Joe Biden

Mr. BIDEN

Mr. BIDEN. Mr. President, I spoke to this amendment at length earlier today and yesterday. I yield the floor. Amendment No. 1247, As Modified, to Amendment No. 1199 (Purpose: To give the President authority to waive the prohibition on assistance to countries that aid terrorists)

Mr. BIDEN. Mr. President, for the benefit of my Democratic colleagues, I believe that we will be able to accept--and we are clearing this now--the Brown amendment No. 1229, as amended, and the McCain-Leahy amendment No. 1240 that relates to special assessments, and the Shelby amendment No. 1230. It is my hope and expectation that the Republican manager of the bill may be able to accept, with some possible modification, Senator Nunn's amendment No. 1213 on posse comitatus, and Senator Leahy's amendment No. 1247 on foreign policy. But while we are trying to work that out, I suggest that maybe it is appropriate for the Senator from Connecticut to proceed. Mr. President, if I have not already, I ask unanimous consent to be added as a primary cosponsor to the Senator's amendment.

Mr. BIDEN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. BIDEN. Mr. President, I understand that the distinguished chairman of the Judiciary Committee is working on the possibility of accepting or working out an agreement on the Nunn-Biden amendment on posse comitatus. Is that correct?

Mr. BIDEN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. BIDEN. Mr. President, on behalf of Senators McCain and Leahy, I call up an amendment numbered 1240 and ask for its immediate consideration.

Mr. BIDEN. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 1240

Mr. BIDEN. Mr. President, if the Senator will yield, we are prepared at the same time to accept Hatch amendment No. 1233 relative to airline carriers. I urge that both of these amendments be accepted. They are both at the desk.

Mr. BIDEN

Mr. BIDEN. The Pressler amendment; three out of seven. That is better than your average.

Mr. BIDEN. We can take Hatch. We can take the Hatch amendment, and we are happy to do that. We are ready to accept the Hatch amendment. We have already taken the McCain amendment. That is two out of six. That is about what your average is.

Mr. BIDEN. I ask the leader, will he be willing to continue on the bill if we drop the four gun amendments and vote on the other amendments?

Mr. BIDEN. Let me reiterate. It was filed, I am told. And, No. 2, of the 35 or so amendments Republicans filed, we did not have copies of any of those amendments either. I mean what are we talking about here?

Mr. BIDEN

Mr. BIDEN. If the Senator will yield, Mr. President, we will make the same effort in our conference.

Mr. BIDEN. Mr. President, oh, we are doing great, I say to the leader. Things are moving along swimmingly. At this rate, we will be done.

Mr. BIDEN

Mr. BIDEN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. BIDEN. Mr. President, I urge acceptance of the amendment.

Mr. BIDEN. Mr. President, the amendment that the Senator from a narrow exception to the Posse Comitatus Act in order to permit the use of the military to assist law enforcement in emergency situations involving chemical and biological weapons. Before describing the amendment in detail, let me briefly review the origins of the Posse Comitatus Act and the existing exceptions to it. The term ``posse comitatus'' means literally the ``power of the county.'' Its roots trace back to English common law, where the sheriff, obligated to defend the county against any of the king's enemies, was empowered to summon every person above 15 years old for this purpose. The first Congress provided similar power to Federal marshals in 1789--authorizing the marshals to command all necessary assistance in the execution of their duty. Three years later, Congress explicitly authorized marshals to use the militia in assisting their posse. In the first half of the nineteenth century, the practice of using both the militia and regular military to assist law enforcement became commonplace-- Although whenever military personnel were called into service as a part of a posse, they were subordinated to civilian authority. Following the Civil War, Federal troops were often used extensively in the South, as well as to quell labor unrest in the North. Dissatisfaction with this practice led to pressure from Congress for explicit restrictions on the use of the military in law enforcement operations. The result was the Posse Comitatus Act, enacted in 1878. The Act is brief and straightforward: Whoever, except in cases and under circumstances expressly authorized by the constitution or act of Congress, willfully uses any part of the army or the air force as a Posse Comitatus or otherwise to execute the laws shall be fined not more than $250,000 or imprisoned not more than two years, or both. Over the past century, Congress has enacted numerous exceptions to this general principle. Many of these exceptions are for emergency circumstances, or where the need for use of the military is obvious. For example, the law permits use of the military: to suppress insurrections; to protect foreign officials and official guests; to enforce the neutrality laws and customs laws; and to assist in investigations of murderers of Members of Congress or the Cabinet. Congress has also provided some less compelling exceptions to the Posse Comitatus Act. For instance, the President is empowered to use the military: to protect certain Federal parks and timber on Federal lands in Florida; to assist States in enforcing quarantines and health laws; and to remove any unlawful inclosures on public lands. Most relevant to our present inquiry is an exception which permits the use of the military to assist law enforcement in countering the illegal possession or use of nuclear materials. This provision, enacted in 1982, gives the military broad authority to assist in the enforcement of the law. The provision explicitly provides that the armed forces may be used to arrest persons and conduct searches and seizures. The military has unique expertise concerning nuclear materials, which in my view justifies an exception. Should this Nation ever be faced with terrorists armed with nuclear materials--of whatever grade--I believe the Department of Justice and FBI should be able to draw on this expertise. I hold a similar view of the President's request for analogous authority with regard to chemical and biological weapons. The military's expertise with chemical and biological weapons give it special knowledge which would be impractical and expensive to duplicate in civilian law enforcement. The provision we have introduced is not--is not--the proposal sent to us by the administration. Both Senator Nunn and I believed that, as drafted, the administration bill would have presented many practical problems. Instead, we have drafted a new version which does the following: Description of the amendment It permits the use of the military to assist law enforcement to respond to emergency situations involving biological or chemical weapons. This assistance can only be provided if certain conditions are met: (1) civilian expertise is not readily available; (2) defense department assistance is needed; and (3) enforcement of the law would be seriously impaired if the Department of Defense assistance were not provided. Finally, the amendment requires the Attorney General and the Secretary of Defense to joint issue regulations concerning the types of assistance that may be provided. The provision permits the regulations to authorize arrest or search and seizure only in instances for the immediate protection of human life. We share the concern of many of our colleagues about using the military to enforce the law. And we do not want the military to have carte blanche to arrest suspects or engage in search or seizure. But once called in to assist law enforcement, we do not want to create the ludicrous circumstance where a soldier called in to assist law enforcement stands immobile where his safety--or the safety of others--is at risk. Mr. President, the issue comes down to this: Do we want to authorize the limited use of the military to combat chemical and biological weapons terrorism, or do we want to spend scarce resources to duplicate this capability in law enforcement? Mr. President, I am under the impression that our distinguished Republican colleague is likely to accept this amendment. I hope that is the case. Mr. CRAIG addressed the Chair.

Mr. BIDEN

Mr. BIDEN. Yes. And that would not be a gun amendment. Mr. President, that is correct. They would be the only amendments that would be in order. So there is no intention to raise any gun issue. Mr. HATCH addressed the Chair.

Mr. BIDEN

Mr. BIDEN. Mr. President, I rise to speak to the Feinstein amendment and suggest that what the Senator from California has raised here, paraphrasing director Freeh, is a debate that we should be having. I do not think there are many people, and I do not think there are any people here in this body, who would suggest that the examples the Senator has given are examples we should not be concerned with. As evidenced by the Senator's comments, she also is mindful that although there are exceptions to the first amendment they are few, and we should, in drafting legislation, keep the first amendment in mind. It is in that regard that I rise to discuss very briefly, the case of the United States versus Featherston, the fifth circuit case that the Senator mentioned. In that case, the court upheld a conviction of two leaders of a militia group who showed their followers how to make explosives. The purpose of the demonstration they put on was to prepare the group for the coming revolution. Now, the statute at issue makes it a crime to teach someone how to make a bomb, knowing, intending or having reason to know that the bomb will be unlawfully used in a civil disorder as defined as a public act of violence involving three or more people. In upholding the statute's constitutionality, however, the court read the language in the statute more narrowly than the language appears on its face. The court found the statute requires--this is the fifth circuit speaking--that those prosecuted have acted with ``intent or knowledge'' that the information would be used to further a civil disorder. Now, the Senator has adjusted the language in her amendment in order to strike a much broader intent standard that she had originally proposed. The original language she had said, ``a person intends, knows or reasonably should know that such explosive material or information will be used. . . .'' She has amended that to say that if the person ``intends or knows''--let me get the exact language here. I beg the Chair's pardon. The language now reads, ``intends or knows that such explosive material or information will likely be used for. . . .'' I would respectfully suggest that language does not meet the fifth circuit standard requiring intent or knowledge. I see the Senator is understandably occupied at the moment with the chairman of the committee, discussing this amendment, but at an appropriate point I am going to ask the Senator whether she would be willing to further amend her language to comport with what at least I believe the fifth circuit's minimal requirements are, and that is to say that if the person ``intends or knows that such explosive material or information will be used.'' Put it another way, drop the word ``likely.''

Mr. BIDEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. BIDEN. I thank the Chair. Again, I sincerely hope we do not have to wait for another bombing, another horrendous loss of life, even another day before this body will act on an issue that we have debated and discussed since 1973, the first year that I came here. There is no hidden purpose in this amendment, none whatsoever. For the life of me, I cannot understand how anyone would be against this amendment. I yield the floor at this time.

Mr. BIDEN. Mr. President, the majority staff tells me that they are checking with Senator Hatch, who is just off the floor, occupied in another matter at the moment. Also, there is a need in order to get unanimous consent to amend the Senator's amendment. There are two other individuals I am told on the Republican side who are being asked to check off. If we are not able to get them prior to 6 o'clock, I will ask unanimous consent the vote be postponed for 5 minutes. I will not do that now. Hopefully we will find that out--to give us an opportunity to determine whether or not there will be agreement. I hope there will be no disagreement on the Senator's amendment because it makes crystal clear we are not intending to deal with small arms, we are not intending to deal with those folks who are the stated reason for concern on the part of those who are opposing this amendment.

Mr. BIDEN. Mr. President, I suggest the absence of a quorum.

Mr. BIDEN. Mr. President, reserving the right to object, does the Senator have a copy of that so I can take a quick look at it?

Mr. BIDEN. Mr. President, I move to lay that motion on the table.