebrenica divide the women from the men, to send the women to rape camps, and take the able-bodied young men and send them off in another direction to prison camps, and then load everybody else up on a truck who was old and infirm and not suitable for rape or work and banish them to a third ``safe area.'' Then I hear today from the administration and others on this floor that what Senator Dole is proposing is not a policy. Let us review what the policy of the contact group, of which we are a part, has been. And I challenge anyone at all within hearing distance of this discussion to correct me if I am wrong or they think I am wrong. What is the policy of the contact group? One, negotiate a settlement. Two, in the meantime, guarantee the safe areas. That is the policy, beginning, middle, and end. Now, let us examine it. When we joined the contact group--and we had not been a member of the contact group--we said we are joining because we had a commitment, made public, from the contact group members that, if in fact the contact group arrived at what they believed to be an equitable settlement, that they would present that settlement, which is essentially a division of Bosnia, to both the Bosnian Government and the Serbs in Pale, and whoever rejected the contact group settlement would ``suffer the repercussions.'' So guess what? We signed on. We came up with a proposal. I argued against it because it called for the partitioning of Bosnia, in effect, essentially 51-49. Presented to the Bosnian Government, they accepted it. Let me remind all my friends, they accepted it. And the Serbs, meeting in Pale, their self-appointed ``parliament'' rejected it. And what did we do? We suggested maybe we have to ease the arms embargo--ease the economic embargo on Belgrade to get Milosevic to put more pressure on Karadzic to accept. And then we said we are going to use airstrikes. Remember? That is what we said. Well, obviously, the policy of a negotiated settlement is not on the Serb agenda. That is not part of what they are contemplating. And obviously we, the West and the contact group, did not fulfill our commitment. We reneged. And as they say in court, ``Check the record.'' We reneged. Nothing bad happened, directly or indirectly, to the Serbs. Then we are told--and I hear it time and again--``You know, we cannot lift this embargo. Even if the Bosnian Government had weapons, they would not know how to use them.'' Ladies and gentlemen of the Senate, the same Bosnian young men were in the same army as the Serb young men. There was universal conscription until the breakup of Yugoslavia. They are fully as capable. They need no help. They can do it themselves. They are not a bunch of folks who are not ready to fight. I heard someone say today--and because I am not sure whether it was intended to stay in the room or not, I will not mention the name --that he recently made a commencement speech at a major university, and his predecessors had made similar speeches at that university 20 years earlier and were greeted with signs saying ``get out of Vietnam,'' and this particular person said, ``The irony was I was greeted with signs saying `get into Bosnia.' How ironic. Cannot we learn our lesson?'' The lesson is very different. Vietnamization was never a possibility because the Vietnamese people did not support it. Yet, unlike Vietnam, the Bosnian Government said only one thing, ``Do not send us your men. Do not come and fight for us. Let us fight for ourselves.'' All those of you who think you are Balkan scholars, read the literature. I heard 2 years ago on this floor, ``We cannot do anything in Bosnia. They are the same forces, the Yugoslav forces that held off the Germans.'' I might remind you most of that holding off was done by Bosnians in Bosnia. They were Yugoslavs, but it was in Bosnia. These tough fighters do not all live on the other side of the Drina River. The point is that these folks are fully capable, have a long history of both a will and a capability of defending themselves. But what have we done in the name of peace? We have said, ``If you defend yourselves, you will widen the war.'' Translated --we would rather 300,000 of your people get slaughtered in genocide than have the rest of us run the risk of a widening. The second part of the policy--protect the safe areas. Well, does that need to be spoken to? There will be no safe area, Madam President, within 6 months. That is the plan. That is how the West is going to save its conscience, because if we dally around enough, do not let them fight for themselves, at the end of the day there will be nothing to protect. We will say, ``Oh, my God, my God, what an awful thing has happened.'' The Secretary of State said today, ``Many mistakes have been made. We would not do what we did again,'' in terms of policy. Well, we are doing what we did again and again and again and again and again. Madam President, I was told 2 years ago on this floor that airstrikes do not work; it does not make any sense. Yet, we are told today that the reason why we do not need this bill, I say to my friend from Connecticut, is that in London they set down the law--bang. The contact group said, ``If you, the Serbs, go at Gorazde, we will massively retaliate with airstrikes. It's going to work now.'' Do you not find that amazing? When asked, by the way, ``Why Gorazde, why not Tuzla, too? Why not Bihac? Why not Sarajevo?'' ``Well, we intend that is probably going to be covered,'' I think was the response. Even a kid like me from Delaware can figure this one out. How did all of a sudden the threat of massive airstrikes take on a utility and capability it did not possess for the last 2\1/2\ years? What has happened? Was there a revelation? Did the Lord come down and say, ``Mend your ways. You can do it if you have the will"? Is that what happened? And if it did happen, Madam President, I respectfully ask the opponents of this amendment, why only Gorazde? Why there? Why nowhere else? Madam President, this is not a policy. As I have said on this floor before with regard to arms control, we, the U.S. Congress, are not in a position, nor were we institutionally designed to formulate foreign policy. But, Madam President, we know enough to know when one stinks. We know enough to know when one is recognized as a failure. We are institutionally constructed to be able to acknowledge that. Madam President, the Secretary of Defense said to us today, ``if you lift the arms embargo, three things will certainly happen.'' I wrote them down because I found them so fascinating. First, the loss of the enclaves will occur. I assume that means if we do not lift the arms embargo, then there is at least a chance the enclaves will not be lost. Two are gone out of five now. What will keep the others from going? Everybody understands the way this works, right? It goes like this. Since we did not sign onto the policy in the first place of putting the U.N. forces in there, and they went ahead and did that, then we, the United States, are now obliged to be there if the U.N. concludes that they should no longer be there. Let us go through this again. The U.N. was placed in there when Western nations concluded that is what they should do. We said, ``OK, if that is what you want to do, but we don't think that is going to work.'' Then, from the time I first introduced the lifting of the embargo 2\1/2\ years ago, I was told, ``No, if you lift the embargo, the U.N. forces will leave and everybody will be slaughtered.'' Then that took on a new twist in its maturation. Now it goes like this: ``U.N. forces are sent in, we lift the embargo, U.N. forces go out, we then must go in because we have committed to take the U.N. forces out.'' Therefore--talk about the tautology--if you vote to lift the arms embargo, you are committing ground troops to fight in Bosnia. We are being ``suckered in'' [[Page S 10639]] was the phrase used today. Is that not amazing? How did we get there? Had we listened and the arms embargo lifted, you would probably have a stalemate on the ground by now, and probably have a settlement. Obviously I cannot guarantee that, and we could have a wider Balkan war as well. Only history would be able to tell that had we acted. But now, Joe Lieberman, Joe Biden, and Bob Dole--who are arguing against putting any American forces on the ground--are told that if we prevail, we are the reason America has to take over the war in Bosnia. Madam President, the second thing the Secretary said today was that if we lift the embargo, we will damage the alliance. Tell me how you save this alliance? Tell me why, I say to any of the people up here, they should continue to spend $100 billion a year for NATO when there is no Soviet Union and they cannot even stop ethnic cleansing in their own back yard? Third, I am told, they will send ground forces into Bosnia if we lift the embargo. Madam President, I am tired of all of this, and I am sure you are tired of hearing me over the last couple of years repeat these arguments. But ask yourself the following question: If air power and the threat of it will work to save Gorazde, why only Gorazde? Another argument is that the Bosnian Army cannot fight, it would have to be trained and equipped. For example, the Secretary of Defense said today, if we lift the arms embargo, we will be in the position of going to war with our allies because we will be attempting to break the embargo through French lines to get in American tanks. Whoa,--this is ridiculous. Madam President, the same people who say these folks cannot fight are the same people who worry--on this floor and in the press 2 months ago--that the Bosnian Government is at fault because of the gains they made in Bihac. Remember? They were becoming too powerful. They beat the Serbs initially. All of a sudden the issue was that they are too powerful. This is going to make Milosevic mad. Milosevic is now going to cross the Drina River. But now we are told, if you lift the arms embargo, they cannot use the weapons anyway. Well, let us see, let us see. I do not want American ground forces in Bosnia. I respectfully argue we would not even be talking about the possibility had we not signed on to a failed policy of putting UNPROFOR in there in the first place. And, Madam President, lastly--my friend from Rhode Island is waiting to speak and I will yield with this comment--we are told now that if we lift the arms embargo, all these terrible things are going to happen. I ask my colleagues to ask themselves, if we do not lift the arms embargo, is anyone going to protect the safety areas? If we do not lift the arms embargo, is anyone going to protect the part of Bosnia that is not already occupied by the Serbs? If we do not lift the arms embargo, is the alliance going to be fixed up, right quick? If we do not lift the arms embargo, is the United Nations going to become a credible institution again in terms of peacekeeping? If Members can answer yes to three of those four, do not lift the arms embargo. But if Members cannot answer yes to three of those four-- and I think you cannot answer yes to any of them --then I respectfully suggest that the Senate majority leader and the Senator from Connecticut are correct. We tried this how many times, I say rhetorically, to my friend from Kansas, over the last 1\1/2\ years? There is no more time, Madam President. Time does not work for these people. Time is not on their side. They will all be dead by the time the West decides to do anything at all about this problem. I do not apologize for the passion. I do not even apologize for the time, but I do apologize to the people of Bosnia. I do apologize to the women in those rape camps. I do apologize to those men in concentration camps. I do apologize. For we are not to blame. But we have stood by-- we, the world--and watched in the twilight moments of the 20th century, something that no one thought would ever or could ever happen again in Europe. It is happening now. If we do not do anything now to help them fight for themselves, I ask, when are we going to do anything? I ask the rhetorical question, do you think we--we, being the West--would be doing this, do you think we would be as indecisive, do you think we would be as timid, do you think we would be putting a rapid deployment force in who has an express purpose to defend only the peacekeepers there, not the civilian population, do you think we would be doing that, if, in fact, these were not Muslims? Do you think we would be doing that if this was a Christian population? Maybe we would, Madam President, but I have a feeling the reason why the world has not responded in Europe is because they are Muslims--the same reason we did not respond in Europe--because they were Jews.

Mr. BIDEN. Parliamentary inquiry, Mr. President. Mr. President, is the Chair in the position, since so many people are wishing to speak, to, in a sense, unofficially acknowledge the order in which we are standing on the floor? I think it might make things appropriate. I know the Senator from Michigan was here before the Senator from Delaware. The Senator from Delaware was here before other people. My inquiry is, is there an attempt on the part of the Chair to recognize people in the order in which they are sitting on the floor waiting to be recognized?

Mr. BIDEN. Will the Senator yield?

Mr. BIDEN. I say to my friend from Maine and from Rhode Island, had they listened to the Senator from Delaware 2 years ago, we would not be having this debate today.