Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Yes. It is my understanding that for the time being I am taking his place.

Mrs. FEINSTEIN. I thank the Chair. Mr. President, I have really come full circle on the question of whether or not to send U.S. troops to Bosnia to try to keep the peace. I must say I was initially very skeptical. I believed that you could not keep a peace that the people in Bosnia do not want kept. And in the earlier meetings of the Foreign Relations Committee I was not convinced by the arguments presented by Secretaries Christopher and Perry and the Chairman of the Joint Chiefs of Staff. But as events have developed, I have come to the conclusion, after attending every classified briefing and every Foreign Relations Committee meeting, that the President's policy is the only way to stop this war and prevent its spread. I believe there is far greater risk in doing nothing and seeing the spread of this war than there is in doing something and trying to bring about a just peace. The Dayton peace agreement would not have been reached without U.S. leadership, and it will not be successfully implemented without our leadership either. I have also become deeply convinced that the United States has a moral mission here, that the cause is noble and the cause is just. Today one-half of the people of Bosnia are either dead or homeless. Rape has become an instrument of war. Atrocities have been committed that have not been seen since World War II. This must end. People have had enough of war. The United States is being asked essentially to provide one-third of the peacekeeping forces. The other day I was visited by the new British Ambassador. He pointed out to me that Great Britain is going to provide 16,000 troops, a nation far smaller than ours; 13,000 in Bosnia itself and 3,000 in Hungary and Austria. He also said, ``Know this. If the United States goes, we go, too. We in Great Britain and in Europe look at you as the leader of NATO.'' If NATO is to function, the United States must lead and perform. And I believe that is essentially the way it is today, whether we like it or not. At our most recent Foreign Relations Committee hearing on December 1, I was deeply impressed with the arguments put forward by Secretary Christopher, Secretary Perry, and General Shalikashvili. They laid out not only the rationale for our involvement but a clear and well-defined plan for carrying out our mission. Some of the opponents of this policy are making the argument that they oppose the policy but they support the troops to carry it out. In fact, the Hutchison resolution that we will be voting on shortly says exactly that. But as I listened to these arguments, I must say that to me they strike me as a figleaf at best and disingenuous at worst. We all support our troops. That goes without saying. But what message do we send to our troops if we send them off to do a job and in the same breath declare that the job that they are doing is illegitimate? How can you say, ``I condemn the mission you are being sent to do, but I support you in doing it''? Will our troops really believe they have our support if this is what the Congress of the United States says? Some have raised the specter of a repeat of Vietnam in Bosnia, but the real repetition of Vietnam would be to send United States troops to carry out a mission without supporting that mission. Some of my colleagues have asked: ``Does anyone believe we are really going to stand by our young men and women that we are going to send to Bosnia?'' Well, I certainly am, the President is, the full force of the United States military is, and I believe that the Senate will in the long run as well. In my view, the Hutchison resolution undercuts the troops. It says it supports the troops, but it is designed to give the President a back door to pull the rug out from under them. Instead of giving lukewarm support to the troops by questioning the wisdom of their job, we should unify behind the policy and commit to giving our troops every advantage, all the equipment and all the support they need to carry out the mission successfully. We cannot have it both ways. If we support the troops, we should support the policy. I have had an opportunity to review the Dole-McCain resolution, and I support it and I support it strongly. I would like to set aside some of the myths that I think have been raised by those who are opposed to it. The first is the myth of the intractable nature of the conflict. There are some who appear to have bought into the argument of ultranationalists on all sides. Yes, there have been wars for hundreds of years in the Balkans, but there has been a history of war and brutal atrocities in Britain, in France, in Germany. Today these nations are at peace. As the distinguished Senator from Ohio pointed out yesterday, we had Prime Minister Shimon Peres on the floor of the House yesterday speaking about the long history of violence in the Middle East. That goes back to the Crusades, and even beyond. Conflict has been endemic to the Middle East for centuries, but today peace is beginning to take hold. What about Northern Ireland? That conflict has gone on for a long time as well. But I do not think anyone here would suggest that the Middle East or Northern Ireland are beyond help and doomed to an eternity of conflict, and I do not think we should come to the conclusion that the only way of life in Bosnia is a way of death and atrocities and the spread of the war. The fact is that there is now an opportunity for peace, perhaps the only opportunity that we will have. If we fail to take this opportunity, this war will surely spread to Kosovo, to Macedonia. It then involves two NATO allies-- Greece and Turkey--and then it involves the rest of Europe, and Europe has always been a vital interest to the United States. Our men and women have fought two wars on the European Continent because of that interest. There is also the myth that there is no clear and defined mission, and I would like to debunk that. Some of my colleagues have complained that this operation is not clear, and that it is not achievable. But if you listen to the President, to Secretary Christopher, to Secretary Perry, to General Shalikashvili, to General Joulwan, and to others in our military, it is clear that this mission, in fact, is clearly defined. As a matter of fact, General Joulwan said yesterday he should know within the first 3 months whether the mission can succeed or not. There is a clear exit strategy. Our troops are not being asked to go to Bosnia to engage in all sorts of nationbuilding activities. The military mission and the goals are explicit, and they are limited. We will not be engaged in civilian policing. We will not be engaged in refugee resettlement. We will not be engaged in civilian reconstruction. We will not be engaged in election monitoring. The President and NATO leaders have been quite clear. Our forces in Bosnia will monitor the military aspects of the peace agreement, the cessation of hostilities, the withdrawal of forces to their respective territories, and the lines of demarcation. They will monitor the redeployment of forces and heavy weapons to designated areas and the establishment of zones of separation. That is the mission. I want to speak about the one part of the Dole-McCain joint resolution that does concern me, and that is the part that appears on page 4 and speaks to the balance of power. A major portion of this effort is to see that when the United States pulls out in approximately 1 year, there is a defensive balance of power so that the Bosnians, if need be, can defend themselves. This can be a deterrent to future wars if it is carried out correctly. However, it cannot become the launching point for radical Islamic fundamentalism on the European Continent, and I want to stress that. The Dole-McCain resolution very clearly describes periodic reports on the armaments provided to the Bosnians that the President will make to this Congress, and I think that is extremely important. I think every Member of this body should be militant in seeing that destabilizing weapons do not go into this area and that the balance of power that is achieved is a defensive balance of power. I think that is extraordinarily important, and I think it has to be clearly stated. There is another myth about the lack of U.S. interests in the region. People have said, ``You know, many of our citizens can't recognize Bosnia on a map. We don't want to send our people there. They may die. We have no major national interest in the area.'' And I thought this originally. But I believe the United States does have an interest in a safe, secure, and stable Europe. The United States does have an interest in assuring that this conflict does not spread and become the third general European war of this century. The United States does have an interest in supporting our NATO allies and assuring that NATO can continue in its role guaranteeing European security. Because of World War II and because of the threat of Communist aggression from the Soviet Union, the NATO alliance was set up to provide peace and stability for the NATO nations, and this Nation has always been in the leadership of that effort. We have made the commitment to it throughout the years, and the reason we have done so is because of the failure of Europe in World War I to protect itself, in World War II to protect itself, and, I am sorry to say, that same failure we see there today. You see, very few strong European leaders are willing to come forward and say, ``We will tackle this job alone because it's on our back door.'' Now, we can be repelled by this, we can be reviled by it, we can view it with dismay and with some shock, but it is the real world out there, and, therefore, this is where the credibility of the NATO alliance comes in. The United States is critical to the success and survival of the NATO alliance. As the British Ambassador said to me 2 days ago, ``We will be there as long as the United States is. If the United States leaves, Great Britain leaves.'' Period. The end. That, to me, spoke volumes of the importance of U.S. leadership. There was no European country that could effect the peace. It took the United States of America to effect the peace. So I believe we have an interest in reaffirming our own position as the global leader of the free world and protecting that leadership and that freedom. I believe the United States has a moral interest in ending crimes against humanity. I, myself, could have been born in Eastern Europe, in Poland. I would never have been privileged to have a good life had that been the case. Well, the same circumstances are present today in Bosnia. I remember all during the 1940's, when people were saying, ``How could we not have responded?'' ``How could we not have known?'' ``How did we not know that these boxcars were traveling throughout Europe and turn a deaf ear to what was happening?'' It is moral. It is just. It is noble. We are not asked to fight a war. We are asked to give peace a chance. Thank you, Mr. President. I yield the floor. Mrs. HUTCHISON addressed the Chair.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, our flag is recognized as unique, not only in the hearts and minds of Americans, but in our laws and customs as well. No other emblem or symbol in our Nation carries with it such a specific code of conduct and protocol in its display and handling. Here are just a few sections of the Federal law: The United States flag should never be displayed with the Union down, except as a signal of dire distress or in instances of extreme danger to life or property. The United States flag should never touch anything beneath it--ground, floor, water or merchandise. The United States flag should never be dipped to any person or thing. The United States flag should never be carried horizontally, but it should always be carried aloft and free. Why then, should it be permissible conduct to urinate on, to defecate on, or to burn the flag? That is not my definition of free speech. Until the Supreme Court's decision in Texas versus Johnson in 1990, 48 of 50 States had laws preventing the burning or defacing of our Nation's flag. I do not take amending the Constitution lightly. However, when the Supreme Court issued the Johnson decision and then the Eichman decision, those who wanted to protect the flag were forced to find an alternative path. The Nation's flag is a revered object as well as a symbol. I believe that it should be viewed as such--as a revered national object, not simply as one of many vehicles for free speech. Everything about the flag in its tangible form, in its very fabric, has significance. The shape, the colors, the dimensions, and the arrangement of the patterns help make the flag what it is. The colors of the flag were chosen by the Continental Congress in the 18th century. In 1782, the Congress of the Confederation chose the same colors for the Great Seal of the United States: Red for hardiness and courage; white for purity and innocence; blue for vigilance, perseverance, and justice. If one were to change the colors, the orientation of the stripes, or the location of the field of stars, it would no longer be the American flag. What I am saying is that I believe that the physical integrity of the flag is crucial. Despite this fact, because the flag also has symbolic value, the Supreme Court has determined that physically burning or mutilating the flag does not destroy the symbol. Therefore, a prohibition on burning or mutilating the flag would not serve a ``compelling'' governmental interest and could not be justified under the first amendment. I do not agree. I believe that burning, tearing, and trampling on the object undermines the symbol. The process may be incremental, but over time the symbol erodes. The Supreme Court arguably has placed the flag in a kind of catch-22 situation. Because the flag is so important, because the flag is unique, because the flag has such powerful symbolic value, it, ironically, goes unprotected. I support Senate Joint Resolution 31 because it will return the Nation's flag to the protected status I believe it deserves. The authority for the Nation to protect its central symbol of unity was considered constitutional until 5 years ago. In the Senate Judiciary Committee's markup of Senate Joint Resolution 31, I proposed alternative legislation with more specific, narrowly tailored language. Although this was not voted on in committee, Chairman Hatch offered to work with me to see if we could develop language we could agree upon. He has now proposed the substitute amendment that I believe represents a vast improvement over the original language of Senate Joint Resolution 31. The original language would have allowed Congress, as well as each of the 50 States, to develop legislation prohibiting the desecration of the flag. In other words, each State would have been authorized to define ``flag,'' and each State would have been authorized to define ``desecration.'' The proposed substitute amendment offered earlier this afternoon would give Congress, and Congress alone, the authority to draft a statute to protect the flag. This will give Congress the opportunity to draft, carefully and deliberatively, precise statutory language that clearly defines the contours of prohibited conduct, something along the lines of the language I offered in committee. It would allow Congress to establish a uniform definition for ``flag of the United States,'' rather than allowing for 50 separate State definitions. Because we are protecting our national symbol, it makes sense to me that Members of Congress, representing the Nation as a whole, should craft the statute protecting our flag. Let me add that, from a first amendment perspective, a specific constitutional amendment prohibiting flag burning may be preferable to a statute. Harvard Law Prof. Frank Michelman made this point in a 1990 article, ``Saving Old Glory: On Constitutional Iconography.'' Although not himself an advocate of flag protective prohibitions, Professor Michelman argued that a specifically worded constitutional amendment related to flag burning could be preferable to a statute, posing fewer potential conflicts with the first amendment. An amendment pertaining exclusively to the flag would have little risk of affecting other kinds of expressive conduct. The premise of his argument is that, when the Constitution is amended, Supreme Court review is not required. By contrast, a statute, if challenged, could only survive if the Supreme Court ultimately determined it to be constitutional. In other words, the Court would need to justify that the statute conformed to existing freedom-of-expression doctrine. In so doing, the Court arguably would need to develop a rationale that could ultimately serve to justify prohibitions on other kinds of symbolic expression. So, I believe that those who say we are making a choice between trampling on the flag and trampling on the first amendment are creating an unfair dichotomy. Protecting the flag will not prevent people from expressing their ideas through other means, in the strongest possible terms. Furthermore, the right to free speech is not unrestricted. For example, the Government can prohibit speech that threatens to cause imminent tangible harm, including face-to-face ``fighting words,'' incitement to violation of law, or shouting ``fire'' in a crowded theater. Obscenity and false advertising are not protected under the first amendment, and indecency over the broadcast media can be limited to certain times of day. Ever since Justice Brennan's 1964 decision in New York Times versus Sullivan, statements criticizing official conduct of a public official may be sanctioned if they are known to be false and if they damage the reputation of the official. There is much that is open to debate about the proper parameters of free speech. In voting for this legislation, however, I extend a cautionary note. This amendment should not be viewed as a precedent for a host of new constitutional amendments on a limitless variety of subjects. The Constitution was designed to endure throughout the ages, and for that reason it should not be amended to accommodate the myriad of issues of the day. My support of a constitutional amendment to protect the flag reflects the gravity of my belief in the purpose. I recognize that by supporting a constitutional amendment to protect the flag, I am choosing a different course from many Democrats in Congress and, quite frankly, from many of my close friends for whom I have the greatest respect. But my support for this amendment reflects my broader belief that the time has come for the Nation to begin a major debate on values. I believe that this country must look at itself in the mirror and come to terms with those values. I do not wish to imply that one set of values is necessarily superior to another. But we cannot keep pressing the envelope and still remain a functional society. We need to ask ourselves what we hold dear--Is there anything we will not cast contempt upon? We need to ask ourselves: How can we foster respect for tradition as well as for ideological and cultural diversity? How can we foster community as well as individuality, nationhood as well as internationalism? These are all important values, and we have to learn to reconcile them. We must not jettison one at the expense of another. The Framers of the Constitution recognized two important elements of our constitutional tradition: a liberty element and a responsibility element. Without responsibility, without a rule of law, there could be no protection of life, limb, or property--there could be no lasting liberty. I believe there is a danger of moving too far in either direction--toward too restrictive order, or toward unlimited individual liberty. In this instance, I believe we cannot tilt the scales entirely in favor of individual rights, when there exists a vast community of people in this country who have gone to war for our flag. And there are mothers and fathers and wives and children who have received a knock at their front door and have been told that their son, or husband, or father had died alone, in a trench. They were given a flag on this occasion, a flag which helps preserve the memory of their loved one, and which speaks to his or her courage. Last June, the Senate Judiciary Committee heard testimony from Rose Lee of the Gold Star Wives of America, an organization representing 10,000 widows of American servicemen. This is what she said: The flag, my flag, our flag . . . means something different to each and every American. But to the Gold Star Wives, it has the most personal of meanings. Twenty-three years ago this American flag covered the casket of my husband, Chew-Mon Lee, United States Army. . . Every Gold Star Wife has a flag like this one, folded neatly in a triangle and kept in a special place . . . My husband defended this flag during his life . . . [b]urning the flag is . . . a slap in the face of every widow who has a flag just like mine. Requiring certain individuals to refrain from defacing or burning the flag, I believe, is a small price to pay on behalf of the millions of Americans for whom the flag has deep personal significance. Just 5 years ago, when 48 States had laws against flag burning, the first amendment continued to thrive. I believe that this legislation will protect the integrity of the flag while keeping our first amendment jurisprudence intact. I urge my colleagues to support it. I thank the Chair and yield the floor. Mr. LEAHY addressed the Chair.

Mrs. FEINSTEIN. I thank the Chair. Mr. President, I think you have heard some very eloquent words from the senior Senator from Massachusetts. I respect him greatly. I respect the words he said. I think what this proves is that there is no lack of patriotism on either side of this debate. Patriotism and love of country are equally as strong for those of us on each side of this debate. I support a constitutional amendment to restore protection to our national flag. I do so not in deference to political expediency, but because I believe it is the right thing to do. And I have believed this for a long time. Today I have an opportunity to say why. Our national flag has come to hold a unique position in our society as the most important and universally recognized symbol that unites us as a nation. No other symbol crosses the political, cultural, and ideological patchwork that makes up this great Nation and binds us as a whole. The evolution of the American flag as the preeminent symbol of our national consciousness is as old and as rich as the evolution of our country itself. I will never forget the emotion I felt as a child when I saw that famous photograph by photographer Joe Rosenthal--a photograph of the soldiers raising the American flag at Iwo Jima--capturing in one moment in time, the strength and the determination of this entire Nation. The unique status of the national flag has been supported by constitutional scholars as diverse as Chief Justices William Rehnquist and Earl Warren, and Justices John Paul Stevens and Hugo Black. The flag flies proudly over official buildings, and many Americans fly them at their homes. I happen to be one of them. Our history books are replete with the stories of soldiers, beginning with the Civil War, who were charged with the responsibility of leading their units into battle by carrying the flag. To them it was more than a task--it was an honor worth dying for, and many did. When one soldier would fall, another would take his place, raise the flag, and press forward. They would not fail. Their mission was too important; the honor too great; flag and country too respected to give anything short of their lives to succeed. (Mr. GRAMS assumed the chair.)

Mrs. FEINSTEIN. Yes.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Congress should not and must not repeal the assault weapons ban. I thank the forbearance of the Chair. Mr. CRAIG addressed the Chair.

Mrs. FEINSTEIN. I ask unanimous consent that a list of law enforcement leaders supporting the need for this legislation be printed in the Record.

Mrs. FEINSTEIN. Mr. President, it would appear that the leadership of the other House is threatening to repeal the ban on military-style assault weapons. They promised to hold a vote before the end of the year. According to information from the Speaker's staff, he is apparently hoping to sneak the repeal through the House of Representatives in the rush to finish business before the Christmas holiday. Although this may work in the House, it will not work in the Senate. I wrote this legislation. It was incorporated into the 1994 crime bill. It was passed by both the House and the Senate after substantive and prolonged debate. It has been in place for just 14 months. It passed with bipartisan support. It is my commitment, if this comes to the floor of the Senate, to wage the mother of all filibusters, to keep the Senate in session throughout the holiday break, if necessary, if the attempts to repeal this legislation move forward. This legislation specifically protects legitimate weapons used for hunting and recreational purposes. Congress can either side with the citizens of this country who are overwhelming in number who want assault weapons off their streets or they can side with the National Rifle Association whose selfish ``I want it my way'' persists no matter what. The choice should be clear to all of us. For the purpose of those who are new to the Congress and for those who may have forgotten some of the facts brought out in the debate in the last session, allow me to summarize why this legislation is so important. First, removing military-style semiautomatic assault weapons has the widespread support of our citizens. A Los Angeles Times national poll conducted between October 27 and October 30 of this year showed that 72 percent of the American people support maintaining the ban on assault weapons. There is bipartisan support for this legislation. Presidents Reagan, Carter, Ford, and Clinton endorsed this legislation during its debate in 1993. Republican and Democratic elected officials from around the country endorsed it, including Republican mayors Rudolph Giuliani of New York and Richard Riordan of Los Angeles. Every major law enforcement group in this Nation, groups of both rank and file and law enforcement management, oppose the repeal. And groups representing 90 million Americans have endorsed the ban on assault weapons. These include physicians who have seen what assault weapons do to human flesh, educators who live daily with the militarization of our schools, clergy who counsel the victims, victims who have seen their loved ones torn apart, trauma physicians whose emergency rooms look like military hospitals, and a strong majority of the American people who say ``enough is enough'' in this gun-happy country. My home State of California knows all too well the tragedy of assault weapons. There are incidents that really led to my resolve to make this the main priority of my legislative agenda in 1993, and I want to go through them. In 1984, in California, a man by the name of James Huberty walked into a McDonald's in San Ysidro with an Uzi. He killed 21 people including 5 children; 19 were wounded. In 1989, an unstable drifter, with a weapon modeled after an AK 47, walked into a Stockton schoolyard and, for no reason, fired 106 rounds. Five children were killed, 29 were injured. Then on July 1, 1993--and this did it for me--a lone gunman carrying two Intratec TEC DC-9 semiautomatic weapons, a pistol and 500 rounds of 9 millimeter ammunition walked into the Pettit & Martin law firm on the 33d floor of 101 California Street, a Heinz-designed high rise in the middle of downtown San Francisco. He opened fire. Eight people died, six were wounded. This is the specific action which galvanized it for me. I think the American people need to know a little bit more about it and how this happens. These were the weapons he carried. These are the 50-round clips, the 30-round clips he carried, and so on. This is the gentleman--this is Gian Luigi Ferri. He did not buy these weapons in California because California had a law. He went across the border to Nevada and bought them. He died on the stairwell of this building. He was only stopped when he was trapped in the stairwell between floors after an employee pulled the fire alarm and that locked all the doors so he could not escape. This is what Pettit & Martin looked like. These are the shattered windows of the office, the bullet holes through the windows-- indiscriminate shooting. And then we get to the victims. These are a few of the people who died that day. Specifically, Jody Jones-Sposado, 30 years old. She was the first victim killed by Ferri. She worked part time at a Lafayette, CA, company which organizes corporate conferences. She was just visiting 101 California Street on July 1 to file a deposition. She was shot five times. She left a husband, Steve Sposado and a 9-month-old child at the time by the name of Meghan. Both Steve and Meghan came back numerous times to testify on behalf of this legislation. This is a young attorney, Jack Berman, 35 years old. He was representing Judy Sposado, who lies next to him in the photo, when he was killed by Ferri. He was a young labor lawyer. He was preparing for his first trial. He was about to celebrate his third wedding anniversary with his wife Carol just 1 month later. The two have a baby boy. This below is Mike Merrill, whose wife and children I have had the pleasure of meeting. Mike was a vice president of the Trust Co. of the West. He was shot through the glass of his window as he sat at his desk. You can see his cup of coffee. You can see his computer is still on. Ferri, though, shot him. Mike crawled under his desk, and Ferri returned, shot through the desk and killed him. Mike's wife Marilyn and two children, Kristin, 5, and Michael, 3, now reside in Alamo, CA, in the dream house that Mike helped to design. Now you know why I feel so strongly about this legislation. There is a reason why so many, from so many walks of life, have stepped forward to lend their support for this legislation. Our police officers, our children, our family members, are being gunned down by revenge killers, drug dealers, gang members, carrying military-style assault weapons. No question about it. The AK 47 is the gun of choice among gang members. They are killed on street corners, in high rise office buildings, in front of shopping malls, in fast food restaurants. In the last 15 years, in Los Angeles, 9,000 people have died as a result of gangs--9,000 people. Here are a few facts. According to a search of newspapers throughout the country conducted by my office, in the last 7 months, since it was rumored that the House would try to repeal the assault weapons ban, there have been 76 incidents involving assault weapons in 25 States in which 37 adults were killed, 40 were wounded, 7 children were killed, and 6 were wounded; 9 police officers were killed including 1 FBI agent, and another 3 were wounded. The assault weapon is also the gun of choice if you are going to go up against a police officer. If he is carrying a six-shot .38, he does not have a chance. In both California and throughout the Nation we are seeing police officers outgunned. Here the assault weapon again gives the edge to the perpetrator. No incident better conveys the danger of being a police officer than what happened on November 13, 1994, in San Francisco. This is James Guelff, a 38-year-old San Francisco police officer, an outstanding police officer, often the first to the scene of a crime. I attended his funeral. He had received a call that there was a man with a gun at an intersection. He raced in this squad car to the intersection. He was armed with a six-shot service revolver. The gunman that he faced at the intersection had more ammunition than the entire compliment of 104 police officers that eventually came to the scene to try to stop him. The only way he was stopped--because he was clad in a Kevlar vest and a Kevlar hat--was because of the angle of the bullet that was able to penetrate him and eventually kill him. I want to read a statement written about this by the commander, Richard Cairns, the captain of police, regarding this incident: I implore you to do all in your power to stop this attack on the legislation that will save police officers' lives in our country. I am not a person that can be described as an ``antigun'' fanatic. To the contrary, I am a person who believes in the right to bear arms but we do not need assault weapons that are strictly people killers. I have seen firsthand the damage these weapons can inflict, as a 20-year-old soldier in Vietnam . . ., to seeing too many shooting victims on our streets as a San Francisco police officer for 25 years . . ., myself being a shooting victim of a barricaded suspect . . ., and witnessing firsthand the carnage at 101 California and finally, holding Officer James Guelff in my arms trying to keep him alive after he was shot at Pine and Franklin Streets. I must say that I am an outdoorsman, a hunter, I enjoy my trips to the mountains to carry on the great heritage of hunting and camping. But you will find no Uzi's, TEC-9's, AK- 47's, or other such weapons of war in my house. In February 1995, a rookie police officer by the name of Christy Lynne Hamilton, a 45-year-old mother of two, just 4 days on the job-- she had been voted the rookie of her class--was gunned down by a 17- year-old boy armed with an AR-15 assault weapon. On March 28, 1995, Capt. James Lutz, a 30-year veteran of the Waukesha, WI, Police Department died in a hail of bullets from a Springfield M1-A assault rifle when he intercepted two fleeing bank robbers. In November of that same year in Washington, DC, an angry young man armed with the same TEC-9 assault pistol took the elevator to the third floor of the Metropolitan Police Department where he shot and killed three police officers. On March 8, 1995, in Chicago, a rookie police officer, Daniel Doffyn, was killed by a known gang member armed with a TEC-9 assault pistol. On April 26, 1995, in Prince Georges County, MD, officer John Novabilski was working at a local convenience store as an off-duty uniformed security guard when an assailant armed with a MAC-11 assault pistol shot him 10 times. These and other senseless deaths are chronicled in a report entitled ``Cops Under Fire,'' prepared by Handgun Control, Inc. This chart, first of all, shows the number of law enforcement officers killed with assault weapons or guns sold with high-capacity magazines from January 1, 1994, to September 30, 1995. If you look at this, you will see, of all the weapons traced, 36 percent were with assault weapons or firearms with high-capacity magazines. Mr. President, 36 percent of the officers killed since January 1, 1994 have been with assault weapons. You cannot tell me this legislation will not make a difference. The report also makes it clear, and this is very interesting, that the bad guys know how to find these weapons. A 1991 survey of 835 inmates in 4 States--these are inmates now--found that 35 percent of them reported owning a military-style or semiautomatic rifle, and 53 percent of them who were affiliated with gangs reported owning a military-style weapon. That is 53 percent of gang-oriented inmates in prisons in four States. That should tell us a lot about how these weapons are used on the streets. Let me for a moment describe what this legislation actually did and did not do. The law stopped the future manufacture of 19 specific kinds of military-style semiautomatic assault weapons. They looked like this. Also, the copycat versions of those weapons. The law specifically protected 670 guns that have legitimate hunting and recreational purposes. Each one is listed. It stopped the future manufacture of large-capacity ammunition feeding devices that hold more than 10 rounds. In my view, that is the most important thing. If you have a five-shot revolver, when the individual reloads, you have a chance to get to him and disarm him. If you are carrying 50 rounds in a semiautomatic military-style assault weapon, you have no chance. Someone could enter this Chamber and wipe out 50 people and you could not get to him to disarm him. In addition, the legislation grandfathered assault weapons manufactured prior to the law's enactment. It exempted sales for law enforcement purposes, it required a study by the Attorney General and it sunsets after 10 years. So, as you can see, it is moderate, it is reasonably drawn and it is a fair effort. If I had my way, I would ban the possession of assault weapons anywhere in the United States of America, but there were not going to be the votes for that. This is a moderate law. There is also evidence that the ban is working. Similar State laws, which have been in place longer, are showing signs of success. In Maryland, the ban on assault pistols and high-capacity magazines of more than 20 rounds led to a 55-percent drop in assault pistols recovered by the Baltimore Police Department. In Connecticut, the chief of police of Bridgeport has credited the State assault weapons law with reducing assaults with firearms by 30 percent. Nationally now, this legislation has only been in effect for 14 months, but we are beginning to see a decrease in the use of assault weapons. In 1993, the year before the ban went into effect, just 19 specifically named assault weapons accounted for 8.2 percent of all traces. In 1994, the year in which the ban became effective, these traces for these 19 weapons fell to 6.3 percent. And since the ban became effective on September 13, 1994, through the end of last month, the share of traces represented by all assault weapons fell to 4.3 percent. Thus, we have seen a decrease in the likelihood that criminals will obtain one of these weapons, and one of the very real reasons for that is that the price is going up because of the shortage of the weapons. So they are not as easy for a criminal to obtain. The use of these guns to kill police officers has also been decreasing. In 1994, when the law was not in effect for most of the year, the Handgun Control study found that assault weapons accounted for 41 percent of police gun deaths where the make and model of the weapon were known. In 1995, this proportion has fallen to 28.6 percent, a 30-percent decrease. So cop killings with these weapons are down. Criminals have not switched from killing police with assault weapons to killing them with other guns. Police deaths from guns in 1995 are running 16.5 percent below the 1994 pace. Yet, despite the hard facts, despite the sound reasoning, despite 72 percent of the American people wanting to sustain this ban, here we are once again waging the same battle. I am really amazed, and I have to ask people: What hunter needs an assault weapon to kill a duck when most States limit the number of bullets in a clip to three? What hunter needs an assault weapon to kill a deer when most States limit the number of bullets in a clip to seven, and I think only one does 10? What target shooter needs a weapon of war to enjoy the sport? Indeed, who besides drug dealers and hit men, revenge seekers and lustkillers find any utility in weapons intended to kill as many people as possible as quickly as possible? And how on Earth can we turn our backs on law enforcement's leadership and rank and file throughout this country? So I urge every American to join this crusade. We must prevail. If the issue is raised in the Senate, I promise that the reasons to preserve this legislation will be exhaustively detailed for the Record time and time again. I promise that the stories of every victim of an assault weapon shooting that we can find will be told on this floor and that the horror that these weapons are bringing to our streets are made known. In conclusion, I ask unanimous consent that some personal statements from family members who have lost loved ones to assault weapons gunfire be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I thank the Chair.

Mrs. FEINSTEIN. Thank you.

Mrs. FEINSTEIN. Mr. President, I ask to speak in morning business for 20 minutes.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I ask for the yeas and nays.

Mrs. FEINSTEIN. I yield the remainder of my time to the junior Senator from Illinois.

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the following be added as cosponsors: Senator Boxer, Senator Simon, Senator Moseley-Braun, and Senator Bryan.

Mrs. FEINSTEIN. I thank the Senator. I yield the time.

Mrs. FEINSTEIN. Mr. President, I want to make clear that this amendment is presented as a substitute. I am pleased it was read because it makes clear the following: First, that it is the sense of the Senate that Congress should not criminalize a medical procedure. Second, that nothing in Federal law should be construed to prohibit the States, local governments, local health departments, medical societies, or hospital ethical boards from regulating, restricting, or prohibiting postviability abortions to the extent permitted by the U.S. Constitution. The U.S. Congress is not the appropriate place to be making decisions about medical procedures, whatever they are. The bill before us would criminalize one procedure, a procedure that does not appear in medical literature, a procedure that is worded vaguely. All I ask is that the Members of this body read the actual legislation. Many Members who have spoken in favor of the legislation point to the use of scissors, the cutting of tissue, the draining of fluid from the brain. Nowhere does the legislation itself specifically refer to that kind of procedure. In its very vagueness, it affects more than one procedure and it can affect more than postviability abortions. So, my point is twofold. One, that this body is not the appropriate place to be making medical decisions and that, two, under current Federal law, States can choose to regulate, restrict, or prohibit postviability abortions as 41 do now. When physicians make a decision to use a particular treatment, they very thoroughly evaluate a number of factors: evidence from scientific literature, the risks and benefits for the patient--for example, possible side effects--future health, quality of life, the efficacy of the treatment--what the outcome will be--the safety of the treatment, the patient's preferences. These are often complicated decisions, representing a systematic strategy developing from multiple decisional building blocks. Medical decisionmaking is not simple and these are not decisions we should or can make. We should also understand that medical decisionmaking is individualized. Every case is different. Every human body is different. Every patient brings a unique medical history into the doctor's office. Physicians have to evaluate every situation as it presents itself and often at the last minute. The risks of a particular procedure depend, often, on the patient. For example, a hip replacement that restores function in one patient can be life-threatening to another, for example, to one who has heart disease. Medical science and treatments are constantly evolving. Medicine is becoming increasingly specialized. Technology is advancing. Today's standard of practice can be out of date in 5 years. The human body will always have some degree of mystery, as science stretches to understand how the body works and does not work. Congress cannot keep up with these changes. That is not our job. Mr. President, physicians go to college for 4 years, to medical school for 4 years, to residency training for 3 to 6 years. In some States, to keep their licenses current, they are required to undergo continuing education annually. They get extensive training. Medical decisionmaking, I believe, is a job for trained physicians. an example of decisionmaking: medical practice guidelines For almost 60 years, the medical profession in this country has been developing medical practice guidelines. According to the Institute of Medicine, clinical practice guidelines are ``systematically developed statement to assist practitioner and patient decisions about appropriate health care for a specific clinical circumstances.'' They are guidelines--guidance--not enforceable rules. There are over 24,000 developed by over 75 organizations. Medical practice guidelines are designed to improve patient outcomes. They help medical practitioners and patients make decisions about prevention, diagnosis and treatment of specific clinical conditions. For example, guidelines have been developed for the treatment of benign prostatic hyperplasia, pressure ulcers, and stroke rehabilitation. Developing practice guidelines is a complicated process. To develop a guideline, panels of experts are convened. They review all available literature, all available evidence of patient outcomes, a review that can take up to 9 months. They are subjected to peer review for scientific validity and pilot testing. Development of one guideline can take from 1\1/2\ to 3\1/2\ years. The point here is that there is an orderly, scientific, deliberative, professional, and balanced approach for making medical decisions. It is complicated. It is based on the patient's best interest. Medical decisionmaking is not and should not be a legislative or political process. unprecedented Congress has legislated medical benefits, reimbursement policies, quality standards, training requirements. But Congress has never banned or criminalized a specific medical procedure. This is the first time Congress has tried to outlaw a medical procedure. My amendment is quite simple. It says, in essence, that Congress should not be making medical decisions and that States can regulate post-viability abortions. I can go on, but in the interest of time, and giving my cosponsors the opportunity to speak, I want to just say one other thing. I have followed this debate very carefully. I want particularly to commend my friend and colleague, the junior Senator from California. I think she has been quite eloquent in defining what this procedure is, and what this procedure is not, the enormous vagueness of the bill and the human tragedies involved. Post-viability abortions can be banned by every State and 41 have chosen to do so. This legislation is not necessary. This legislation puts the Congress in the position of deciding medical procedures, and I do not believe we can or should do this. This substitute amendment clearly states what I believe is right. Mr. President, I yield 10 minutes to the Senator from Wyoming.

Mrs. FEINSTEIN. Mr. President, I send an amendment to the desk for Senator Simpson and myself and ask for its immediate consideration.

Mrs. FEINSTEIN. Mr. President, how much time remains?

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I thank the Senator. I think what is one man's pork is another person's beef. I remember on the floor of this body, when the crime bill was first considered, the wonderful porker that the Senator from New York had drawn on a chart and had before this body. The contention was that the crime bill, and this particular aspect of it, was a porker. I want to say, it has turned out to be the beef of the crime bill. There is no question in my mind that the community policing part of the crime bill is the most popular part of the crime bill out there. ``If it isn't broke, don't fix it.'' The fact of the matter is, in my State, crime rates are going down in all of the jurisdictions because of the community policing aspect of this bill. So I am very disappointed--there are good things in this bill--but I am very disappointed by the fact that we take the discretionary aspect out of the community policing bill, make it a block grant program, give it to the local jurisdictions, but enable those local jurisdictions to use it for whatever they want to use it. They can use it for new squad cars. They can use it for some aspects, I gather, of police stations. They can use it for desk sergeants, if they want to. That defeats the purpose of the community policing aspect of this bill. What is that purpose? The purpose is really to show that a police force in a crime-troubled area with trained community police officers who know the communities and know the difference between the bad guys and the good guys are going to be more effective in making good arrests and, secondly, in retarding crime in that area. To date, the crime bill has targeted about $8.4 billion directly to States and localities. This program, as I said, is working. According to the Department of Justice, California has received sufficient funding to support the hiring or redeployment of 3,900 police officers from the crime bill COPS program. This is not pork. This is beef. These funds have gone to the larger and most troubled crime-plagued cities: Los Angeles, San Jose, San Francisco, San Diego, and, most recently, Oakland. As a matter of fact, beginning in March of next year, the Los Angeles Police Academy will be graduating 100 officers a month for 6 months, funded through the community policing aspects of this bill. Additionally, community policing funds have gone to smaller California cities--Selma, Victorville, Santa Cruz, Ojai, and Millbrae. It is no coincidence, then, that the crime rate in California's biggest cities dropped by 7 percent during the first 6 months of this year, compared to the same period last year, with double-digit decreases--double digit, that is more than 10 percent--in homicide, in rape and in robbery. California's Attorney General, Dan Lungren--a Republican, by the way--credited the intensified use of community-oriented policing by local police departments for this drop in crime. Attorney General Lungren said of community-oriented policing, and I quote: ``It should be utilized in every part of the State.'' I could not agree more. So the COPS Program is working. ``If it ain't broke, don't fix it.'' It is putting cops on the streets. It is reducing crime. Second, my other concern with this bill is the drug courts. In America, we constantly have the debate: Do you fight drugs on the supply side or do you fight them on the demand side? I know, as a mayor for 9 years, that you have to do both and you have to do it well. America has never fought drugs equally on the supply side and the demand side. This crime bill was the first time that more moneys were put in for prevention and for rehabilitation to almost equal the amount for interdiction and enforcement. Drug courts were a relatively new aspect. About $1 billion dedicated to drug court programs over the next 6 years is eliminated in this conference report. That is a mistake. A study by the California Department of Alcohol and Drug Programs found that for every $1 spent on treatment for alcohol or drug abuse, $7 in savings is accrued. There are now evaluations coming out of drug courts. We are finding--surprise of all kinds--they are working. ``An Evaluation of the Oakland Drug Court After Three Years,'' by Judge Jeffrey Tauber of the Oakland-Piedmont-Emeryville Municipal Court, found the following results, which I quote: The data collected supports the conclusion that the imposition of an immediate and intensive supervision and treatment program substantially reduces the rate of felony recidivism during a 3-year period following arraignment. It is estimated that there were 44 percent fewer felony arrests-- That is 582 fewer felony arrests-- for offenders in what is called the FIRST Program--fast, intensive, report, supervision and treatment--than under the previous program. California is expected to receive an estimated $119 million for drug courts, or enough for about 59,500 offenders over the next 6 years. By eliminating this program, this bill will deprive States of a tough program to get and keep nonviolent offenders off drugs and to unclog our courts of violators who would otherwise walk. Another problem I have with the bill is the cuts in the Commerce programs. I come from a State where 1.2 million people are out of work. The unemployment rate currently exceeds 7.8 percent. It exceeds the national rate by 2 points. This bill cuts EDA, which is the last remaining economic tool provided by the Federal Government since programs were developed in the 1970's to help cities. The program that is cut targets the defense conversion support. In my State, to cut defense conversion and its ability is to put people out of work, plain and simple. The bill also eliminates funding for the Advanced Technology Program which assists firms with new technology to provide new breakthrough products and processes. One of the things that California was assured, having gone through more than 30 base closures, with between 500,000 and 1 million people who have lost their jobs so far because of defense downsizing, is that there would be an adequate program of defense conversion to help industries convert into nondefense pursuits. And now we find that these funds will be cut off by this bill as well. It is unfortunate. Let me conclude by saying, community police have reduced crime. Community policing works. The crime bill has worked. It is not pork; it is where the beef is. I thank the Chair. I yield the floor, and I yield back the remainder of my time.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I have asked my staff in California to begin to monitor air traffic control failures. They have started with the San Francisco Bay area, and I would like to make a report this morning on what they have found in the last 5 months. The San Francisco Bay area is essentially controlled out of Oakland where nearly 18 million square miles of airspace is under control by air traffic controllers. Next week I would like to make a report on Los Angeles. I sent this in writing to the Secretary of Transportation. But I believe the findings of the last 5 months really deserve to be printed in the Congressional Record and deserve the attention of the U.S. Senate because I think air passengers are very much at risk today. I am unconvinced that the situation is being looked at with the urgency it demands, and my great fear is that it is going to take a major human tragedy to really get the kind of attention the situation needs. This morning I want to urge the FAA to make the acquisition of new and reliable equipment its highest priority. In the past, the FAA has resisted incremental improvements in the Nation's air traffic control system in favor of huge changes that never materialize. This leaves centers across the United States that are operated by mainframe computers and vacuum tubes that are over 25 years old. The irony here is that the air equipment, the planes in the air, are new. The system that controls their safety is old and failing. Backup systems are being used more and more frequently, and in some cases the backup is no more reliable than the equipment it is replacing. The following is a summary of incidents of equipment failure in the San Francisco Bay area since August of this year. Let me begin with August 8, 1995. The Bay TRACON system located at the Oakland airport, controlling the entire bay area airspace at below 15,000 feet, experienced partial radar failure for 3 to 5 minutes before reliable radar data was displayed on controller scopes. The next day, August 9, 1995, the air traffic control center at Oakland located in Fremont, covering 18.3 million miles of airspace, suffered a total failure of radar, radio, and landline communications, including backup systems. Radar remained out for 34 minutes. Radios and landlines were out for [[Page S 18118]] 21 minutes. There were 295 airplanes airborne under Oakland's ARTCC's control at the time of the outage. A few weeks later, August 22, a power failure at Bay TRACON disabled Oakland's radar system again. Backup radar provided only 85 percent coverage and took 3 to 5 minutes to come on line. And 3 days later, August 25, 1995, a dual sensor problem disabled Bay TRACON's Oakland radar system. September 6, the controllers lose power to voice and computer data lines at Oakland ARTCC used to control and track aircraft over the Pacific Ocean. The next day, September 7, 1995, the main and backup power supply fails at Oakland ARTCC. Power is not restored in time to preserve the data base in the oceanic computer known as ODAPS. Controllers rebuild the data base manually when the computer power is returned. The shutdown lasted 4 hours. A few days later, September 13, 1995, the Bay TRACON's Oakland radar failed three times when a 26-year-old microwave link malfunctioned. The first failure lasted 32 minutes. The second failure lasted 81 minutes. And the third failure lasted for hours. Two weeks later, September 25, 1995, an internal power failure at Bay TRACON disabled so-called noncritical systems and caused air- conditioners to go out. Controllers were exposed to 90-degree heat in the control room, computers overheated and failed due to the extreme temperature increase. October 1, 1995, a power surge at Moffett Field caused a radar site to switch to engine generators. While repairs were being made the next day, the bay area was without a backup system for 7 hours. October 27, 1995, during the morning inbound rush and foggy conditions, the Bay TRACON computer froze and caused controllers to perform automated functions manually. November 3, 1995, faulty computer connections forced air traffic controllers in Fremont to track aircraft with a backup system for nearly 48 hours. November 28, just a few days ago, airport surveillance radar at the Oakland airport goes down for an hour. Needless to say, it is a miracle that no collisions have occurred. This is the fourth busiest airspace in the Nation. The situation and the growing frequency of outages across the United States are simply disasters waiting to happen. These examples from the San Francisco Bay area are symptomatic of a nationwide problem. At a time when the private sector is building the most advanced airplanes in the world, the FAA is still using equipment that is over a quarter of a century old. I realize that resources are an issue. Yet the airport and airways trust fund which funds the FAA has an annual budget of $12 billion a year. I cannot stress enough the importance of this money translating into new equipment for air traffic control centers across the country. We cannot continue to function with a system that often fails and leaves the safety of airline passengers in question. These equipment outages, along with a recent Los Angeles Times report of equipment falling off old aircraft and very nearly landing on human beings, has me very worried about public safety. What concerns me more than these dangers, however, is the FAA's assessment that no lives are at risk. Given the above list of outages along with reports of equipment nearly killing people as it falls from the sky, I find this extremely difficult to believe. Some action must be taken. It has been suggested that the FAA could operate more effectively if removed from the Department of Transportation. I am not certain if that is the answer, but it is obvious to me that some dramatic improvements must be made in order to ensure the safety of the flying public. I would like to offer any necessary and appropriate assistance to facilitate a change in the priorities of the Federal Aviation Administration. I look forward to working with my colleagues toward a solution to this increasingly alarming situation. Next week I hope to come before the Senate to discuss similar incidents at Los Angeles International Airport. I yield the floor. PRESIDING OFFICER. The Senator's time has expired.

Mrs. FEINSTEIN. I thank the Chair. Mr. CRAIG addressed the Chair.

Mrs. FEINSTEIN

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

Mrs. FEINSTEIN. Mr. President, thank you very much.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today in support of H.R. 660, the Housing for Older Persons Act of 1995. The main thrust of this legislation is to remove the requirement for significant facilities at 55-and-over communities. This has been a major issue in California, particularly in the Inland Empire area including Riverside and San Bernardino Counties, which have traditionally been retirement communities catering to all income levels of seniors--from low-income mobile home parks to lavishly planned, full service retirement communities. One only has to drive along Interstate 10, from Los Angeles to Phoenix, to see the many billboards advertising these retirement communities. Previously, these 55-and-over communities have been known as adults only communities. However, during consideration of the Fair Housing Amendments of 1988, in an attempt to combat discrimination against families with children, adults only communities were called into question. In turn, Congress decided to preserve adults only communities, which previously housed seniors, with the new designation of ``55-and-over.'' One of the requirements for this designation was that communities must have ``significant facilities'' in order to qualify. The Department of Housing and Urban Development did not develop rules for ``significant facilities,'' however, until 1991. Unfortunately, these rules proved to be very controversial and resulted in several expensive law suits being brought by HUD against the very communities Congress had intended to protect. The most controversial point had to do with the definition and differing interpretations by the courts and HUD as to what constituted ``significant facilities.'' Did it mean that there had to be a 24-hour, on-site medical facility, for example, or, could shuffleboard or other planned activities suffice? Last year, due partially to concerns expressed by my office, former Department of Housing and Urban Development Assistant Secretary for Fair Housing and Equal Opportunity Roberta Achtenberg conducted hearings around the country, including one in San Bernardino County. From what I understand, communities were pleased with the outcomes of the hearings, and eventually, HUD developed new rules which lessened the definition of ``significant facilities.'' Still, cities have been anxious for Congress to adopt H.R. 660, to permanently eliminate the ``significant facilities'' requirement. Take for example, in my state of California, the city of Hemet. In the city of Hemet, 50 percent of its housing is 55-and-over communities. Removing the seniors-only status and requiring these communities to absorb families with children will result in a dramatic shortage of classroom space, and the tax-base. Demographics are such that the financing of new school construction, in a city that was planned as a retirement community, would not be possible. Adoption of H.R. 660 will preserve existing 55-and-over communities, and will clarify, once and for all, congressional intent with respect to protecting senior housing in retirement communities. [[Page S 18067]] Although discrimination against families with children should not be tolerated, when a community has been planned specifically as a retirement community, and at least 80 percent of its residences house senior citizens, as this bill requires, then I believe those communities should have a right to be preserved as senior housing.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, as everyone knows, about a week ago the Judiciary Committee held hearings on this so-called partial-birth abortion legislation. I wanted to speak today on what I learned from the hearings and my reasons for opposing this bill. Let me summarize those reasons up front, and then go into each one specifically. First, I believe that this bill attempts to ban a specific medical procedure which is called, in this bill, a ``partial-birth abortion,'' but there is no medical definition for what a ``partial-birth abortion'' is. Second, the language in the bill is so vague that I believe it will affect more than any one single medical procedure. Third, the bill presumes guilt on the part of the doctor, so that every physician may have to prove that in fact he did not perform this procedure, or justify his reasons for so doing if he did. This bill could be an unnecessary, I think an unconscionable complication to families who face many tragic circumstances involving severely deformed fetuses. I also believe it is an unnecessary Federal regulation, since 41 States have already outlawed post-viability abortions, except to save a woman's life or health. Finally, I hope to make a case that this bill is very carefully crafted to provide a direct challenge to Roe versus Wade. First and foremost, this legislation claims to outlaw a medical procedure called a partial-birth abortion. As I said, this medical term does not, in fact, exist. It does not appear in medical textbooks. It does not appear in medical records. The medical doctors who testified before the Senate Judiciary Committee 2 weeks ago could not identify, with any degree of certainty or consistency, what medical procedure this legislation refers to. I would like to read some of the responses to my question in the committee, when I asked these doctors what a partial birth abortion is. Dr. Pamela Smith, director of ob/gyn medical education at Mt. Sinai Hospital in Chicago, said it was ``* * * a perversion of a breech extraction.'' Dr. Nancy Romer, a practicing ob/gyn and assistant professor at Wright State University School of Medicine, said it is ``a dilation and extraction, distinguished from dismemberment-type D&Es.'' Dr. Norig Ellison, President of the American Society of Anesthesiologists, who was at the hearing to represent anesthesiologists who supposedly participate in these procedures, said, ``I pass on that one. I am as confused as you are.'' And, Dr. Mary Campbell, medical director of planned parenthood of Washington, defined it as ``* * * a procedure in which any part of the fetus emerges from the cervix before the fetus has been documented to be dead.'' Others have said it is an ``intact dilation and evacuation,'' or a ``total breech extraction.'' I asked Dr. David Grimes of the University of California at San Francisco this same question, and he put it in writing. First, the term being used by abortion opponents, ``partial-birth abortion,'' is not a medical term. It is not found in any medical dictionary or gynecology text. It was coined to inflame, rather than to illuminate. It lacks a definition. As I understand the term, opponents of abortion are using this phrase to describe one variant of the dilation and evacuation procedure, known as a D&E, which is the dominant method of second trimester abortion in the United States. Second trimester abortion. If one does not use the D&E, the alternative methods of abortion after 12 weeks gestation are total birth abortion-- labor induction is more costly and painful--or hysterotomy, which is the more costly, painful, and hazardous. Given the enviable record of safety of all D&E methods as documented by the Centers for Disease Control and Prevention, there is no public health justification for any regulation or intervention in a physician's decisionmaking with the patient. Then I asked one of the professors who testified at the hearing about this. I will get to what he said in a moment. But for just 1 minute let me read the exact language of the bill. We have heard testimony from the authors that this refers to a breech extraction by stopping the head from leaving the birth canal and injecting scissors into the base of the skull and draining fluid. But the definition of the bill is entirely different. The bill says, ``The term `partial-birth abortion' means an abortion in which the person performing the abortion partially delivers a living fetus before killing the fetus and completing the delivery.'' There is no reference to scissors in the bill. There is no reference to drawing fluid from the brain in this bill. In fact, many people believe that the purpose of this bill is really to get at second trimester abortions. I believe that the language in this bill, Mr. President, is vague for very deliberate reasons, because by making it vague every doctor that performs even a second trimester abortion could face the possibility of prosecution in that he or she could be hauled before a court and have to defend their abortion. So this bill in effect could affect all abortions. I asked the legal and medical experts who testified at the Judiciary Committee hearing last week if this legislation could affect abortion-- not just late-term abortions but earlier abortions of nonviable fetuses as well. Dr. Louis Seidman, professor of law from Georgetown, gave the following answer, and I quote: . . . as I read the language, in a second trimester pre- viability abortion where the fetus will in any event die, if any portion of the fetus enters the birth canal prior to the technical death of the fetus, then the physician is guilty of a crime and goes to prison for 2 years. That is a law professor's reading of the bill. He then continued his testimony, and I quote: If I were a lawyer advising a physician who performed abortions, I would tell him to stop because there is just no way to tell whether the procedure will eventuate in some portion of the fetus entering the birth canal before the fetus is technically dead, much less being able to demonstrate that after the fact. [[Page S 18003]] Dr. Richardson, associate professor of gynecology and obstetrics at Johns Hopkins, in testimony before a House Committee said, ``[the language] . . . is vague, not medically oriented, and just not correct. In any normal second trimester abortion procedure by any method, you may have a point at which a part, a one-inch piece of [umbilical] cord, for example, of the fetus passes out of the cervical [opening] before fetal demise has occurred. So contrary to proponents' claims, this bill could affect far more than just the few abortions performed in the third trimester and far more than just one procedure being described. Another part of this bill which is very troubling to me is that an affirmative defense automatically presumes guilt. The legislation provides what is known as the ``affirmative defense,'' whereby an accused physician could escape liability only by proving that he or she ``reasonably believed'' that the so-called banned procedure--whatever that procedure is proved to be--was necessary to save the woman's life and that no other procedure would have sufficed. I think it also opens the door to the prosecution of any doctor who performs a second or third trimester abortion for any purpose whatsoever. As has been said, there is no health exception in this bill at this point. With that, it offers a direct challenge to both Roe versus Wade and Planned Parenthood versus Casey, both of which provide a health exception. So, if this legislation were law, a pregnant woman seriously ill with diabetes, cardiovascular problems, cancer, stroke, or any other health- threatening illness would be forced to carry the pregnancy to term or run the risk that her physician could be challenged and have to prove in court, A, what procedure he actually used, and B, whether or not the abortion partially, vaginally delivered a living fetus before the death of that fetus. One of the things that also came forward very clearly in this and is important to point out is that any third trimester abortion is virtually always used in the case of severe fetal abnormality, and the fact is that not always is this fetal abnormality able to be detected early in the pregnancy. Many women undergo sonograms and other routine medical procedures in the early weeks of pregnancy to monitor fetal development. If a woman is over 35 years of age, she may also undergo amniocentesis. These tests are not routine in women under 35. Ultrasound could also provide early detection of fetal anomalies. But these tests also add considerable expense and are not routinely used until late in pregnancy. As a result, some women carry fetuses with severe birth defects late into pregnancy without knowing it. For example, fetal deformities that are not easy to spot early on in the pregnancy include: cases where the brain forms outside the skull, or the stomach and intestines form outside the body, or do not form at all; or fetuses with no eyes, ears, mouths, legs, or kidneys--sometimes tragically unrecognizable as human at all. But even with advanced technology, many serious birth defects can only be identified later, often in the third trimester when the fetus reaches a certain size. Among those is hydrocephaly. Another abnormality is polyhydramnios--too much amniotic fluid. So families that face these unexpected tragedies are often only diagnosed late in their pregnancy. In fact, both Senator Smith, I believe, and Senator Hatch said none of the women who came before the committee and talked about their third trimester abortion--all of which were the product of major fetal deformities--would be affected by that legislation, but every one of them testified after reading the bill and believing that they would have been affected by this legislation. I think that only points out the vagueness and the flaws in the drafting of this legislation. In fact, no one knows who would really be affected by this legislation. The next point I would like to make is that Roe already allows States to ban late-term abortions. It clearly allows States to ban all post- viability abortions unless necessary to protect a woman's life or health. And 41 States have already done that. So all I can believe is that the purpose of this bill is to invade a guarantee provided by Roe versus Wade, and that is to protect the health of the mother or the life of the mother. As a matter of fact, my colleagues have made much of a statement made by an obstetrician/gynecologist, Dr. Martin Haskell, of Dayton, OH, who indicated that 80 percent of the late-term abortions he performed were so-called elective. I would like to point out that just this year Ohio became the 41st State to ban all post-viability abortions. So, clearly that State has taken care of whatever it was that Dr. Haskell was doing by banning all third-trimester abortions. As I said, 40 other States have done this. So this legislation is effectively unnecessary. The whole focus of this Congress has been to remove the Federal Government where it is within the rights of the State to legislate. Yet this is the first time I can remember in this Congress, when the State has a clear right and ability to legislate and, in fact, has done so in 41 States, that the Federal Government is now saying, no, that is not enough. We want to legislate federally. Let me touch for a moment on the commerce clause. I believe, and others do as well, that this legislation is meaningless under the commerce clause because it would only apply to patients or doctors who cross State lines in order to perform an abortion under these specific circumstances, whatever they may eventually be adjudicated to be. So what is the point? The point is, that this legislation, I believe, has little or nothing to do with stopping the use of some horrific and unnecessary medical procedure performed by evil or inhumane doctors. If that were simply the case, we would all be opposed. I believe this legislation's major purpose is the camel's nose under the tent to get at second-trimester abortions and to put a fear over all legitimate physicians, obstetricians who do perform an abortion when an abortion is necessary--a fear that they could be hauled into court and have to defend themselves and prove that they did not perform whatever a partial-birth abortion is eventually adjudicated to be. So the legislation is vague, it is flawed, and it presumes guilt on the part of the doctor. It ignores the vital health interest of women. I believe these are strong reasons to vote against this bill. I thank the Chair. I yield the floor. Mr. SMITH addressed the Chair.