John Kerry

Mr. KERRY

Mr. KERRY. Why not be willing today?

Mr. KERRY. I just want to say to my friend, why should we ignore that history? This is not a big place. Four million people, 600,000 on this side, 2 million on one side. What are we talking about here? This is not Russia. This is not Vietnam where there were 77 million people. This is not the same kind of struggle. We are not talking about becoming involved in the civil struggle. We are talking about delivering humanitarian assistance. We are talking about guaranteeing a safe zone. Those are the two most minimalist things that you can conceivably ask for under the laws of warfare. Is the Western World incapable of living up to the most minimalist standard of protection under the laws of warfare? Are we incapable of taking this incredible, mighty war machine and putting it to use to guarantee that trucks can go down a road, that we can keep people from a certain perimeter from picking [[Page S 10626]] off an old woman who goes to a drinking fountain? I do not believe we are that incapable. I am not going to come to the Senate floor and ratify an effort that literally puts into law that lack of capacity and will. I think it is wrong.

Mr. KERRY. Let me say to my friend from Connecticut, whose concern for this is as passionate as anyone's in the Senate, that he is absolutely correct. We have been here, done that, seen that, said that. And that is part of what is feeding the frustration that every Member feels today. But as far as I know, that is not a predicate for suggesting that we should personally step in, step in in a way that now unravels whatever potential is left of minimizing the loss of life. I believe the Senator will also acknowledge that every step of the way, when we were serious about a strike, we made a difference. That is how we secured the safe zones in the first place, if everybody goes back to think about it. It was the fact of airstrikes that gained us this notion of safe zones. And each time we stepped up to bat, the Serbs have stepped away from the plate or off the field.

Mr. KERRY. Mr. Boutros-Ghali does not have the ability to stop the NATO commander from doing a strike if the NATO commander--the NATO commander does not report to him, the last time I understood it. If it is our understanding that the NATO commander has the capacity to do the strike, I am confident when he radios Washington with the appropriate messages, he is going to strike notwithstanding whatever Mr. Boutros- Ghali said for the purposes of international U.N. political consumption. Now, I agree with the Senator that is part of the problem here. It always has been. And when we were at the meeting at the White House the other day, a number of us suggested to the President that it is imperative to be out from under any control factor in the clearest terms. If we cannot do that, then I would agree with the Senator we have to find an alternative solution. But I would still respectfully say to the Senator, the alternative solution is then, hopefully, not to throw up one's hands and say we cannot do anything. I think then the appropriate solution is to say NATO and willing nations must assume what the United Nations is either unwilling or incapable of doing. Now, that is my preference before we come to the floor of the U.S. Senate and ratify an abandonment.

Mr. KERRY. I will not accept whatever Mr. Boutros-Ghali is putting out to the press.

Mr. KERRY. Let me just say, if the Senator wants to suggest to me that the Secretary of State lied to the Democratic caucus today, then do that.

Mr. KERRY. I will be happy to yield for another question.

Mr. KERRY. Absolutely. There is a profound difference. And I agree completely with the Senator. As I was just starting out in the last sentence when I broke to answer the question of the Senator, I was saying we should lift the embargo. It makes sense in terms of article 51, in terms of the law, in terms of the equities. But we should not do it unilaterally. Now, that is where we get caught in the Catch-22 that has confounded everybody for the past months because every time we turn around and go to the French and the British and say we want to do this, we are told, ``No, if you do that, we are going to leave.'' And so we do not do it, and we pull back, and we go around in this circle. I think that what has changed in the last week or two is the recognition, hopefully, that the situation is, indeed, untenable and that we cannot continue in the form in which we are. And the President has made that about as clear as a President of the United States can make it. The President has been forthright in saying this policy is not working. He has been forthright in acknowledging that the dual key is a terrible mistake and we must never do that again. He has been forthright in acknowledging that we have not adequately been able to respond because we have had a proportionate response rather than a disproportionate response. So I think the President has pretty much laid the policy of the past months on the table and said it is changing. Now, I listened to the Secretary of State today say to us point blank, there is no more dual key. The NATO commander on the ground has the ability to make the decision, if he observes an attack, to call in a strike. In addition to that, the French and the British have put howitzers up on Mount Igman. They have put additional troops, Legionnaires up in the hills around Sarajevo. They have strengthened their own capacity. And so suddenly, in the face of their willingness to do all of this, we are going to turn around and say, ``Sorry, folks; the United States of America says time to cut.''

Mr. KERRY. Mr. President, the final question that comes out of that is since Bihac is already under attack and Gorazde is already under attack, if we were to put into law the notion that all we are going to do is lift the embargo, why would the Serbs then not accelerate the pace of the attack in order to guarantee that during the interim, before heavy weapons can get there, they would finish the job?

Mr. KERRY. Would that not be a policy that might not in fact leverage the negotiated settlement that would be everybody's desire?

Mr. KERRY. I appreciate the Senator taking the time. I would like to ask again a couple more questions, if I may. Mr. President, I ask the majority leader, would the majority leader prefer a policy that went further than what was achieved in London, where each of the safe areas was in fact given a guarantee of being safe? Would NATO be capable of enforcing that with American air support reinforcing French and British troops on the ground and with sufficient troops to make real the notion that the international community will make a difference? Would the Senator prefer that policy?

Mr. KERRY. Assuming we would override it and it became the law of the land, apparently this British Prime Minister, as recently as yesterday, said to the President if this passes the Senate, they will begin the process of withdrawal.

Mr. KERRY. I accept that. I understand that. But my next question would then be if the Senate went the full measure and Congress passed this, at that point in time does the Senator accept the French and British pronouncements that they will withdraw completely?

Mr. KERRY. If I could say to the Senator, the Senator talked about forcefulness and the need to stand up and be a leader. My question is this: Is the only leadership that we are offering a leadership that effectively says not only will we not give you weapons, not only will we not strike, but we will simply lift an arms embargo and you fight it out?

Mr. KERRY. Mr. President, I ask the Senator, the majority leader, if he will engage, perhaps, in a brief colloquy? I would like to take the opportunity to ask a few questions, if possible. I would like to ask the majority leader--first of all I would like to say I think every U.S. Senator shares the anguish and frustration expressed by the Senator and by others on the floor. The question here is what is the consequence of one step or another? I would like to ask the Senator if we could perhaps have a little dialog. I think it would be helpful to elucidate this a bit. I would ask the Senator if this is the Senator's preferred policy. I heard the majority leader talk about American leadership and inaction, and being hamstrung by the U.N. I presume there is a policy that is growing out of frustration. I would ask him if this is his preferred policy, and if it is not, whether or not the Senator would articulate what he would prefer to see us doing now that would make a difference.

Mr. KERRY

Mr. KERRY. I move to lay that motion on the table.

Mr. KERRY

Mr. KERRY. Mr. President, let me just answer my friend, if I may.

Mr. KERRY. Let me say to my friend---- Mr. GLENN addressed the Chair.

Mr. KERRY. It is the last comment previously made on the floor that helped bring me to the floor, and I thank my friend from North Dakota for already responding to some degree, and I know the Senator from Ohio is now here. Let me just respond to that. We are perfectly prepared to sit down, and we have been on an ongoing basis. Yesterday afternoon, I believe, I got in written form a response to the most recent suggestions that we made with respect to the bill. The principal sponsor of the bill is on the floor now. I know he will say that he is not stuck in the mud or cement or anything with respect to the fact that the Glenn-Chafee bill in and of itself, in its entirety, is somehow presumed to be the only vehicle to pass. We understand that full well. Nor are we in a position that is embracing a no-bill strategy. We have a lot of folks on our side of the aisle, myself included, who would like to vote for regulatory reform, number one, and who are prepared--in fact, more than prepared --we are already agreed in our negotiations to arrive at new decisional criteria. There are some outside who do not want that. But we have agreed that cost evaluation and risk assessment are appropriate things in a modern society to do to make a judgment about whether or not you are spending more money than the benefit you are getting. The problems that remain, however, are significant. When you have 48 Senators, obviously going to diminish by 1, 2, 3--we all understand how it works around here. But when you have a sufficient number of Senators still saying this bill is a problem, and much more importantly, I say to my friend, when you have the President of the United States and his full Cabinet saying in its current form this bill will be vetoed, then there ought to be a legitimate effort here by all of us to legislate in a way that precludes that veto or try to reach a reasonableness where the best effort has been made to do so. With all due respect, we still have a problem where we are still fighting and the Senator knows what it is about. It is about these 88 different standards, new standards for litigation, and the fact we do not feel we have sufficiently made this a bill which will, indeed, be reform. Our fear is that this bill in its current form is going to result in the agency being so swamped with petitions and having to respond to so much judicial review that they simply cannot do what they were intended to do, which is protect the health, the safety, and the environmental concerns of Americans. Now, I do not know how many times we have to say it. There are stupid agency rules in existence. I am confident that people of good faith can sit down and identify them. There are excesses where agencies have even reached beyond the stated intent of a statute. That is not what we are here to do. I am confident if we sit down further and continue to be able to try to reach somewhere between what Senator Glenn and Senator Chafee have put forward and what the Dole- Johnston bill represents, there ought to be a meeting of the minds.

Mr. KERRY. This is an unfunded mandate. My friend from Ohio said this: ``This is the mother of all unfunded mandates.''

Mr. KERRY. Will my friend yield?

Mr. KERRY. No, not Glenn-Chafee. I said Glenn-Roth. I said Glenn- Roth. And the only change between Glenn-Roth and Glenn-Chafee, I believe fundamentally, is the fact that the sunset is out and there is a minor change or two. But the other committee, the Environment and Public Works Committee that has jurisdiction, was completely bypassed. The Judiciary Committee, as everybody knows from the report, barely had an opportunity to legislate. Now, what did we get? We got a bill written in back rooms, cloakrooms--who knows where--offices. It comes to the floor, and now we are trying to write legislation. So it is difficult when you are weighing the impact of each of these words to do it in an afternoon, with a Whitewater hearing and a Bosnia debate and all the other meetings that we go to. It is not a question of bad faith.

Mr. KERRY. Mr. President, the problem with this is, we are trying to write one of the most complicated pieces of legislation in none of the committees to which the jurisdiction falls. The committee to which the jurisdiction fell was the Governmental Affairs Committee. They sent us the Glenn-Roth bill at the time. It came out to us 15 to 0. So we did have a bipartisan consensus about how to approach this.

Mr. KERRY. It does not have the same structure, no. It leaves discretion to the agency. It does not create 66 new pages of exactly how the rulemaking is going to take place. Let me be more precise to my friend. The struggle we are having is over a couple of words which will clarify the stated intent of the Senator from Louisiana, but not the written intent. The stated intent of the Senator from Louisiana was accurately just portrayed. And I agree with him. The Senator just said, ``All you can do is make a judgment about the final rule as to whether or not the final rule is arbitrary and capricious.'' I agree with him. That is the standard we want. That is what he says he wants. That is what he says the bill does. We disagree. We believe that because of the lack of clarification in one paragraph that in fact the Senator inadvertently is opening up all of the procedural standards to review. If we will simply make clear in the text with the language we have sought that it is indeed as he says, not as to the procedure, but exclusively as to the final rule only, without regard to the procedure except as it fits into the whole record, we will solve that problem. Now, I ask the President or anybody listening if that really sounds so unreasonable. And the problem is that every time we get to the point of saying, ``Why cannot we codify your intent,'' we run into a stone wall. So it makes us feel, ``Well, gee whiz, if we cannot codify with specificity the stated intent, which does not serve us anything when you go to court afterwards, something is wrong here.'' Now, I say to my friend, he is a very good lawyer. He knows exactly what will happen. If you go to page 52, line 4, paragraph 633, there is a requirement here: The agency must use the best reasonably available scientific data and scientific understanding. If a claimant wants to come in with a good lawyer and say the agency did not use the best reasonably available scientific data, and therefore their decision was arbitrary and capricious, you have opened up each procedural section here to that kind of individual appeal. And, in addition to that, you have procedural requirements that amount to that. All we are saying is if you do not intend each of these subsections to become the basis of that appeal, let us just say it. If we say it, we have solved our problem.

Mr. KERRY

Mr. KERRY. Mr. President, I hope our colleagues will allow us to try to continue and to negotiate a reasonable bill.