Mark Dayton

Mr. DAYTON

Mr. DAYTON. Mr. President, I rise also to pay tribute today to the heroic men and women of our Armed Forces who are performing so well on behalf of our country in Iraq. Their courage, their patriotism, and their valor represent the finest traditions and the best values of the American military and of the country which they serve. They have fought brilliantly, they have fought bravely, and they have fought successfully. They have now advanced to within 10 miles of Baghdad. They have been victorious thus far. They will be victorious from now on. And they will be victorious in the end. To the brave women and men who gave their lives in the service of their Nation, to their families and friends, the people they love and the people who love them, we express our heartfelt gratitude and our deepest sorrow and condolences. We are in awe of your courage, your heroism. As the families and friends of those fallen heroes who are your friends and neighbors, your coworkers and church members, we know that you have suffered the most grievous losses and must be suffering inestimable pain. Our hearts go out to you. Our prayers are with you. We stand beside you ready to help in any way we can. We say also to the families and friends of American soldiers wounded or captured or missing or still fighting or still deployed in Iraq, please let us know how we can support you and assist you during these difficult times. Our prayers are with you also for the swift recovery and safe return of all of our troops back to their country, their fellow citizens who are so proud and so grateful of them. I also want to pay my respects to the military command responsible for the planning and execution of this engagement. Secretary Rumsfeld, Chairman Myers, the Chiefs, you have served our country and you continue to serve our country with great honor and distinction in carrying out your duties, your oaths of office to the best of your abilities. You are succeeding. You are winning this war. Some may not agree with everything you are doing. I don't agree myself on everything. But you have earned my utmost respect and admiration for your dedication and patriotic service to our country. You do not deserve the backstabbing, the second guessing, the carping, the Monday morning quarterbacking which has dogged your every decision. Former President Dwight Eisenhower once said: Any high school kid can do better with a presidential decision with 20/20 hindsight than a president can at the time when he only has partial information and is operating by his wits. It is all too easy for someone with a military background to sit in judgment in hindsight. I do not disagree with their constitutional right to do so. I dispute their judgment in doing so. I question their motives for doing so, as some appear to be vying to become the next network analyst or the next Geraldo. As the saying goes, actions speak louder than words, and the actions of these brave men and women fighting on our behalf, winning on our behalf, speak loudly. They drown out, they overwhelm any naysayers of their conduct and decisions they are carrying out, which, as I say, will be victorious for our Nation and we owe them our inestimable gratitude. Thank you, Mr. President. I yield the floor.

Mr. DAYTON

Mr. DAYTON. Mr. President, I am proud to rise today with my colleague from Minnesota, Senator Coleman, to pay tribute to the University of Minnesota Duluth Women's Ice Hockey Team, who just won their third consecutive National Collegiate Athletic Association championship. The Bulldogs defeated an outstanding Harvard team, 4 to 3, in the second sudden-death overtime. I was once a hockey goalie, back in the days when we used dinosaur bones for goalie sticks. So I have experienced firsthand the incredible intensity and pressure of overtime in hockey. It truly is ``sudden death.'' For the Bulldogs to win their third straight national championship under that pressure, in front of their families, friends, and many fans in Duluth, is an extraordinary achievement. I congratulate all the players on the University of Minnesota Duluth team, their head coach, Shannon Miller, who has spearheaded this incredibly successful hockey program, and UMD Chancellor Kathryn Martin. They have accomplished more than anyone could have imagined just 3 years ago, and they have made all Minnesotans exceptionally proud of them. Senator Coleman, Representative Jim Oberstar, and I have written to President Bush and asked him to invite the team to the White House. Two years ago, after the Bulldogs' won their first national championship, I read that the NCAA men's championship team had been invited to the White House. We asked the President then that the UMD women's team be so honored. The President graciously extended that invitation to the Bulldogs team and personally hosted them at the White House. Last year, we had the additional thrill of attending a White House ceremony honoring both the men's and women's NCAA hockey champions: the University of Minnesota Duluth women's champions and the University of Minnesota men's champions. Since the Gophers men's team is now in the semifinals of their national tournament, I am hopeful that we will experience that same thrill again this year. Regardless of that outcome, the UMD women's team are again the National Champions. A ``Threepeat!'' Awesome! Congratulations, Bulldogs!

Mr. DAYTON

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

Mr. DAYTON. Mr. President, I rise today to oppose the confirmation of this nominee. I do so because his stated views on important judicial matters are not only wrong but also wrong minded, wrong about the particulars of the decisions which he opposes, wrong minded about the proper role and responsibilities of the judiciary under our Constitution. The nominee has stated: Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered immoral. In this category, the nominee includes sadomasochism, cock fighting, bestiality, sodomy, and homosexuality. The nominee made those comments in an article he wrote for the University of Colorado Law Review. He was expressing his pique at a decision by the U.S. Supreme Court, with six Judges in the majority, which overturned a Colorado ballot initiative prohibiting any legal protections based upon sexual orientation. As Colorado Solicitor General, he had unsuccessfully defended that initiative before the U.S. Supreme Court. By his own words, in that law review article, the nominee demonstrated why the majority of the U.S. Supreme Court was right in its understanding and application of the U.S. Constitution and the role of the judiciary in our society and the nominee is wrong. The nominee's personal opinion presumably is that homosexuality is immoral. He is entitled to his own opinions. He is not entitled, however, to make his personal opinions the moral code of American society and then to make judicial decisions based upon them. Our country is based upon a foundation of laws which are, in turn, based upon the U.S. Constitution. It is not a society run on the personal prejudices imposed by those who are in power upon the rest of the citizenry. The judiciary is the ultimate protector of individuals whom some cultural gestapos would otherwise ostracize, demonize, and criminalize. In the extreme, where countries have their laws made that are enforced by the self-proclaimed guardians of the public more or less, which always quite conveniently match entirely with their own personal beliefs, democracy is always and inevitably sacrificed on the altar of prejudice and intolerance, masquerading as higher ideals. A democracy must be able to permit people's differences, especially in their personal lives. We are not required to like someone else's actions. We are not required to agree with their particular views. But we do have to understand and accept their rights to their personal differences from us and our society's tolerances of those differences as being the essence and the test of a democracy. Any totalitarian government--communist, fascist, Saddam Husseinist-- tolerates the behavior and beliefs which conform to their own personal views, but those whose words, beliefs, or actions are different from theirs are not tolerated and not permitted. They are dehumanized, incarcerated, and even executed because they or their views or their actions are different from those who hold the power. For those of us in a democracy, this is one of the most difficult principles to really understand, and even more difficult for us to put into practice, but that is why we have the judiciary. That is why these are lifetime appointments to the U.S. Federal courts: so that the men and women the President nominates and we confirm can make unpopular decisions, take positions that would get elected officials probably unelected because they do not follow the laws that are derived from the U.S. Constitution. The more unpopular those rights are, the more crucial it is for the judiciary to uphold them. Unfortunately, this nominee would rather pander to his ideological pals and perhaps to popular opinion than respect the greater wisdom of the judiciary and the U.S. Supreme Court which he now wishes to join at a lower level. If he does not respect their wisdom and their courage now, it is extremely unlikely that he will acquire either of those qualities when he dons judicial robes. It is a reason again why the penchant of this administration to nominate to high judgeships people who have never before been a judge, as this nominee has not, assures a lack of understanding of the responsibilities and the role, a shallowness, an ignorance and, if they are confirmed, the likely regular abuses based on those misunderstandings and those biases. I also disagree with the nominee and his characterization that gay men and lesbian women are seeking special rights when, in fact, anyone who views these matters with any understanding of reality, whether he or she disagrees or agrees with those practices, cannot possibly believe they are not subject to regular and sometimes brutal violations of legal rights, civil rights, and human rights. To twist and distort that need for the protections which the United States court system has, to afford to those who are oppressed and discriminated against and who are the victims of prejudices of those who are not willing to relent, by either greater wisdom in the spirit of our democracy or often the biblical junctions which they purport to represent, if the courts will not stand with those individuals to protect them, then there is no recourse and there is no protection. With this nominee, sadly, there is an unwillingness to even admit the reality of circumstances, much less to evidence any understanding of his responsibilities as a judge to uphold this Constitution and what it means for all citizens: The right of life, liberty, and the pursuit of happiness. Remember the admonition: Inasmuch as you have done so to these the least of my brothers, you have done so unto me. I yield the floor.

Mr. DAYTON

Mr. DAYTON. Madam President, I ask unanimous consent that further reading of the amendment be dispensed with.

Mr. DAYTON. Madam President, this amendment increases spending for America's schoolchildren and reduces the tax cut for millionaires. That should not be controversial. It finally fulfills the promise Congress made 28 years ago that we would pay for 40 percent of special education costs and would do so starting in fiscal year 2004. The President deserves great credit for proposing, and Congress for passing, increased special education funding. We have raised the Federal share to 17 percent nationwide, but that is still less than half of what we promised. It is good, but it is not enough. We have increased spending for defense and homeland security in the last couple years, and when that wasn't enough, we increased it more. We responded to urgent needs. For once, let's meet an urgent need that isn't military. Last year's increase for special education was only 2 percent of that for the Department of Defense. We can afford to do more. The need is so urgent that surely we can postpone half of the tax cut going to the richest Americans. The President's proposal would give people whose annual incomes exceed $1 million tax cuts averaging $85,000 every year. That is in addition to the $45,000 they are already getting each year from the 2001 tax bill. So who comes first, schoolchildren or millionaires? Yes, it is a vote for our children. I yield the floor.

Mr. DAYTON. Madam President, I call up amendment No. 409.

Mr. DAYTON

Mr. DAYTON. Winston Churchill once advised: In War: Resolution. In Defeat: Defiance. In Victory: Magnanimity. In Peace: Good Will. I add to that, before war, honest debate. That fundamental right of the first amendment to debate, to agree and disagree is the difference between our democracy and Saddam Hussein's dictatorship. The measure of our free country is not how well our country tolerates agreement but, rather, how well they accept disagreement. Now, however, the time for this debate is passed. Our country is at war and our Armed Forces are fighting life-and-death battles against Iraqi troops. The President has made that momentous decision, and I will support him, his military command, and the brave American troops who are carrying out his orders. In war: Resolution. Let us in the Senate resolve to provide whatever is needed to win the war as quickly and decisively as possible and then replenish our military arsenals so we quickly regain our great strength to protect and defend our country again. In victory: Magnanimity. There is no question that our Armed Forces will win this war for our country, for the Iraqi people and for, I pray, the ultimate benefit of the world. I pray the courageous Americans who will win that victory, many of them young men and women less than half our age, may return safely home. Let us who are at home now begin the practice of magnanimity, magnanimity toward the people of Iraq who did not take up arms against us, magnanimity toward their past suffering and future needs. Occupation is not magnanimous; the Marshall Plan was magnanimous. We have the obligation and the opportunity to be magnanimous and generous toward the people of Iraq and Afghanistan. In doing so, we can showcase our way of life, our economic and technical know-how, and our humanity. We should match each year the increase in our military spending with that same increase in an international recovery fund. Both are key to our national security. In peace: Good will. Our leaders must become again the lead practitioners and worldwide promoters of good will. They can allow themselves no more derisive and destructive reactions to whoever does not see our way, not to the leaders and people of other nations, not to the leaders and representatives of the international organizations, not to our fellow American citizens. We must resume our leadership of the world on the path toward international security, prosperity, peace, and good will. That is our greatest challenge. That must be our ultimate victory. I reserve the remainder of my time and yield to the Senator from Michigan.

Mr. DAYTON

Mr. DAYTON. Mr. President, on rollcall vote No. 54, I voted aye. It was my intention to vote no. Therefore, I ask unanimous consent that I be permitted to change my vote since it will not affect the outcome of the vote.

Mr. DAYTON

Mr. DAYTON. Mr. President, I thank the Senator from West Virginia. I would stand proudly with the Senator on any matter shoulder to shoulder. I believe I am 30-some years younger than the Senator. I wish I had the Senator's vigor and eloquence to carry forward. I thank the Senator for those kind words. Taking what I have learned from the distinguished senior Senator from West Virginia, I note, with dismay, that while this body has spent over 100 hours on the Senate floor debating this judicial nomination, I compare that 100 hours on one judicial appointment with the number of hours this year this body has spent discussing and debating a declaration of war before commencing a war against Iraq. And the answer is: Zero, not 1 hour, not 1 minute of formal debate in the 108th session of the Senate on this profound matter of war and peace, life and death--even now, with this Nation poised on the brink of war, a war which the United States is instigating, without direct provocation, without an immediate threat to our national security; the first war under the new doctrine of preemption, a claimed right to attack another country because they might become a future threat; the first war in which the United States is perceived in the eyes of much of the rest of the world as the provocateur, as a threat to world peace. The Times of London recently surveyed the English people and asked: Who is the greatest threat to world peace today? Forty-five percent named Saddam Hussein, 45 percent named President Bush. In Dublin, Ireland, the poll was 31 percent Saddam Hussein, 68 percent President Bush. In the Arab world, the populations are overwhelmingly against a U.S. invasion of Iraq. Osama bin Laden, with his most recent tape, is attempting to exploit those emotions, exhorting the members of his al-Qaida terrorist organization and followers to rise up against the invader, the crusader, the United States. Those sentiments come as a great shock to us, as unwarranted and undeserved as they are. A few, unfortunately, in high levels in this administration believe they don't matter, that they are irrelevant. Eighteen months ago, we had the sympathy and support of the entire world after the dastardly attacks of 9/11, support and sympathy which has been needlessly squandered and which will not easily be regained. Here at home our citizens receive color-coded warnings of greater or lesser unspecified threats. They are told to stockpile water, food, plastic sheets, and duct tape, or else they are told nothing at all. The Secretary of Defense, testifying before the Senate Armed Services Committee, on which I serve, said recently: We are entering what may prove to be the most dangerous security environment the world has known. In the midst of this ominous, dangerous, fateful time, the 108th session of the Senate has devoted no time for debate or discussion. The last 3 days the debate has been on a bill that purports to ban partial- birth abortions, a matter of importance, a matter of great concern to some, but not one that required the attention of the Senate at this moment in time. Now we move on to consider, once again, a judicial nomination, then another judge; and before that there was another judge. Does it appear we are avoiding something? Well, we are. We are avoiding our constitutional responsibility, perhaps the most important responsibility placed upon us by the U.S. Constitution: whether to declare war. As I have learned from the distinguished Senator from West Virginia, the Constitution says--simply, clearly, emphatically--Congress shall declare war, only Congress, no one else--not the President, not the judiciary, not the military--only Congress, only the 435 Representatives and 100 Senators elected by and acting for the people of the United States. Last October, a majority of the Members of the 107th Congress--a majority of the Members in the House and a majority of the Senate-- voted to transfer that authority to the President. Five months before he even made his own final decision regarding war or peace, Congress was asked to give him that authority that the Constitution assigns only to us. And Congress did so. It passed a resolution that said the President may use whatever means necessary, including the use of force, against Iraq. Oh, we use such clever euphemisms in the Senate, words which disguise the meaning of our intentions. Use ``whatever means necessary.'' And, oh, by the way, lest you forget, it is OK with us if you use force--not the lives of American men and women, not their bodies, their blood, their patriotism--use force--not the deadly, ear-splitting, Earth- shaking, people-maiming, death-dealing bombs, and other weapons of destruction, the most devastating, overwhelming, terrifying, death- dealing force the world has ever known coming from us, the good guys, the protectors, the preservers of world peace, the United States of America. What incredible foresight the Founders of this great Nation had in not wanting a decision that enormous, that Earth-shaking or ear- shattering to be made by one person--not by this President, not by any President. Instead, this President asked for--and the 107th Congress acquiesced and gave--complete, unrestricted, unrestrained authority, with no conditions, no restraints to make that decision. Don't tie my hands, the President said. Don't tie the President's hands? What did the Founders of the country think of that? Thomas Jefferson wrote, in 1798: In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. ``Bind him down from mischief by the chains of the Constitution.'' Tie his hands? That was not enough. ``Chain him to the Constitution.'' We, in Congress, are supposed to be chained to the Constitution. We took an oath. When we were sworn in, we promised to support and defend the Constitution of the United States against all enemies, foreign and domestic, bear true faith and allegiance to the same Constitution. That was our oath and our allegiance written--not to the country, not to our State, not to our Government but to the Constitution of the United States of America. The Founders of this Nation had other admonitions for the United States regarding the Constitution: Follow it or change it, but don't ignore it or evade it. George Washington, in his Farewell Address, in 1796, said: If, in the opinion of the people, the distribution of constitutional powers be wrong, let it be corrected by amendment in the way which the Constitution designates. But let there be no change by usurpation, for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. Finally, an admonition from another perspective, that of Edward Gibbon, the author of the ``History of the Decline and Fall of the Roman Empire.'' He said: The principles of a free constitution are irrevocably lost when the legislative power is taken over by the executive. In this sense, the legislative power was not taken over by the Executive. We gave it away. Here, Mr. President, you decide. If you are right, we will try to share the credit. If you are wrong, you take the blame.

Mr. DAYTON. I yield to the distinguished Senator from West Virginia.

Mr. DAYTON. Madam President, I first pay tribute to my very distinguished colleague and senior Senator from West Virginia, whose eloquence on this subject has been magnificent in the last months and whose leadership in behalf of the wisdom of the Senate and the tradition of the Senate has been recognized by--I believe the Senator said over 20,000 telephone calls from fellow citizens came into his office in response to his outspoken courage. The Senator said he noticed in last Sunday's New York Times a reprint of one of his famous speeches which he gave here just a short while ago. I thank the Senator for his gracious leadership on behalf of our country and on behalf of the institution of this Senate. This Senator has learned more about the Constitution and the traditions of this great institution from the Senator from West Virginia than from any other source. I am grateful for that education, which is actually the subject I want to bring up today because in a few moments we will begin voting once again on proceeding to a nomination to the second highest court.

Mr. DAYTON. The Senator yields without losing his right to the floor.

Mr. DAYTON. I think he would have said it was a good thing we added West Virginia to the United States of America so we could have the distinguished Senator from West Virginia to give us the guidance he did that day. Since the hour is approaching for the vote under the rules, I will conclude my remarks.

Mr. DAYTON. I thank the Senator for his kind words. I respectfully urge the majority leader and all of my colleagues to turn their attention to this fateful decision when we return next week. A decision whether or not to vote a declaration of war is one that would be a very difficult vote, one that would be a career-shaping or career-shattering vote, but it would be one the Constitution requires of us, as do our fellow citizens who elected us. And it is one that only we can and must do, to vote on whether or not to declare war. I urge the Senate to turn its attention to that matter when it resumes next week. I yield the floor.

Mr. DAYTON. The Senator yields.

Mr. DAYTON

Mr. DAYTON. Will the Senator yield for another question?

Mr. DAYTON. I thank the Senator for bringing this great man to our attention. I was not aware, until the Senator spoke, about his passing. I, like so many others, felt I knew this man indirectly, as the father of two sons, who are now 19 and 22 years old. So I reckon it was about for 20 years that I watched that show. And I think I looked forward to it as often as my sons did. The Senator captured very eloquently and sensitively the spirit of a very gentle soul, yet a very visionary man. I recall going to the National Education Foundation dinner here just after I arrived 2 years ago, and there were not as many people there as the Senator described in the event he mentioned, but there were a good 700, 800 people. Mr. Rogers was receiving the honor, Award of the Year. The first thing I noticed was, when he came out, everybody knew the song, and they all sang that song. As the Senator said, you could have heard a pin drop when he spoke. And he spoke in the same general way to adults as he did to kids. I say to the Senator, are there any other neighborhoods like that in Pittsburgh you could send to the rest of the country? If so, we can use a few.

Mr. DAYTON

Mr. DAYTON. We were elected to take an oath of office to uphold the Constitution, defend the Constitution from enemies, foreign and domestic. That is the oath each member takes very seriously. It is an oath that puts on each of our shoulders the responsibility to decide what that means. Our distinguished Senator from West Virginia, Robert Byrd, presented me with a Constitution when I arrived here. I have learned a great deal about this document, about what it says and means. I have learned about the intentions of the Founders of the country. This document is the gospel which each member is required to follow. It says the President, by and with the advice and consent of the Senate--it does not say that the Senate shall approve or how the Senate shall consider. It says the Senate will be an equal partner with the President. The President will make a nomination, and it is for the Senate to decide, 100 Senators to decide, according to their own values and according to their own background experience and according to whatever they want to bring to bear on that matter how they will decide. I have listened to a lot of these debates in the last couple of weeks on this matter. I am not a lawyer. I am not on the Judiciary Committee. I take very seriously my responsibility to weigh someone's career, weigh someone's character, to try to assess whether this is the kind of person I want to support to put on a court where he will be presiding, if he chooses, for the rest of his life; where he will be making decisions that will affect millions of people, whether someone has the right to housing or whether someone has the right to be protected from discrimination, whether some schoolchildren can go to school under better conditions. I don't know what kind of decisions this man will face, but I know they will be important. I know they will last for a long time and last beyond his own lifetime. In effect, we are making a decision about someone who will be impacting the lives of Americans for two or three generations. That is the only time this person will be evaluated by his fellow citizens before that decision is made, unlike all of us who face our electorate every 6 years, or the House Members every 2 years, and the President himself every 4 years. This man will be appointed to the bench for life. I believe I am within my rights as one of the 100 who will make that decision to have sufficient information that I can make an informed judgment. It is not for me to say to the administration the criteria they should use in making this kind of appointment. But I would be surprised, frankly, that out of all the vast numbers of highly qualified people in the country there would be someone chosen for the second highest court in the country without any previous judicial experience. If that is the case, I believe we have a special need to have information provided, to give each of us the information we seek and need to make that determination. That is not forthcoming, either. We are told we can have certain information and we cannot have other information. I received a note from the White House counselor saying Mr. Estrada would meet with me, and I appreciate the gesture. I don't want to go back into my office off the record and have a conversation. I want to know on the record. This man does not have a judicial record. We have to find other means of obtaining that information. I am wondering why it is that somebody with no judicial record, no series of decisions that we can look to, writings we can look to for guidance as to his views, why he would not feel, and why the nominator would not feel a special obligation to provide that information. If I went before the voters of Minnesota and refused to answer some of the questions Mr. Estrada refused to answer before the Judiciary Committee, I would be laughed out of the election. Certainly no one should vote for me if I would not give voters any information to allow them to understand my philosophy, what I value or not, what decisions I agreed with or disagreed with in the past, just basic information which we do not have about this man because he has no judicial record because he has never been a judge. We have elected people in Minnesota who have not had prior experience, and it is fashionable to say they are not a career politician. In fact, we have a Governor who just departed who had that view, that was the right kind of qualification. If I got on an airplane and the pilot said this is going to be a different kind of flight; I have never flown a commercial airline before, I would not feel more confident. I would be pretty worried. If somebody says they are taking their child in for surgery, and someone said that doctor had never performed that kind of surgery before, I would be very concerned. I would want to know some information about that individual. I would want to know that person's qualifications. I would want to know if that person had the training and skills to approach that matter before I trusted my life or the life of one of my children with that person. And we are entrusting the lives of unknown, not-yet-identified, very real people, very real Americans who will have to go before that court, where that court will review decisions that are made that are their last course. If justice is not served, justice will be forever denied them and that will be a tragic injustice they will suffer for the rest of their lives. We cannot foresee all of that. We cannot prevent all of it. We have a responsibility to the Constitution of the United States which we swore to uphold and defend, which our Founders thought so important that they did not even talk about the country; they talked about the Constitution. That was our responsibility. Senator Byrd says that our responsibility is to uphold the Constitution. That is our responsibility. That is the responsibility of each of us. I might want something different in terms of information or background than other of my colleagues. For some of my colleagues, the fact that the President made this nomination, he is of their political party, that is all the information they need, well, that is the absolute right of all of my colleagues who decide that way. I don't question someone else's right to make their decision however they determine based on that, the same way I don't want anyone to question my right to have the information that I probably need, just basic information so I can know the background, qualifications, judicial philosophy, and views of this person. I don't believe any electorate in any State in this country would elect somebody who wanted to serve in a high office--Governor, Senate, member of the House--who had no prior political record, no prior involvement in public life, and went before the electorate and said: I want to be elected and I am not going to tell you where I stand or what I believe or what I do or what I agreed with in the past or who I like or do not like. I don't think anywhere in America there would be positive reaction to that. I don't believe there would be a board of directors in corporate America that would hire somebody for an important position--chief executive officer, chief operating officer, the No. 2 position--that would even consider someone who would not provide the basic information that we are asking for here. To me this gets into the realm of just being ludicrous, that we are in a position of being questioned for taking the particular position that says we want information. I agree with my colleague from California. If we get the information, then there will be a vote. If we get information so those of us who have these reservations--and really, in my case, I have not come to a final decision because I do not have the information with which to do so. But I am not going to make that decision, I am not going to agree to this matter coming before this body, if I can help it, until I have that information. That is just the way it is. That is the position I have taken. Again, that is my right to do so and that is the right of any one of my colleagues in this situation. We are spending an awful lot of time here, way too much time, on this matter, given what is going on in the country today. We ought to be setting this nomination aside, giving the nominee the opportunity to present in writing the information we have requested. Either do so or not. We can assess it accordingly. We ought to turn the attention of this body to matters that, when I was in Minnesota last week, certainly concerned every one of the citizens I talked and listened to. It was not the nomination of Miguel Estrada, important as that is. It is about the war in Iraq that is looming. It is people's fears of whether we were going in; what is the right thing to do. The fact that the week before they were told to go out and buy plastic and duct tape, go out and buy bottled water and food. They are not very reassured in Minnesota about the ability of their Government to protect them. They are not really sure. I must say, based on information I have received, what I have heard expressed from local law enforcement officials in Minnesota, that what we passed in Congress has not gotten out to these first responders-- resources, training, information. I had the sheriff of the largest county in Minnesota, Hennepin County, in my office today. He cannot get information about what happened with the raising of the national security alert. He said he found out about it on CNN. He is a sheriff. He is part of the network of emergency responders for the city of Minneapolis, the largest city, largest county. He does not have any source of information from the Federal Government to tell him even that such a code has been established, much less what the reasons are, much less what some of the circumstances might be. He said he tried to find out from the FBI, with which he has a very good working relationship, what the circumstances were. They didn't know either. They hadn't gotten any prior word. That certainly astonished me. On the Governmental Affairs Committee and I sat through the hearings where this was being discussed. It was my clear understanding that the new Department of Homeland Security was going to be in constant communication with the FBI and CIA, that information was going to be shared, and they would all have that information. I also understood, because we certainly provided the funding and we certainly made it clear in the hearings on the floor that we intended for that Department to be communicating, providing resources, providing training, providing expertise and getting that out to the Hennepin counties of Minnesota-- and America. Lo and behold, he doesn't know. The FBI district office in Minneapolis, MN, doesn't know. So he is watching CNN. He was not very confident about how well this administration has done its job to get this country prepared for what may lie ahead. The citizens of Minnesota, as I said, are certainly alarmed. I believe they have an absolute right to expect that this body, this institution of the Senate would be turning its attention to these matters of concern. So I say again, respectfully, to the majority leader, the time has come to set this nomination aside to give Mr. Estrada the opportunity to respond in writing to the questions which I and others have said clearly, again and again, we must have answered to make an informed judgment, which is my constitutional obligation to the country and to the Minnesota people who elected me. I don't think that is much to ask at all. Anyway, it is what I am going to ask and require before I am going to proceed. Then I ask the majority leader, as I wrote 2 weeks ago in a letter, that I and the rest of us turn our attention on this Senate floor to these matters of war and peace, whether the United States of America is going to commit itself to an invasion of another country, a preemptive strike, something that is going to have profound consequences for our country--for our world for years to come. Our silence here, as again the distinguished senior Senator from West Virginia, Mr. Byrd, said the other day, is just profoundly deafening, the silence here in the Senate, the absence of debate, the absence of 100 different views on what we are doing, what we propose to do, what might we do. Of course the real tragedy, in my view, and the real embarrassment to this institution, great as it is, and to the House of Representatives, is that this document, the Constitution of the United States, states very clearly and definitively that Congress and only Congress shall declare war. Not the President. No one else. Just Congress. This was very clearly the intention of those who drafted the Constitution, whose wisdom and foresight is something I find unbelievable, that a group of people back over 200 years ago could have, on their first attempt--not that they didn't have drafts, but that they could put together a document that would be as brilliantly foresighted as this turned out to be, and anticipatory of just these kinds of matters: Where the temptation is to let it go somewhere else; where the pressures are from some person or groups of people to forget something or overlook something or circumvent something. They made the President of the United States the Commander in Chief of all the Armed Forces--back then of the militia. For that very reason they didn't want him, they didn't want any one person--it is not just this President; it is any President--they didn't want that one person making the decision to commit this Nation to war or keep us in peace. Boy, were they ever right. Did they ever understand why that should be a decision made by an elected group such as the Congress. We didn't declare war back in October. The President was not at that point himself--and I gather not even today is it appropriate--ready to make that final, fateful decision. That was 4 months ago, before we even got to this point. We didn't declare war. What we said is we will give the President the authority to do whatever he determines needs to be done, including the use of force. That is one of those euphemisms we use to hide our true intent, which means if he wants to have a war, he starts one. We will preapprove it and he can proceed. That is not anywhere near what the Constitution says, nor what was intended it say, nor how it was intended to be followed. Before this Nation is committed to a war, before American men and women are sent across our border to fight and some of them to die, before possibly people in this country might suffer those grotesque experiences, they have the right that their elected officials will give this matter their most serious consideration for a length of time that is appropriate. It will not take as long as has the squabble over Mr. Estrada, but it ought to take a while, because this decision is profound. The fact that we are here on the Senate floor now, the third day we are back from our recess--the fact we had a recess at all last week rather than being here debating these issues of war and peace--the fact that we are doing something now that, as I said earlier, has its own significance, has its own place, but pales in comparison with war and peace and the enormity of those decisions about the preparation of the country and the Department of Homeland Security, the preparedness of this Government to protect all of its citizens--those are the matters that concern the people of Minnesota almost to the exclusion of anything else; even to the exclusion of the problems with the economy with all those difficulties. Those are the matters which we should be reviewing on the Senate floor. If the President believes we should commit our forces to invade another country, to launch a preemptive attack, to start a war against another country--which is almost unprecedented in our Nation's history, and is certainly unprecedented in the context of leaping forward to cut off a threat which is not imminent, not immediate, but rather one which we believe would materialize, and probably would if certain lines were crossed, to remove the Government, the leader of another country--these are decisions which are so enormous in their scope immediately and which are going to have such consequence for this world for decades to follow that it is wrong for us to turn the other way, for us to refuse to fulfill our constitutional responsibility. What we should do is bring these matters to the Senate floor and say, Mr. President, that was the 107th Congress, this is the 108th Congress, we are a different body, we want to recertify that constitutional responsibility that Congress and only Congress shall declare war. No President is authorized by the Constitution to commit any forces in such a way until that decision has been made and voted on by the Congress. That is what we ought to be doing here. The American people have a right. They elected us, and they sent us here, and they expect no less of us and will hold us in the highest reproach if we fail to fulfill that responsibility, if we fail to even bring the matter up, or if we fail to direct our attention and declare ourselves one after another on the record for or against. We owe that to the people who founded this country, who sustained this document--many at the cost of their own lives. We owe that to the courageous Americans--men and women--who are amassed on the borders halfway around the world who will have to carry out that decision, if it is made, to proceed to fight. Some will be wounded and maimed. Some will lose their lives because of that decision. We owe them nothing less than to fulfill our responsibility here in the Senate at this time or as soon as the President determines that matter should be brought to our attention. Two weeks ago, think of what we went through. Our citizens were told to go out and buy duct tape and plastic sheets and not even told really what to do with them. In Minnesota, we are well aware of that. We are a cold-weather State. We have quite a bit of experience putting up plastic sheeting and filling up drafts around doors and windows. It is not something you can do lightly. You can increase the concentration of radon in the rooms by closing them up too tightly. The information wasn't even in necessarily the best interests and the best health of people who would be doing it. They are entitled to a lot more from their Government than that. They are entitled to know a lot more than to go out and get bottled water or canned food and duct tape and plastic sheets, and, good luck and God help us. They deserve a lot more than that. That is why on the floor of the Senate we should be bringing up homeland security and discussing what more needs to be done and the resources that are needed. I want to bring forth the voice of the sheriff of Hennepin County, MN, and his concerns. I want to know why he wasn't told the country was going through the second highest security level and why he had to find out about it from television rather than from the Department of Homeland Security which was established by this body to provide that kind of information--supposedly provide that kind of coordination, services, and resources. God forbid that something would happen to Hennepin County and they wouldn't have the benefit of that information; they would not know what to expect, what it might be, where it would be coming from. These are critical life-and-death responsibilities that I know the Federal Government and Secretary Ridge take very seriously. I have nothing but the highest respect and regard for him and the monumental task he is undertaking. I hold nothing but the highest respect for the sheriff of Hennepin County. The two of them ought to be working and coordinating. The sheriff ought to have the resources we provided last August in this body. It was vetoed by the President. There is more forthcoming from the 2003 appropriations. We want to make sure that those resources are getting out to local government first responders all over the United States of America so that they have that ability to train, to prepare, and to be equipped to respond as much as possible. Again, we hope and pray it will never happen. But if it should happen, they will have to be brought into action. Every second is going to count. Every person is going to have to make the right decision. Life depends on how well we help them be prepared. I commend the majority leader's request that this nomination of Mr. Estrada be set aside and that he be given the time and the opportunity to respond in writing to the questions of those of us who do not have the information that we believe we need to make the decision--that he provide that information to us; that we take a period of time then to focus on what is a life-and-death and most urgent concern of every citizen in Minnesota whom I met with and heard from last week. Even if there was another topic of conversation, they wanted to know about Iraq. They wanted to express their own views and own concerns. They see us on C-SPAN doing nothing but talking about the nomination, and the same the next night and the next night. I shudder to think what they must think about our sensibilities and our priorities. It is wrong. We owe it to those citizens to do our best in everything we stand for to bring this body back to focusing on the most critical time of our Nation--the pending war, the decision there, the responsibility of the Congress to declare war. And only Congress can declare war. Those of us who voted for resolution last fall abdicated to the President. It doesn't absolve our responsibility and what we must do now to stand up and take that responsibility back and make that decision and be held accountable by the people of America. I yield the floor.

Mr. DAYTON

Mr. DAYTON. Mr. President, the Senate has been dealing with some important matters these days, with a judicial nomination to the second highest court in the country, and shortly to bring up an appropriations bill that will determine spending across this country with hundreds of billions of dollars for the rest of this fiscal year. But there is something else going on in this country which is of overwhelming importance which really should supersede all of this, and that is the imminent prospect of a war against Iraq. At the same time we are talking about these other matters, this country is under a condition code orange, the second highest level of security we have. Our citizens have been told in the last few days to go out and get duct tape and sheets of plastic and water. Today at the Senate Armed Services Committee hearing, of which I am a member, the Secretary of Defense called the time that we are in now ``the most dangerous security environment that the world has ever known.'' It is for those reasons I wrote the majority leader and urged we not take a recess as planned next week, that we stay in Washington, stay in session, because I think this is a matter of such urgency and such paramount importance to our country and to the world that we should be continuing to focus on that matter. The ominous forewarnings of this last couple of days affirm to me what Robert Kennedy said after the Cuban missile crisis. He said: No action is taken against an adversary in a vacuum. The escalation on one side brings a counterresponse. A government of people will fail to understand this only at their great peril. For the last 55 years the leaders of this country have understood that principle. They, too, faced dangerous dictators who possessed weapons of mass destruction, who headed countries that were hostile to the United States, the former Soviet Union, China, North Korea. But they didn't attack another country to eliminate those threats, even though they persisted, even though we disagreed with those countries, what their leaders did to their own people, the threats they were around the world. The principal reason was we understood the doctrine of mutual assured destruction. We understood their destruction against the United States would be an intolerable cost for our destruction of them and for the objectives we might accomplish militarily. I believe these forewarnings we have received the last few days should cause us to ask this administration why would they expect Iraq to be any different. If the United States intervenes and begins to destroy that country and its cities, cause civilian casualties, why would we not expect Iraq to retaliate with every destructive force it has available to it within our own borders, against our own cities and our own citizens? Why wouldn't we expect Osama bin Laden to do his worst to exploit this situation, to twist facts to be seen by the rest of the world other than as they are, but in ways that would be destructive to United States standing around the world and to our own national security now and in the days and months ahead? Why does this administration believe it should disregard the lessons that other Presidents, Republican and Democrat, have recognized and observed and proven to be as valid then as they are today? What is different about this situation? At the Senate Armed Services Committee hearing this morning I asked the Secretary of Defense his assessment of our ability to protect our citizens from retaliatory attacks against them if we were to invade Iraq. I asked that question twice. How do you assess, Mr. Secretary, our ability to protect our citizens in their homes and their schools and our cities from an enemy attack? Neither time did I receive a direct answer to that question. Neither time. I have the highest regard for the Secretary of Defense. He has an enormous responsibility. He brings tremendous experience and ability and a heroic dedication to our country to this task. But if all this administration can offer the American people, when our national security alert is raised to the second highest level, is duct tape, sheets of plastic and water, there is something very seriously wrong, if this administration intends to start a war, not against the most urgent threat to this country, not the threat that endangered us before, attacked us before and endangers us now, according to many of their own officials, al-Qaida, Osama bin Laden, the tape that was released this week that issues that threat against us and our citizens once again, not an attack against al-Qaida but against Iraq, against a country that, no question, is ruled by an evil man, a dangerous dictator, a man who almost certainly, as the Secretary of State has demonstrated, the President in the State of the Union, possesses biological and chemical weapons and has for the last 12 years, ever since the first President Bush made a strategic decision at the conclusion of the gulf war to leave him in power, which may have been the right decision given the other options that were available. Yes, an evil dictator, but one who has been constrained in key respects by active, ongoing efforts of diplomacy with our allies and containment by international forces by both former President Bush and by President Clinton. Contained, constrained, not perfectly, not easily, certainly not voluntarily on his part, but effectively, more effectively than has been acknowledged in recent months. He is weaker, according to reports I have seen, militarily in most respects than he was before the gulf war. He does, by all accounts that we can obtain, not possess nuclear warhead capabilities at this time, which I agree with the President would be intolerable for this country to permit. He has not attacked his neighbors--not because he wouldn't like to, probably, but because he has not had the capability to do so under these containment policies for the last 12 years. And as far as I have been informed in various briefings, he was not actively threatening our country or his neighbors or anyone else when he was dusted off the shelf by this administration right after Labor Day. The President has properly refocused the world spotlight on this man and his intent. The President has drawn a line very clearly, which I support, that it would be intolerable for this Nation to permit that dictator to possess nuclear weapons or the missile capabilities to deliver those warheads or any warheads against this country or against neighbors in the region surrounding him. Certainly after September 11 and Operation Enduring Freedom, no one in this world could question the steely resolve of our President and his willingness, if necessary, to use military force. After Operation Enduring Freedom, no one could raise a doubt about the might of the United States Armed Forces and the strength we can bring to bear anywhere in the world as a last resort, as truly a last resort. But there is another lesson from September 11, which is that no matter how great our military might, we are not invulnerable. We are too big a country. We have too wide an expanse. We have too many possible targets for terrorists. And we saw on September 11 tragically, horribly, the damage and the destruction and the cost of human life and the untold human suffering and misery of families that a very small number of fanatical men could cause. I don't think we should back down or be deterred by any threat. I think we should do what we must to defend this country, and the principles we have established in the last half century of dealing with these threats have been ones that have prevented war, preserved our peace, and strengthened this country economically and socially in its position of leadership in the world. It would be a very dangerous precedent if we were to do, except as a very last resort, what no President in this country has done before, which is to start a war, which is to launch a preemptive attack against another country based on what it might in the future do to us. And I think we should consider what that precedent would mean if other nations were to follow that example. If we set a precedent in this ``new world order,'' as it has been called, that a preemptive attack against a possible future threat is the way to resolve crises or standoffs, what will happen when other countries adopt that path? We have seen now--and we have been forewarned--that the nuclear proliferation that we are seeing other countries undertake is the worst nightmare that many predicted years ago, decades ago if we didn't--the superpowers--bring to a halt the nuclear arms race and remove them from the shelves of the nations of the world. Now we are told that half a dozen countries--and more to come soon--will have them. That should be and must be a warning to us. What happens if we lead down a path on which we don't want other nations to follow? If we set a precedent of preemptive attack, that path is one that the world will follow at its peril. I urge the President to take that into the most careful consideration as he makes this fateful decision. I yield the floor.

Mr. DAYTON

Mr. DAYTON. Mr. President, I thank my colleague from Nevada for this agreement. And I thank the distinguished senior Senator from Alaska, Mr. Stevens, and Senator McCain also for graciously granting me this opportunity.

Mr. DAYTON

Mr. DAYTON. May I inquire, I was not clear on the sequence. Will we have the opportunity to make our remarks before the vote on final passage?

Mr. DAYTON

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

Mr. DAYTON. Mr. President, I thank the distinguished Senator from Minnesota for taking on so many of the responsibilities here, and for his involvement in the balance of our portfolios in Minnesota. I welcome the Chair. I don't like to disagree with my colleagues from North Dakota. We have an excellent working relationship. In fact, our two States--other than fighting over hockey players--generally get along pretty well on everything else, and particularly on this matter related to the water management. We have worked cooperatively on water problems in most cases over the last couple of decades because it is absolutely necessary to get something accomplished. Minnesota shouldn't be foisting problems on North Dakota that are not of its creation and that exacerbate their situation. We in Minnesota would ask the same of our friends across the border in North Dakota. In this case, that is exactly what would happen. I am very disappointed that my colleagues from North Dakota have chosen to try to insert this funding into the appropriations bill authorizing a $100 million project that I am told did not go before the Senate committees. It hasn't had that review. It hasn't gone through the normal Senate process. It has been instead snuck into this measure. I thank the distinguished Senator from Arizona, Mr. McCain, for his vigilance in this matter. I am going to read bills as carefully and as thoroughly as the Senator from Arizona does because he does a phenomenal job at identifying these attempts to circumvent our Senate process. In 1999--this preceded my time in the Senate--according to the Record, the States of Minnesota and North Dakota, along with the Canadian Government, which may not have been in complete accord, worked out language that was reflected in the 1999 bill which set forth basic procedures that would have to be followed before this project could move forward. That language says very specifically, among other things, that the economic justification for this emergency outlet shall be prepared in accordance with the principles and guidelines for economic evaluation as required by regulations and procedures of the Army Corps of Engineers for all flood projects. I am told the project itself does not meet those requirements. Minnesota projects have been turned down by the Army Corps of Engineers because of the cost-benefit analysis. The costs exceed the benefits. In this area, we were told that the project would have a cost benefit of 0.37 percent. According to the EPA, that is an understatement because it fails to take into account the environmental damage that would ensue. The solution, according to my colleagues, is to waive that requirement and have them report on a cost-benefit analysis but not have to apply the same standard or measure that is applied to the other projects in Minnesota and other States across the country, which would circumvent the will of the Congress in terms of how these projects are managed, and to make it consistent across the Nation. The funding would then allow water to be diverted initially to North Dakota but then into the Red River, which is the common boundary between Minnesota and North Dakota, and within the site of severe flooding in recent years, which included cites that are on the Minnesota and North Dakota border. But also, then, at the very northern part, as we border Canada, the river diverts from North Dakota--the Rainy River--and runs across our northern border. I wish I could show my colleagues this picture. It is of this last summer, the flooding that occurred in Roseau, MN. The entire city was under water--everything except the Polaris manufacturing plant, which employs 1,800 people in the northwestern corner of our State. If that had been flooded, the company's loss would have been just so devastating to the region; its cost is almost incalculable. It was within half an inch of flooding entirely and only because the entire city gave up on their homes and went to sandbags. Just down the river in, Warroad, MN, the dikes were an inch from overflowing and flooding the entire city. So anything that would divert water from anywhere else and put that water downstream into Minnesota poses a grave risk to our State. That is the reason our Department of Natural Resources has opposed it, along with local officials throughout Minnesota. There are also concerns about the effect in terms of the solidity of the water in Devils Lake. Because of its own problems, it is much different in quality and characteristic from water elsewhere. So, again, they are going to solve their problem by passing it on to us. I think, again, this is grotesquely unfair and unwarranted. This project is opposed by not only the State of Minnesota but by the Environmental Protection Agency. We have castigated EPA recently--some of us--in some of their decisions. In this case, EPA stands four square with the environmental organizations in opposing this project. The U.S. Fish and Wildlife oppose it. The State of Minnesota, the Canadian Government, the Great Lakes Commission, Taxpayers for Common Sense, the National Wildlife Federation, Minnesota Conservation Federation, the Minnesota Center for Environmental Advocacy--just about everybody opposes it except for North Dakota. I understand the reasons that the North Dakota Senators would want to accomplish this project but not at Minnesota's expense, not at the violation of our procedures here, not at the circumvention of the way we send legislation through our committees and the governmental relations we have between North Dakota and Minnesota and Canada. We are attempting to work constructively to solve these problems. This is not the way to do that. I urge my colleagues to oppose this measure. I also point out that the Army Corps of Engineers, which is the very entity that would be carrying out this project, itself has indicated that it would not favor proceeding at this time. It was, I expect, the decision of the Chief of Engineers, Robert Flowers, of the Army Corps of Engineers, in August of last year, who announced he would not approve the environmental impact statement because the Corps had not given adequate consideration to the project's potential for serious environmental damage. He recommended that the International Joint Commission be given the opportunity to examine the report. That unwillingness to proceed--again, a Federal Government agency doing its job properly, as instructed by the rules and regulations of laws passed by Congress and the rules and regulations that itself promulgated--brought this project to a halt. So now we are going to circumvent that entire professional judgment here in the Senate. Mr. President, I conclude my remarks at this point, but I ask for the yeas and nays on this amendment.

Mr. DAYTON. In the judgment of Minnesota, that is what you are doing. I thank the Senator.