John Kerry

Mr. KERRY

Mr. KERRY. I ask my colleague if, in fact, by denying that exchange, those people the right to travel and connect with relatives and others within the country, if we don't provide Fidel Castro with the selectivity and greater capacity to restrict what information they get, when they get it, how they get it, and if, in fact, we aren't playing right into his capacity to keep a stranglehold--which is the very thing we are trying to undo.

Mr. KERRY. I congratulate my colleague on his leadership with respect to this. In the years that the Senator served on the Foreign Affairs Committee, in all those years with the visits of Lech Walesa, the visits of Vaclav Havel, and we have all shared wonderful moments with leaders of countries where the curtain fell--I think I recall each of those leaders saying it was the ability of people to come in during the time things were shut, to share with them the sense of what was happening elsewhere, the possibilities, bringing information, to bring them hope; that, indeed, was one of the great sustaining values and empowerments that brought them ultimately to the point of sharing the freedom that we have. I wonder if the Senator wouldn't agree that it is almost totally contradictory with a Stalinist, tight police structure. In fact, by not having intercourse with other people elsewhere--the discussion, the movement of people, the discourse, the exchange of ideas that comes with it--you are, in fact, empowering the capacity of that secrecy and of that closed society to keep the hammer down on people, and that flies directly contrary to all of the experience we have learned from those wonderful visits we have had.

Mr. KERRY. Mr. President, the amendment I am offering today calls on the President to begin multilateral negotiations for the purpose of establishing a permanent multilateral regime to govern the transfer of conventional arms to countries that engage in persistent violations of human rights, engage in acts of armed aggression, do not fully participate in the United Nations Register of Conventional, and countries in regions in which arms transfers would exacerbate regional arms races or international tensions. As the United States and its allies work to expand the community of democratic nations and prevent the spread of violence and ethnic conflict, we must give higher priority to consideration of how conventional arms transfers may work to undermine these important objectives. It is simply not in our interest to allow weapons to flow freely into countries who abuse the rights of their citizens or who are engaged in conflict or destabilizing arms races. International restraint in arms exports is important to U.S. national security interests, as well as for the furtherance of democracy and human rights. The June 1996 ``Report of the Presidential Advisory Board on Arms Proliferation Policy'' concluded that U.S. and international security are threatened by the proliferation of advanced conventional weapons. According to the Report, ``The world struggles today with the implications of advanced conventional weapons. It will in the future be confronted with yet another generation of weapons, whose destructive power, size, cost, and availability can raise many more problems even than their predecessors today. These challenges will require a new culture among nations, one that accepts increased responsibility for control and restraint, despite short-term economic and political factors pulling in other directions.'' An international Code of Conduct is a step toward that new culture. The United States is far-and-away the world's biggest arms merchant, and we must lead the way for the rest of the world in addressing this issue. But we cannot do it alone. A unilateral decision by the United States to limit conventional arms transfers would be an important signal of our commitment to this issue, but it would not stop the flow of weapons into the countries about whom we are most concerned. We should be under no illusion about the ability or willingness of other arms-producing nations to rush in and fill any gap we might create. This amendment will require the President to expand international efforts to curb worldwide arms sales through the United Nations and other fora, such as the Wassenaar Agreement, and to report to the Congress on progress made during these negotiations. The United States should lead the way to establishing a multilateral regime to prevent nations that ignore the rights of their citizens or bully their neighbors from obtaining the weapons that support these nefarious activities. This legislation can be the vehicle to accomplish this important objective. I thank the managers of this bill for accepting my amendment. amendment no. 1168 Purpose: To restrict U.S. aid to Cambodia On page 13, strike lines 2 through the colon on line 14, and insert in lieu the following: ``None of the funds appropriated by this Act may be made available for activities or programs for the Central Government of Cambodia until the Secretary of State determines and reports to the Committee on Appropriations and the Committee on Foreign Relations that the Government of Cambodia has established a tribunal consistent with the requirements of international law and justice including the participation of international jurists and prosecutors for the trial of those who committed genocide or crimes against humanity and that the Government of Cambodia is making significant progress in establishing an independent and accountable judicial system, a professional military subordinate to civilian control, and a neutral and accountable police force:''

Mr. KERRY. Mr. President, the pending bill prohibits the Administration from providing aid to the central government of Cambodia pending certification by the Secretary of State that Cambodia has held free and fair elections, that the Central Election Commission was comprised of representatives from all parties, and that the Cambodian government has established an international panel of jurists to try individuals who have committed genocide against the Cambodian people. I share the Committee's view that aid can be a source of leverage in dealing with the new Cambodian government, and I agree that we should use our aid to encourage the Cambodian government to establish a credible, internationally acceptable genocide tribunal. However, I do not believe that the conditions in the bill provide us with effective leverage because they are outdated and irrelevant to the realities on the ground in Cambodia today. All of us who are involved with Cambodia recognize full well that the elections held last July in Cambodia were a mixed bag at best. The process leading up to the elections had flaws. The elections themselves were quite successful in terms of large voter turnout, lack of intimidation, international monitoring, and lack of violence. But they were less than perfect. Cambodians know this, but they have moved on. They have formed a new coalition government with what appears to be a workable power sharing arrangement between the two major parties. They have an effective opposition party. The Khmer Rouge is no longer a military or political player, looming as a threat to the new government. The climate of political intimidation and violence that has so often characterized Cambodia is no longer prevalent. The new Cambodian government has put forth a policy platform which, if implemented, would enable Cambodia to make real strides toward the establishment of democratic institutions and processes. In light of these realities, it makes no sense to put restrictions on our aid that simply cut off the aid and prevent us from using US aid as an incentive to move the Cambodian government to deal with the serious problems that are on the table now--building an independent judiciary, reforming the military and the policy so that they are professional, neutral and accountable, providing health care and schooling, and tackling the overwhelming problem of poverty. The amendment that I am offering with Senator McCain replaces the conditions in the bill with new conditions designed to promote the building of democratic institutions and to encourage the Cambodian government to establish a tribunal consistent with the requirements of international law and justice to try those guilty of genocide and crimes against humanity. Specifically, this amendment prohibits aid to the central government pending a certification by the Secretary of State that Cambodia is making significant progress in establishing an independent and accountable judicial system, a professional military subordinate to civilian control, and a neutral and accountable police force. The amendment also requires the Secretary to certify that the Cambodian government has established a tribunal consistent with the requirements of international law and justice and including the participation of international jurists and prosecutors for the trial of those who committed genocide or crimes against humanity. Let me say a word about the condition related to the tribunal. When I was in Cambodia in April, I had extensive discussions with Prime Minister Hun Sen, National Assembly Chairman Prince Ranarridh, King Sihanouk, and others about the issues related to the constitution of a genocide tribunal. While the Prime Minister insisted that the tribunal be in Cambodia, he agreed with my proposal that international judges, prosecutors and investigators actively participate in the process. He also indicated that he would support changes in Cambodian law to allow these individuals to actively operate within the Cambodian judicial system. Prince Ranariddh and King Sihanouk also were supportive of this concept. I believe that this kind of tribunal, with meaningful international participation, could provide a credible and accountable process, consistent with international law and standards, for trying those who committed genocide and crimes against humanity. The carrot of US aid can serve as an important incentive for the Cambodian government to follow through on this process. Mr. President, I believe this is a good amendment and I thank the managers for accepting it.

Mr. KERRY

Mr. KERRY. Mr. President, I strongly oppose the amendment of the Senator from Kansas. This amendment gives the President authority to provide assistance for the countries of the South Caucasus and Central Asia--that is, Armenia, Azerbaijan, Georgia, Kazakstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan. The purpose of this amendment is to reestablish the ancient Silk Road trading route and to gain access to the oil and gas resources of the region. In so doing, it has serious implications for Armenia and for ongoing international efforts to promote a solution to the conflict between Armenia and Azerbaijan over Nagorno-Karabakh, because it allows the President to waive Section 907 of the Freedom Support Act, which I originally authored. That legislation prohibited aid to the Government of Azerbaijan as long as it maintains a blockade against Armenia. One of the objectives of the Brownback amendment is to foster the development of regional economic cooperation. Yet, this amendment ignores some fundamental facts on the ground. First, Armenia continues to be blockaded to the east by Azerbaijan and to the West by Turkey. Second, Azerbaijan insists on establishing and maintaining east-west energy, rail and road corridors that deliberately bypass Armenia. Although Armenia is one of the countries that could benefit from this bill in theory, in reality it is totally isolated by the situation on the ground. This bill does nothing to address these realities. There are no provisions requiring that blockades be lifted or that all borders be opened before aid is extended. By failing to include these requirements, the bill in effect legitimizes these blockades and helps Azerbaijan to continue to use them to marginalize Armenia and keep it weak. The ten-year blockade of Armenia and Nagorno-Karabakh by the Azeri government has cut off the transport of food, fuel, medicine and other vital goods. This blockade has been strengthened by Turkey, which has had a similar blockade for the last six years. Section 907 is not a sanction but rather an effort to use the leverage embodied in US aid to create a level playing field for Armenia and to encourage the government of Azerbaijan to take some of the basic steps necessary if a peaceful resolution of the conflict is to be found. Section 907, as formulated in current law, prohibits US government economic and military assistance to the Azeri government, but it permits humanitarian and democracy building aid. All Azerbaijan must do to get section 907 lifted is to ``take demonstrable steps to cease all blockades against Armenia and Nagorno- Karabakh.'' By allowing the President to waive Sec. 907, this bill legitimizes Azerbaijan's blockade and rewards its rejection of the 1998 OSCE compromise peace proposal. This only complicates efforts by the international community to foster a settlement to the conflict. The greatest weakness of this Brownback amendment is that it is totally silent on the peace process. Mr. President, I will vote against the Brownback amendment and in support of the McConnell amendment, which removes the President's ability to waive Sec. 907.

Mr. KERRY

Mr. KERRY. Mr. President, the pending bill fails to authorize the Administration's full request for funding for U.S. contributions to international organizations and for U.S. contributions to international peacekeeping activities. I am pleased to cosponsor the amendment offered by my colleague, the Senator from Maryland, because it at least partially rectifies this situation by bringing the authorization for one of these two accounts up to the Administration's full request for Fiscal year 2000. The bill before us today makes significant strides in the on-going efforts of the Congress and the Administration to pay U.S. arrears to the United Nations and achieve much-needed reforms in that organization. I commend both the chairman of the Foreign Relations Committee, Senator Helms, and the ranking Democrat, Senator Biden, for this important accomplishment. Working closely together and working closely with the Administration, they have reached an agreement that will allow the United States to begin restoring its status as a member- in-good standing of the UN. I believe many of my colleagues share my profound relief that, with this bill, the United States will take an important step toward paying what we owe to the United Nations. For the United States to fail to meet its treaty obligations as a founding member of the United Nations is, in my opinion, conduct unworthy of this great nation. In our increasingly interconnected world, even a great nation--even the sole remaining superpower--can not protect and advance its national interests alone. We need not look any further than the last few weeks, as the United States and our NATO allies have worked to bring an end to the conflict in Kosovo, to see just how important the UN is to our ability to exert positive international leadership. For every day we have allowed U.S. dues to go unpaid and U.S. arrears to mount, our leadership in the UN has been subtly, but surely undermined. As we take the important step today of authorizing the payment of most of what we owe to the UN, we just as surely take a step toward reinforcing U.S. leadership around the world. This bill does not, unfortunately, authorize payment of the full amount the State Department says we owe the UN. Of the $1.021 billion we acknowledge that we owe, this bill only authorizes payment of $819 million in direct payments and $107 million in debt forgiveness. We still fall $95 million short. I look forward to working with my colleagues on the Committee to ensure that the full amount of U.S. arrears to the UN are paid. The amendment offered by Senator Sarbanes, by ensuring the authorization of full-funding for what the U.S. currently owes for peacekeeping is critical to continuing the hard-fought effort to restore U.S. standing in the United Nations. By cutting the level of our current contributions to the UN's regular budget and peacekeeping activities as this bill does, we run the risk of increasing our arrears in the very same bill where we are paying them down. The amendment offered by Senator Sarbanes would ensure that we do not take one step forward and two steps back on paying what we owe to the United Nations. I strongly support this amendment. Mr. BIDEN addressed the Chair.

Mr. KERRY

Mr. KERRY. Mr. President, I understand a couple of Senators are out of town and therefore are not, even though they may want to, able to physically meet the unanimous consent request of the chairman. I wonder if the purposes of the Senate in moving this legislation forward are not equally well served by narrowing the universe of amendments by requiring that they all be laid down before the hour when there will be no further votes. We will then have a fixed universe of amendments, and we can begin debating them and proceed rapidly.

Mr. KERRY

Mr. KERRY. If the Senator will yield for a moment on just a point further, the language in section 2 says ``such losses result directly from damage to tangible personal or real other property.'' The economic losses my colleague is skillfully referring to may be the much larger losses that come from, say, the intellectual property failure.

Mr. KERRY. Mr. President, I yield back the remainder of my time.

Mr. KERRY. Mr. President, I ask unanimous consent that I be permitted to yield back my time, with the understanding that if Senator Murkowski is not permitted to go forward, Senator Edwards can talk until he is, and if he has gone forward, that Senator Edwards would then be recognized to speak within the confines of the unanimous consent agreement just agreed to.

Mr. KERRY. Mr. President, I cannot do that. I think Senator Edwards wants to use a little time.

Mr. KERRY. I have no objection.

Mr. KERRY. Mr. President, how much time is remaining on both sides?

Mr. KERRY. I ask unanimous consent that the order for the quorum call be rescinded.

Mr. KERRY. On your time.

Mr. KERRY. I apologize, it is now section 11.

Mr. KERRY. I yield myself such time as I use. Let me begin by paying tribute to both the Senator from Connecticut and the Senator from Utah. I know they have spent a huge amount of time, and they have done for the entire Senate and the country a great service in calling attention to and helping people understand the nature of this problem. I genuinely give both of them great credit for their leadership and their vision, understanding well over, what, 3 years ago that it was a problem and we needed to address it. Our difference is not in good faith, in purpose, or intent. It is how we will or will not do something. I know my colleague from Utah is a very thoughtful and diligent student of these kinds of issues, and I share with him his own language with respect to the damages of limitation by contract, for instance. This is section 110, page 11, of the bill. It says: In any Y2K action for breach or repudiation of contract, no party may claim, nor be awarded, any category of damages unless such damages are allowed-- (1) by the express terms of the contract; . . . .

Mr. KERRY. That is entirely fair. What I would like to do is just respond and then I will sit down and reserve the remainder of the time. Let me say to both of my colleagues, and I am glad we are getting to the nub of this, I say this gently and nicely: Both of the presentations that were made are incorrect with respect to what I said. The Senator from Oregon made a bold defense of contract law, and the economic loss argument that he made refers to the preservation of existing contract law. But economic loss is a tort claim. It is a tort claim. His argument is simply irrelevant when he says he is protecting the capacity of the contract law, so to speak, to be preserved within the framework of the economic loss argument. Here is why: My colleague from Connecticut just said we are trying to open this up to some broad, new thing, and the example he cited would not be, in fact, included. It absolutely would be included because our language includes both of the examples that he gave. If it is provided in the contract, the person would be made whole. Or if it is the result of a Y2K failure, the person would be made whole. Here is the only difference. We go one step further. We do not allow them a whole lot of intentional torts except--and I read from the language--``where the tort involves misrepresentation or fraud.'' That is the only ``new thing'' here. So, if the Senator from Connecticut is really concerned, what he is concerned about is that a lawyer might be able to lay out, according to the tough standards in both of our bills, sufficiently precise pleadings with a period to cure. You may never have a lawsuit because everybody is going to have a 90- day period to cure, and we hope they are going to do exactly that. But if they do not do that and they do meet the sufficiency of the pleadings, and there also is a sufficiency of a showing of fraud or misrepresentation, they ought to get their economic losses. What we are saying is that under S. 96, under the current way it is written, you are denying economic losses if there is fraud or misrepresentation. That is the only ``new thing.'' The Senator from Connecticut says we are going to open up some great Pandora's box, a whole lot of lawyers bringing cases. We have tough pleading requirements here, really tough. Even after you send in your first notice of a lawsuit, the company is going to get 90 days to fix it. Any company that does not fix it in 90 days probably ought to be held accountable for the fraud and misrepresentation. But your bill says no to fraud and misrepresentation. Ours says yes. I ask anybody which they think is more fair. I reserve the remainder of our time.

Mr. KERRY. I am reading from the accurate language. The point I am making is that you only allow damages according to the express terms of the contract. That contract could be illegal. That contract could be unenforceable or enforceable under other circumstances under State law. The language we have added simply says ``unless enforcement of the term in question would manifestly and directly contravene applicable State law in effect on January 1, 1999.'' Here is a major difference. You would, in fact, allow the contract to supersede applicable State law even if the contract were illegal. That is the way it reads. There are serious implications in the language that is in the bill that would have a profound impact, and that is the kind of difference we have tried to address in pulling together our amendment. I reserve the remainder of our time.

Mr. KERRY. I appreciate the Senator's comment enormously. I want to call the Senator's attention to the language of the bill. Section 121, Damages and Tort Claims: A party to a Y2K action making a tort claim may not recover damages for economic loss involving a defective device or system or service unless---- And you have two conditions under which they could. No. 1, where the loss is provided in the contract; and, No. 2, if the loss results directly from damage to the property caused by the Y2K failure. I have a third, and the Senator's folks are opposed to it. Here is the third. The defendant committed an intentional tort. Except where the tort involves misrepresentation or fraud regarding the attributes or capabilities of the product. Does the Senator want to pass a bill without that, without the fraud and misrepresentation? It is in the bill.

Mr. KERRY. Will the Senator yield?

Mr. KERRY. I yield myself 5 minutes. I listened to the Senator from Connecticut. I must say that I am a little disappointed, from what I heard, for a simple reason. I haven't come to the floor of the Senate and talked about the Chamber of Commerce. I haven't come to the floor of the Senate and talked about specific companies and interests that are represented or the dynamics this raised. I think to suggest that somehow what I have put on the floor represents the interests of just a few law firms really is an insult to the legislative effort that has taken place here. There is nothing in here that lawyers like. There is a restraint on plaintiffs almost every step of the way. This has been negotiated with many different people. I have sat with high-tech people at great length. I have tried to do the bidding of the high-tech community to the greatest degree possible. I have listened to them. I have talked to Andy Grove three or four times. In his letter to the committee chairman, he stated that of his four interests, each had been met in this legislation. We do exactly what the McCain bill does on cure. We do exactly what the McCain bill does on the mitigation. We do exactly what they do with respect to contract preservation. The one distinction in the four ingredients is a requirement that a company be a good citizen by looking over its inventory and making a determination as to what it did or didn't put out into the marketplace that might have the potential for creating a problem. My colleagues come to the floor say again and again: We want remediation; we want to make it get better; we don't want lawsuits. I don't, either. We want the same remediation. But if you ask a company to investigate its inventory, in my judgment, you are doing a better job of encouraging them to remediate than if you give them a blanket ``out'' from under one of the great leverages of our judicial system, which is the joint and several liability. They get it no matter what they do. How that is an invitation to fixing the system and making it better is beyond me. I think we need to be very clear here. Moreover, we have been told we are changing contract law. We are not changing contract law. We are suggesting contract law ought to be respected, and we are very clear about that. In fact, we uphold the contract law as it is, State for State. No one has answered this question: Why should a company be able to escape responsibility for an intentional, willful, wanton, reckless or outrageous, willfully committed fraud against an individual when it creates economic loss? If you have economic loss under the provision of S. 96, you are not permitted to sue with respect to the intentional willfulness that took place. Why you want to protect a company that so behaves is beyond me. Another company may have a huge loss of intellectual property; they may drop their entire database; they may not be able to provide their contracts to other companies for months; they have economic loss; there was an intentional defrauding. And we are not going to hold them accountable for that. We should be clear as to what we are talking about. This is a very moderate, very legitimate effort, just as legitimate without any insinuations of who may be directing the interests of the other side and just as legitimate to legislate a sound approach to Y2K liability. I reserve the balance of my time.

Mr. KERRY. How does that stand? How much time does each side have at this point?

Mr. KERRY. Mr. President, we are now under controlled time, are we not?

Mr. KERRY. I will yield for an answer to the question. Why should fraud or misrepresentation be protected?