Daniel Moynihan

Mr. MOYNIHAN

Mr. MOYNIHAN. You vote to increase the demand for gasoline.

Mr. MOYNIHAN. Not a one.

Mr. MOYNIHAN. I say to my friend that not only would it be inconsistent, but to allude to a point he made earlier, it would be ``silly.''

Mr. MOYNIHAN. Will my friend from Illinois yield for a question?

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, there is good news and better news in the world today with regards to the progress and the stability of democratic procedures around the world. We are, as is evidenced from the day's proceedings, already well into our election season, though the actual election will not be held until next November, as has been our practice over the last two centuries. It is possible in a country such as ours to take for granted national, State, and even local elections, as a part of the rhythms of our life. Yet, they are rare in the world. In the whole of the membership of the United Nations, some 185 countries now, there are only 7 States which both existed in 1914 and have not had their form of government changed by violence since then. We are joined in that very special group, by the United Kingdom, four former members of the British Commonwealth--Canada, Australia, New Zealand, and South Africa--and Sweden. I would add Switzerland, though it is not a member of the United Nations. Of the great powers of the world, the newest to begin a process of choosing leaders by elections is Russia, the Russian Federation and other members of the former Republics of the Union of Soviet Socialist Republics. Yesterday, we learned with understandable anxiety that on Sunday Major General Aleksandr Korzhakov, the close aide and security advisor to President Boris Yeltsin of Russia, stated that it might be necessary to cancel the Presidential elections scheduled for June. He stated that the country was not ready to make a decision. It is clear his concern is that if the country were to make a decision now, it might not choose Mr. Yeltsin. Mr. President, this will be the second Presidential election in Russian history. To his great credit, yesterday in Moscow, Mr. Yeltsin said that the election would not be postponed; it will take place as scheduled. Mr. Yeltsin went on to instruct General Korzhakov not to get involved in politics and to refrain from making such statements in the future. On the other hand, in his statement, Mr. Yeltsin refers to his opponent, who is associated with former Communists in Russia and who has a program very much opposed to the economic reforms Mr. Yeltsin has been pursuing, albeit at times erratically, by stating that, ``Korzhakov is not alone in thinking that a Gennadi Zyuganov victory would start a civil war.'' Now, those are ominous terms, sir. Mr. Zyuganov is the candidate considered to be Mr. Yeltsin's chief opponent, and he represents a revival of Communist thinking and organization to some extent. The word ``civil war'' takes us back to the events of 1917 when the Bolsheviks seized power from a moderate provisional government, potentially a democratic government. Those events in St. Petersburg in the Winter Palace in 1917 are well-known to us --and were followed by four years of intense, agonizing war across all of Eurasia. A war in which the United States was involved with troops in Murmansk, Vladivostok, and elsewhere, as were the British and the French. The outcome was the triumph of the Soviet Union and the horror that followed for nearly three-quarters of a century, until its final dissolution in 1991. We can only wish the democrats, or if you like republicans, well in the Russian elections. We should take note of how very tentative these advances can be, and take into account those who are voicing concern over the prospect of an election in which the outcome would result in civil war. By extraordinary contrast, Mr. President, the Republic of India today concludes the third and final day of the largest election in human history. Some 590 million Indian citizens are eligible to vote in three separate days of balloting: April 27, May 2, and today, May 7. This will be the 11th national election since the founding of the Republic of India in 1947. A very large proportion of the electorate will have voted in some 800,000 polling places. The task of keeping the polling stations open is formidable, yet the task is being accomplished and it suggests the magnitude of the achievement. In so doing, India continues to exist as a democracy, in defiance of just about everything that those who profess to know about the subject would argue are required as preconditions necessary for a democratic society. Yet India continues to remain a firm democracy and to exhibit an extraordinary commitment to law and to civic process. Here is a country with 15 official languages, not to mention English which, as Prime Minister Nehru described, enjoys ``associate status.'' In addition, some 50 major regional languages. It is a country that stretches from the Himalayas in the north to Cape Comorin far into the Indian Ocean, approaching the Equator. It is the second most populous nation on Earth. There has never been a country of this size able to have regular and free, democratic elections. They are not without disturbances, few elections are anywhere; however, we do know that there will be a government formed in the aftermath of this election. There will be no civil war. There will be no civil unrest. There will be an acceptance of a democratic process without parallel in the history of mankind. It should cheer us up and make us realize that the last half century has not been for nothing. The current possibilities of a democratic society around the world are perhaps beyond what anyone could have imagined a century ago, and they are thriving and proudly prevailing on the subcontinent of India, in the Republic of India. I am sure the entire Senate will wish to congratulate the people of India and all who have participated in this election. We take no position whatever as to the outcome. There are any number of parties with capable candidates. At the present time, the balloting should have been concluded, it being past midnight in India. Soon we will know the outcome. It fell to that singular commentator, William Safire, in the New York Times, to note this event in a remarkable column in which he observes the Indian achievement. I think we should note the contrast of this achievement with the People's Republic of China which, though comparable in size, has never had an election of any kind. I ask unanimous consent that Mr. Safire's column be printed in the Record.

Mr. MOYNIHAN. I take the liberty of extending the congratulations of the U.S. Senate to the Government and peoples of India on the conclusion of this, the 11th national election as an independent nation in the world: proud, increasingly prosperous, and with every expectation of becoming more so. I thank the Senate for its courtesy and allowing this interruption. I suggest the absence of a quorum.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, I ask that I be permitted to proceed as if in morning business for up to 8 minutes.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, I thank Senator Simpson and Senator Kennedy for accepting this amendment providing for a prototype counterfeit-proof Social Security card. It was 18 years ago that I first proposed we produce a tamper- resistant Social Security card to reduce fraud and enhance public confidence in our Social Security system. The amendment accepted today is very simple. It would require the Commissioner of the Social Security Administration to develop a prototype of a counterfeit-proof Social Security card. The prototype card would be designed with the security features necessary to be used reliably to confirm U.S. citizenship or legal resident alien status. The amendment would also require the Commissioner to study and report to Congress on ways to improve the Social Security card application process so as to reduce fraud. An evaluation of cost and workload implications of issuing a counterfeit-resistant Social Security card is also required. Let me point out that Congress adopted this provision last year as part of the Personal Responsibility and Work Opportunity Act (H.R. 4), the welfare legislation vetoed by the President. Senator Dole cosponsored the amendment, and it passed the Senate by a voice vote. The Senate also included it in its version of the budget reconciliation bill, but the provision was dropped in the conference committee. When the Social Security amendments were before us in 1983, we approved a provision to require the production of a new tamper- resistant Social Security card. The law, section 345 of Public Law 98- 21, stated: The Social Security card shall be made of banknote paper, and (to the maximum extent practicable) shall be a card which cannot be counterfeited. What a disappointment when late in 1983 the Social Security Administration began to issue the new card, and it became clear that the agency simply had not understood what Congress intended. The new card looks much like the old, much like the first ones produced by Social Security in 1936. It has the same design framing the name and nearly the same colors. It feels the same. An expert examining a card with a magnifying glass can certainly detect whether or not one of the new ones is genuine, but therein lies the problem. We should have a new, durable card that can hold vital information and can be authenticated easily. A new Social Security card--one very difficult to counterfeit and easily verified as genuine--could be manufactured at a low cost. The major expense, if we were to approve new cards, would be the cost of the interview process, and that is why the amendment requires a study to include the cost and workload implications of a new card. A Social Security card could be designed along the lines of today's high technology credit cards. The card could be highly tamper- resistant, and its authenticity could be readily discerned by the untrained eye. The card must be seen as a special document; one which would be visually and tactilely more difficult to counterfeit than the current paper card. The magnetic strip would contain the Social Security number, encoded with an algorithm known only to the Social Security Administration. A so-called watermark strip could be placed over it, making it nearly impossible to counterfeit without technology that currently costs $10 million. The decoding algorithm could be integrated with the Social Security Administration computers. The new cards will not eliminate all fraudulent use of Social Security cards. But it will close down the shopfront operations that flood America with false Social Security cards. That is what the Congress intended in the 1983 legislation. Let us try again. We have seen that it can be done. It is what the Clinton Administration intended last year when they introduced the Health Security card. As many of you remember, it had a magnetic strip to hold whatever information may be necessary. I am pleased that the Senate has adopted this amendment, and I again thank the managers of the bill for their support.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, I rise to commend to the Senate three remarkable public addresses delivered last week on the Days of Remembrance, designated by the Congress to the memory of the Holocaust victims. Two of these speeches were given at New York City's Annual Commemoration of the Warsaw Ghetto Uprising and the third graced the U.S. Holocaust Memorial Council's National Civic Commemoration in the Rotunda of the Capitol Building. These addresses by my friend Benjamin Meed, president of the Warsaw Ghetto Resistance Organization and Avroham Burg, the dynamic director general of the Jewish Agency for Israel, are important statements that deserve the attention of all who cherish human freedom and democratic values. I ask to have these remarks by Mr. Meed and Director General Burg printed in the Record. The remarks follow: An Address by Benjamin Meed, President, Warsaw Ghetto Resistance Organization 53rd Annual Commemoration of the Warsaw Ghetto Uprising We are together again--the entire Jewish people, men, women, and children, to commemorate the murder of the Jewish people by the Germans and their collaborators. They made no distinctions among Jewish people at the gates of hell. Together we were all pushed to the gas chambers. For one reason only--we were born as Jews. This commemoration, which I have the honor to chair for the 35th year, is deeply emotional for me as it is for many of you. For many years, the survivors alone remembered. We kept reliving our nightmares in the hope that the world would pay attention to our past, and now, the world has heard our story. People have started to understand that what happened was real. When we testified collectively, the world began to take our tragic experience seriously--and to heed our warning. Or perhaps it is because all humanity is frightened that the tragic, unique lesson that we Jews experienced, can happen again--this time on a cosmic scale--to all people. And it is all because survivors kept faith with the final command imparted to us by the Kedoshim! Zachor--Gedenk--Remember! We accepted that obligation and took it with us to our adopted homes throughout the world. In Israel or Argentina-- in Sweden or France--throughout the United States and Canada--survivors remember. How can we forget? How can we allow others to forget? How betrayed and isolated we were by the high and the mighty--and the ordinary people. The so called ordinary people were not so ordinary. Many highly educated were nevertheless motivated to murder us. Immediately after the Holocaust they said they did not know. How could they not have known? On the cattle cars to Auschwitz and Treblinka--throughout Poland, Czechoslovakia and Hungary on the way to death--we criss-crossed all of Europe--day after day after day--screaming for help in Yiddish and Polish, Greek and German, Dutch and Flemish, Russian and French. But the world would not listen as we were herded together from the four corners of Nazi Europe to be murdered--only because we were Jews. We Jews now speak other languages. And on Yom Hashoah we gather from every part of the world--to remember together! And Jews are united--not by death--but by memory and by a love of Israel. To us survivors, the State of Israel is not only a political entity. It is a homeland--a realized dream-- a bright beacon of light in a world desperate for hope. And yet we are still afraid--but it is a different fear. Those who were fortunate enough not to have experienced the Holocaust do not and cannot understand how we survivors feel when we see how our tragic past is remembered by others. We are deeply hurt when we see the way the Holocaust is portrayed as only dead bodies--piles and piles of corpses and mass graves. We survivors shudder, for in a way we fear that Hitler succeeded because the world is not aware of the vibrant Jewish life that was before the Holocaust--or of the cultural heritage of 1,000 years of Jewish history in Europe. It does not hear the songs of the shtetl, the theme of Warsaw, the Yeshivot of Vilna, the Hasidim of Belz, or the poets of Lodz and Krakow. All it recognizes is death. Yet we remember the life that was destroyed--the world that is no longer. The world of Yiddishkeit and Menchlichkeit. We are still asking the questions--how did it happen? Who failed? What failed? But these questions should not distract our attention from the real murderers--the Germans and their collaborators--or from the profound failure of world leaders and church leaders. Their silence has yet to be judged by history. And we think not only of the past but also of the future. To you--our children assembled here, we would like to entrust our memories--as part of our last will and testament. You are the last generation to be blessed with the memories of the survivors--the living witnesses to the kingdom of night. This is your heritage, which we are transmitting to you. You must know your roots. You must remember that your very birth was testimony of the triumph of hope over despair--of dreams over pain. You are our response to those who tried to destroy us. We also want to protect the truth from innocent and well- meaning people who speak only of the good--of the rays of hope and goodness--the righteous Gentiles whose memories we cherish with gratitude. But where was the reality? For every righteous person, there were thousands who collaborated or who shared the enemy's desire to murder the Jews or who, at best, stood idly by and did nothing. Let us remember the Holocaust as it was. It was painful. It was bitter. It was ugly. It was inhuman. But it was real. Let us not permit it to be diluted or vulgarized. Let us not diminish its meaning by treating every event in human history--every instance of human suffering or discrimination as a Holocaust. We survivors know that time is growing short, we are getting older and we need each other more than ever before, and we need you--our children and our fellow Jews to continue our legacy. Remarks of Avroham Burg, Director General of the Jewish Agency for Israel Shalom Moishe, my dead elder brother. A year has passed, and once again we are gathered to honor your memory. Each year, we promise you that we will never forget. We will not forget you and all our brothers and sisters who will forever remain the young boys and girls you were on the day of your deaths. You really haven't changed. You are still so much like the old, faded picture hanging on the wall at home. It was hand painted with life-like colors. In our memories, you are still smiling as if the world wasn't such a hard place to live in. It's as if you really haven't noticed that another year has gone by. The sun is hotter, and the cold is even colder. My legs are weaker, and my eyes are filled with more tears. And strangely, as more time passes, and we grow further apart we grow closer together. Because each year, fewer survivors remain. They leave this world, and we remain here with the heavy burden of memory. And, as we eulogize you, we also eulogize lost childhood and history that--like you--we can never ever bring back. Six million brothers died. Sisters, children, parents and their loved ones. How many of you are there really? Another entire State of Israel. Another community the size of the American Jewish community. Another fifteen communities of Latin American Jews? So many boys, girls and grandchildren that will never be born. Our mourning will never cease. Never, because you--the fallen--never will have children. There were those who never had children because they were too young, and those who had children whose spirits never ran free, and those who had children who never had the chance to fulfill their dreams. As time passes, we miss you more than ever. We miss the children that you never had. So many unborn children. For those of you, the childless generation, we are here for you, standing by your side, here and now. And the cycle of our mourning will never be completed. Our continuous grieving is the grieving of a people that is missing so many of its members. And we--the living--each year, we bring children into the world. So many of them bear your name, Moishe, to honor the dead, and we hope that they will experience all the things we wanted for you but you never had. Our children are continuing in your footsteps, from the point at which your life was cut off. They will never know you, and we silently pray: That they will carry your name but please God, that they will know a different fate. That they will live, and know goodness and peace. Each year we promise our children the things that our mothers promised us: Son, when you are all grown up, there won't be violence in the world. When you grow up, there will be peace in our world. And we also promise our children something that we may not accomplish. Will our grandchildren enjoy the redemption on behalf of our dead loved ones? I really don't know what to say to you. You who come here every year. You who come here to unite with the memory of those no longer with us. We have come here because of the togetherness, and the awesome atmosphere of condolence. We want to be with you today, in this gathering of mourners. It is here, and in every place that we take our revenge. On that painful and horrifying day, at the moment before the flames engulfed you, we cried out--revenge! Oh God of Vengeance--Hashen--appear! And, as time passed, something deep inside of us cried out to us, and we pray to God, but differently: Oh God, full of mercy--Father of Compassion! Because Jewish revenge is not taken by shedding blood. We do not want to resemble our killers when we take our revenge. Our revenge is different. We remember, and never forget. We remember the murderers, and know that we can never forget that in every man there is an evil inclination. We remember the march of the dead, and we march for the living. We remember the glorious legacy of communities that were ruthlessly executed. And we swear that our grandchildren and great-grandchildren will never, ever forget you, Moishe. The world, it seems, wants us to accept that your souls and the worldly goods you worked for were taken away from us forever. Your souls are protected by God, and your spirit rests in the next world. But we will have your goods returned. Because justice was not fully served on the day of surrender in 1945. We have not forgotten the despondency of the final moments. And we have demands from and messages to the once Nazi- occupied European countries, and the neutral nations: You will not benefit from the deposits or the possessions of those who were murdered. We are all too aware of the ``dormant'' accounts. There are no dormant accounts. And there are no dormant memories. Because each individual is a messenger, and there is no man who does not have a mission. And, it is not our mission because of the individual or for the individual. Rather, this is the mission of the individual on behalf of his people. One individual comes to the world to teach, and another to learn. One person comes into the world to cry, and the other to console. One person is born to live, and yet you were born and then died so soon. Was this your mission? You died so that we could live. And we were born to remember. Today, we are your messengers, Messengers who must remember to live by your commandments. To have the ultimate Jewish revenge--the revenge of peace, as in the Jewish prayers that we say three times per day: Bring upon us peace and goodness and a blessed life, grace and kindness, upon us and the entire House of Israel, amen. Bless us our Father, each of us as one in the glorious light of your powers, because the light of your powers gave us the Torah and the love of kindness, and the love of charity and blessings and mercy and life and peace. And it would please you to bless us, and to bless your entire House of Israel at every moment and at every hour and the strength of your peace be upon us. Blessed art thou, our Lord who blesses his people of Israel in peace. Amen. May their memories be a blessing. Welcoming Remarks by Benjamin Meed, Chairman, Days of Remembrance, U.S. Holocaust Memorial Council Members of the Diplomatic Corps, distinguished Members of Congress, Honorable members of the Holocaust Memorial Council, Fellow Survivors, Dear Friends. When Congress created the United States Holocaust Memorial Council in 1980, there were only a few Yom Hashoah observances held in communities of Holocaust survivors living in this country. You, the Members of Congress, entrusted us, the members of the Council, with the responsibility of teaching American citizens about the Holocaust. We have complied with your mandate by building the Holocaust Memorial Museum, which most of you have visited, and by leading the nation in annual civic commemorations, known as the Days of Remembrance. I am privileged to tell you that now, during this week of Holocaust Remembrance, more than a million people from all the states of our great Union will come together in Memory. We are joined by Governors, Mayors and community leaders as well as professors, teachers and schoolchildren. Earlier today, the entire nation of the State of Israel stopped and stood silent in Remembrance. We are together in dedication to Memory and aspiration for Peace. Over the past fifteen years that we have gathered to commemorate in this Rotunda, we have observed an anniversary--the fiftieth year of a milestone event: the Night of Broken Glass, the Warsaw Ghetto Uprising, the encounter between American soldiers and Holocaust survivors. This year we confront the anniversary of the aftermath of the Holocaust: what happened as we survivors attempted to rebuild our lives. This was not an easy thing to do. It was years before we could ask a policeman for directions. Why? Because he was wearing a uniform. For a long time, it took great courage just to answer a knock on the front door. It is true that we looked to the future in hope, but the shadows of the past remained. And so we dedicated our lives to Remembrance--remembrance of all those for whom the future had been destroyed by the Shoah. Rebuilding became a central concern for the world-- rebuilding a Europe devastated by war; rebuilding the shattered image of humanity in a world of Auschwitz, Belzec and Treblinka. America understood the necessity of encouraging the European nations to work together for economic recovery. Thus the Marshall Plan was implemented, and the groundwork for the Europe of today was laid. The Allied leaders also realized that to build a sound future, there had to be an accounting for crimes so great as to be unparalleled in recorded history. Nuremberg, the city where Nazi party pageants had been held, the place where the Nuremberg Laws were promulgated and the German legal system became an accomplice to mass murder, was chosen as the site for the first, joint International Military Tribunal. In its charter, three forms of crimes were specified. Two of them were ancient, but one was unprecedented. Crimes against the peace and war crimes were familiar terms to all of us, but Crimes Against Humanity was a new category. It described mass murder and extermination, enslavement and deportation based on racial, religious, or political affiliation. Through the proceedings of the Nuremberg Trials, we came to know the perpetrators. Documents that the killers had so carefully created were gathered and studied. In the defense testimony of accused doctors, judges and industrial leaders as well as military generals, Einsatzgruppen commanders, and concentration camp commandants, the world learned ``how the crimes were committed.'' We also learned that tens of thousands of ordinary Germans from all walks of life had willingly participated in the annihilation process. Ironically, those on trial pled not guilty to the charges, they did not claim innocence. Rather, they attempted to shift the burden of responsibility to those of higher rank. Was justice achieved? Certainly not! For what meaning can justice have in a world of Majdanek, Chelmno and Sobibor? What punishment is appropriate for the crimes? Still, the attempt to speak of justice was important. It was a way of setting limits, of saying there are crimes so evil and so enormous that civilization itself is on trial. For such crimes, there must be punishment. For many years at hundreds of commemorations around the world, we have pleaded Zachor--Remember. Remember the children of Teresienstadt. Remember the fighters of Warsaw. Remember the poets of Vilna. Remember all of our lost loved ones. Today, let us also not forget the killers. Let us not forget their evil and their infamy. Let us not forget them because they express what happens to the power of government and the majesty of legal systems that become detached from moral values and humane goals. The same powers that heal and help can also humiliate and decimate. There is a difference; there must be a difference: and you and I must make sure that we make a difference. With these words, here in this great Hall of democracy, let us recommit ourselves to the principles of justice and liberty for all--and to Remembrance--now and forever. Thank you.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, I rise today to mark the 81st anniversary of the Armenian genocide that took place during the final years of the Ottoman Empire. From 1915 to 1923, some 1,500,000 persons of Armenian ancestry are reported to have died at the hands of their Ottoman rulers, through a deliberate policy of deportation, confiscation of property, slave labor, and murder. Although we now recognize this policy as genocide, no such word existed at the time of its commission. The American Ambassador to the Sublime Porte, New Yorker Henry Morgenthau, described the Ottoman atrocities as a ``campaign of race extermination.'' A chilling prologue, if you will, to the twentieth century. The word ``genocide'' comes from the Greek genos (clan or breed) and the Latin caedere (to kill). It was coined in 1944 by Raphael Lemkin, a Polish Jew who emigrated to the United States in 1941. In the early 1930's, after studying the slaughter of the Armenians, Lemkin began a campaign to outlaw the crime now known as genocide. He took his case before the Legal Council of the League of Nations in 1933 but the learned jurists would not heed him. Finally--after the Nazi Holocaust shook the conscience of the world--the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948. The first human rights treaty of the new world body was finally ratified by the United States in 1988. Raphael Lemkin's legacy. During the Days of Remembrance Commemoration in 1981, Elie Wiesel stated: Before the planning of the Final Solution, Hitler asked, ``Who remembers the Armenians?'' He was right. No one remembered them, as no one remembered the Jews. Rejected by everyone, they felt expelled from history. Mr. President, today the United States Senate pauses to remember the Armenian victims of genocide. But remembrance alone is not enough. Remembrance must be the first step toward justice and, ultimately, toward prevention of future atrocities. On December 13, 1995, the Senate adopted Senate Joint Resolution 44, concerning the deployment of United States Armed Forces in Bosnia and Herzegovina. The resolution affirmed that the population of Bosnia and Herzegovina had ``suffered egregious violations of the international law of war including * * * the Convention on the Prevention and Punishment of the Crime of Genocide.'' To redress and punish these crimes, the United Nations established the International Criminal Tribunal for the Former Yugoslavia. The United States must continue to support the work of the Tribunal and insist on cooperation with the Tribunal as mandated by the Dayton Accords. The horrors of this century--beginning with the Armenian genocide-- gave birth to a new vocabulary of inhumanity. As this genocidal century draws to a close, let us remember these events, mourn the victims, and strengthen our resolve that such outrages never again be perpetrated against the human race. I thank the Chair and I ask that the text of Ambassador Henry Morgenthau's telegram of July 16, 1915, and the 'genocide' entry in the Fontana Dictionary of Modern Thought be printed in the Record. The text follows: [Telegram received from Constantinople, July 16, 1915] Secretary of State, Washington. Deportation of and excesses against peaceful Armenians is increasing and from harrowing reports of eye witnesses it appears that a campaign of race extermination is in progress under a pretext of reprisal against rebellion. Protests as well as threats are unavailing and probably incite the Ottoman government to more drastic measures as they are determined to disclaim responsibility for their absolute disregard of capitulations and I believe nothing short of actual force which obviously United States are not in a position to exert would adequately meet the situation. Suggest you inform belligerent nations and mission boards of this. American Ambassador, Constantinople.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, last evening the Senate adopted a proposal I introduced in September of last year to curb the use of foreign trusts to avoid U.S. tax responsibilities. The Treasury Department first called attention to this problem early in 1995. Thereafter, I worked with Representative Gibbons to develop legislation to prevent taxpayers from evading taxes by transferring assets offshore. Legislation very similar to the bill that I introduced (S. 1261) was included in the Senate-passed health insurance reform bill late yesterday. There is disturbing evidence of the extent of tax avoidance through the use of foreign trusts. Although taxpayers are required to report the value of their assets held in foreign trusts, only $1.5 billion were reported in 1993, according to the IRS. Yet it is estimated that total U.S. source funds held abroad in tax haven jurisdictions are in the hundreds of billions. In 1989, the New York Times reported that financial institutions in the Cayman Islands, Luxembourg, and the Bahamas had $240, $200, and $180 billion, respectively, on deposit from the U.S. New York Times, October 29, 1989, page 10. More recently, Barron's estimated that a total of $440 billion was on deposit in the Cayman Islands in 1993, with 60 percent of that amount--$264 billion--coming from the U.S. Barron's, January 4, 1993, page 14. To put this in some perspective, Barron's calculated that there was more American money on deposit in the Cayman Islands than in all of the commercial banks in California. Although only a portion of U.S. funds abroad are held in foreign trusts, the Treasury Department estimates that tens of billions of dollars are held in offshore asset protection trusts established by U.S. citizens and residents. Once assets move offshore, it has been difficult for the IRS to enforce the tax laws. Foreign bank secrecy laws preclude the IRS from uncovering the information necessary to determine what is owed. Central to the legislative solution that I have proposed are provisions designed to provide the IRS with better information on foreign trusts. The bill would substantially strengthen the obligations of taxpayers to report information to the IRS and impose penalties with genuine deterrent effect for failure to do so. Among other changes, the bill includes new rules designed to lead most foreign trusts established by U.S. persons to appoint a U.S. agent that can provide trust information to the IRS. The bill would also close a number of loopholes in the existing grantor trust tax rules. These rules specify when the existence of a trust will be ignored for tax purposes because the creator of the trust retains sufficient control over the assets transferred to be treated as continuing to own the assets. For example, a foreign person; generally not taxable in the United States, transferring assets to a trust for the benefit of U.S. persons generally would not be treated as the tax owner of the assets in the trust unless the trust was fully revocable. Instead, the U.S. beneficiary receiving income from the trust would be taxed on receipt of that income. I am pleased that the Senate has adopted these changes. These are practical rules that would dramatically improve tax compliance without unduly burdening legitimate financial transactions.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, the Dole/Roth amendment adopted earlier today includes a provision designed to address the problem of renunciation of U.S. citizenship by Americans who move abroad in order to avoid U.S. taxation. On April 6, 1995, shortly after this issue first came to light, I introduced S. 700, a bill to close the loophole in the Tax Code that permits expatriates, as they have come to be called, from evading U.S. taxation. I said here on the floor that the Senate would act expeditiously to end this abuse, and would act in a careful and judicious manner to do so. The amendment before us today, which includes a modification of S. 700, would do just that. Although expatriation to avoid taxes occurs infrequently, it is a genuine abuse. The Tax Code currently contains provisions, dating back to 1966, intended to prevent tax-motivated relinquishment of citizenship, but these provisions have proven difficult to enforce and are easily evaded. One international tax expert described avoiding them as ``child's play.'' Individuals with substantial wealth can, by renouncing U.S. citizenship, avoid paying taxes on gains that accrued during the period that they acquired their wealth--and while they were afforded the many benefits and advantages of U.S. citizenship. Moreover, even after renunciation, these individuals are permitted to keep residences and reside in the United States for up to 120 days per year without incurring U.S. tax obligations. Indeed, certain wealthy individuals have renounced their U.S. citizenship and avoided their tax obligations while still maintaining their families and homes in the United States. They need only take care to avoid being in the United States for more than 120 days each year. Meanwhile, ordinary Americans who remain citizens continue to pay taxes on their gains when assets are sold or when estate taxes become due at death. I regret to say that the expatriation issue has been the subject of more controversy than it probably deserves, so in the interest of setting the record straight, I will briefly review the history of its consideration in the Congress. On February 6, 1995, the President announced a proposal to address expatriation in his fiscal year 1996 budget submission. Three weeks later, on March 15, 1995, during Finance Committee consideration of legislation to restore the health insurance deduction for the self-employed, I offered a modified version of the administration's expatriation tax provision as an amendment to the bill. My amendment would have substituted the expatriation proposal for the repeal of minority broadcast tax preferences as a funding source for the bill. The amendment failed in the face of united opposition by members of the majority on the Committee. The vote against the amendment was 11-9. Subsequently, Senator Bradley offered the expatriation provision as a free-standing amendment, with the revenues it raised to be dedicated to deficit reduction. Senator Bradley's amendment passed by voice vote. That is how the expatriation tax provision was added to the bill that came before the Senate. After the Finance Committee reported the bill, but before full Senate action and before our conference with the House, the Finance Committee held a hearing to review further the issues raised by expatriation. At our hearing, we heard criticisms of some technical aspects of the provision, as well as testimony raising the issue of whether the provision comported with Article 12 of the International Covenant on Civil and Political Rights, which the United States ratified in 1992. Section 2 of Article 12 states: ``Everyone shall be free to leave any country, including his own.'' Robert F. Turner, a professor of international law at the U.S. Naval War College, testified that the expatriation provision was problematic under the Covenant because it constituted a legal barrier to the right of citizens to leave the United States. The State Department's legal experts disagreed, as did two other outside experts who provided written opinions to the Committee: Professor Paul B. Stephan III, a specialist in both international law and tax law at the University of Virginia School of Law; and Mr. Stephen E. Shay, who served as International Tax Counsel at the Department of the Treasury in the Reagan administration. Given this division in authority, it seemed clear that the Senate should not act improvidently on the matter. Genuine questions of human rights under international law, and the solemn obligations of the United States under treaties, had been raised. We therefore sought the views of other experts. Opinions concluding that the expatriation provision did not violate international law were received from Professor Detlev Vagts of Harvard Law School and Professor Andreas F. Lowenfeld of New York University School of Law. The State Department issued a lengthier analysis supporting the legality of the provision, and the American Law Division of the Congressional Research Service reached a like conclusion. However, there were dissenting views, most notably the powerful opinion of Professor Hurst Hannum of the Fletcher School of Law and Diplomacy at Tufts University, who first wrote to me on March 24, 1995. This is where things stood when the House-Senate conference met on March 28, 1995. Although the weight of authority appeared to support the validity of the provision under international law, very real questions remained. Yet the underlying bill had to move at great speed. As my colleagues well know, the legislation restoring the health insurance deduction for the self-employed for calendar year 1994 needed to be passed and signed into law well in advance of the April 17, 1995 tax filing deadline, so that self-employed persons would have time to prepare and file their 1994 tax returns. The conference committee had to decide immediately whether to retain the expatriation provision; there was no time for further inquiry into its validity under international law. We accordingly chose not to risk making the wrong decision with respect to international law and human rights, and so the expatriation provision was not included in the conference report. The conferees instead adopted a provision directing the Joint Committee on Taxation to study the matter and report back. This decision, which was the only prudent one at the time, met with some not very pleasant criticism in the Senate. This was surprising, since I believed it was axiomatic that government should proceed with great care when dealing with human rights--particularly the rights of persons who are despised. The persons affected by the expatriation proposal--millionaires who renounce their citizenship for money-- certainly fall into that category. Since that time, a general consensus has developed that the provision does not conflict with the obligations of the United States under international law. Professor Hannum, after receiving additional and more specific information about the expatriation tax, wrote a second letter of March 31, 1995 stating that he was now ``convinced that neither its intention nor its effect would violate present U.S. obligations under international law.'' In the interim, there has been time to consider other approaches to the problem. On June 1, 1995, the Joint Committee on Taxation published its report on the tax treatment of expatriation. Shortly thereafter, on June 9, 1995, Chairman Archer introduced an expatriation bill that adopted a different approach than S. 700, the bill introduced by the Senator from New York. The Archer bill, rather than impose a tax on accrued gains, would build on the current law approach of taxing only a portion of the income of an expatriate received during the 10-year period following expatriation. A version very similar to the Archer bill was included in House-passed version of the Balanced Budget Act of 1995. We held a second Finance Committee hearing on expatriation on July 11, 1995 to consider the two competing approaches. Soon thereafter, the Senate in the Senate-passed version of the Balanced Budget Act of 1995 adopted the accrued gains approach from my bill, rather than the House alternative, as the superior response to the problem. During the conference on the Balanced Budget Act of 1995, the conferees opted for the House approach. This was, I believe, a serious error. Fortunately, that version did not become law because the President vetoed the conference agreement. The conferees on the pending bill will be faced with the same choice. The House version of the expatriation provision is included in the House-passed companion to the Kassebaum-Kennedy bill. We ought not repeat the mistake made in the Balanced Budget Act. I am convinced that the House approach has serious defects and would fail to eliminate the very substantial tax advantages that currently accrue to those willing to give up their citizenship. Under the House proposal, several categories of taxpayers would continue to owe no tax at all should the IRS be unable to prove a tax avoidance motive for expatriating. As under current law, taxpayers who are patient would avoid all tax on accrued gains by simply holding their assets for 10 years. A wealthy expatriate in need of funds during the 10-year period could simply borrow money using his or her assets as security. Since the income from foreign assets generally would remain exempt as under current law, clever tax practitioners would continue to find ways to convert U.S. assets into foreign assets in order to avoid tax on the income earned during the 10-year period. The House approach also would be destined to fail because it relies on the voluntary payment of taxes by people who have moved beyond the reach of U.S. courts. In contrast, the Senate version would collect tax while the individual is still subject to the taxing power of the United States, which is surely a more administrable approach. A separate objection to the House bill is that it would unilaterally override existing tax treaties. In its report on expatriation, the Joint Tax Committee staff stated that the House version may ultimately require that as many as 41 of our 45 existing tax treaties be renegotiated and that it might be necessary for the United States to forego benefits to accomplish renegotiation. This is a serious matter. Article VI of our Constitution states: . . . [A]ll Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land. Further, our treaties come into being through a singular exacting sequence. Treaties are entered into by the United States with other nations either directly or through adherence to a common document. They are signed by a member of the executive branch. Thereafter, the Senate of the United States must by resolution, two-thirds of the Senators present concurring therein, give its advice and consent to ratification. This advice and consent having been given--by an extraordinary majority--the President then ratifies and confirms the treaty in an instrument of ratification. Only at that point shall the said treaty become ``the supreme Law of the Land.'' Matters that survive this singularly exacting process should not be abrogated lightly. One final point, of utmost importance. During the time we have taken to write this law carefully and well, billionaires have not been slipping through the loophole and escaping tax by renouncing their citizenship. The President announced the original proposal on February 6, 1995 and made it effective for taxpayers who initiate a renunciation of citizenship on or after that date. This was an entirely appropriate way to put an end to an abusive practice under current law. Likewise all the proposals considered by the Senate, including my bill S. 700, used February 6, 1995 as their effective date. The House conferees on the self-employed bill had proposed moving the effective date forward to March 15, 1995, the date of Senate Finance Committee action on the provision. But the two chairmen of the tax-writing committees ultimately--and wisely--resisted that overture, and issued a joint statement giving notice that February 6, 1995 would be the effective date of any legislation affecting the tax treatment of those who relinquish citizenship. Now that the Senate has had adequate opportunity to fully explore the best way to address the expatriation problem, it is time to act. As the first Senator to have introduced legislation to end tax avoidance by so-called expatriates, and as one who urged that it be acted upon by the Senate expeditiously, I am pleased that the Dole/Roth amendment incorporates the expatriation changes I have favored. I hope that the conferees will retain the superior Senate expatriation provision, and that it will be enacted as soon as possible.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, the distinguished ranking member and manager have asked that I yield myself such time as I may require, and I add with the proviso, as much time as he wishes. I will obviously yield to him.

Mr. MOYNIHAN. Mr. President, we need to deal resolutely with terrorism. And we will. But if, in the guise of combating terrorism, we diminish the fundamental civil liberties that Americans have enjoyed for two centuries, then the terrorists will have won. With deep regret, but with a clear conscience, I will vote against the conference report to S. 735 as now presented. Exhibit 1 Emergency Committee To Save Habeas Corpus, May 23, 1995. The President, The White House, Washington, DC. Dear Mr. President: We understand that the Senate may act, as soon as tomorrow, on the habeas corpus provisions in Senator Dole's terrorism legislation. Among these provisions is a requirement that federal courts must defer to state courts incorrectly applying federal constitutional law, unless it can be said that the state ruling was ``unreasonable'' incorrect. This is a variation of the proposal by the Reagan and Bush administrations to strip the federal courts of the power to enforce the Constitution when the state court's interpretation of it, though clearly wrong, had been issued after a ``full and fair adjudication.'' The Emergency Committee was formed in 1991 to fight this extreme proposal. Our membership consists of both supporters and opponents of the death penalty, Republicans and Democrats, united in the belief that the federal habeas corpus process can be dramatically streamlined without jeopardizing its constitutional core. At a time when proposals to curtail civil liberties in the name of national security are being widely viewed with suspicion, we believe it is vital to ensure that habeas corpus--the means by which all civil liberties are enforced--is not substantially diminished. The habeas corpus reform bill you and Senator Biden proposed in 1993, drafted in close cooperation with the nation's district attorneys and state attorneys general, appropriately recognizes this point. It would codify the long-standing principle of independent federal review of constitutional questions, and specifically reject the ``full and fair'' deference standard. Independent federal review of state court judgments has existed since the founding of the Republic, whether through writ of error or writ of habeas corpus. It has a proud history of guarding against injustices born of racial prejudice and intolerance, of saving the innocent from imprisonment or execution, and in the process, ensuring the rights of all law-abiding citizens. We in the Emergency Committee have fought against proposals to strip the federal courts of power to correct unconstitutional state court actions, alongside other distinguished groups such as the NAACP Legal Defense Fund, the Southern Christian Leadership Conference, the American Bar Association, former prosecutors, and the committee chaired by Justice Powell on which all subsequent reform proposals have been based. We have met with Attorney General Reno, testified in Congress, and successfully argued in the Supreme Court against the adoption of a deference standard, in Wright v. West. We hope you will use the power of your office to ensure that the worthwhile goal of streamlining the review of criminal cases is accomplished without diminishing constitutional liberties. If it would be helpful, we would be pleased to meet with you to discuss this vitally important matter personally. Sincerely, Benjamin Civiletti. Edward H. Levi. Nicholas DeB. Katzenbach. Elliot L. Richardson. Statements on Proposals Requiring Federal Courts in Habeas Corpus Cases To Defer to State Courts on Federal Constitutional Questions ``Capital cases should be subject to one fair and complete course of collateral review through the state and federal system. . . . Where the death penalty is involved, fairness means a searching and impartial review of the propriety of the sentence.''--Justice Lewis F. Powell, Jr., presenting the 1989 report of the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, chaired by him and appointed by Chief Justice William Rehnquist ``The federal courts should continue to review de novo mixed and pure questions of federal law. Congress should codify this review standard. . . . Senator Dole's bill [containing the ``full and fair'' deference requirement] would rather straightforwardly eliminate federal habeas jurisdiction over most constitutional claims by state inmates.''--150 former state and federal prosecutors, in a December 7, 1993 letter to Judiciary Committee Chairmen Biden and Brooks ``Racial distinctions are evident in every aspect of the process that leads to execution. . . . [W]e fervently and respectfully urge a steadfast review by federal judiciary in state death penalties as absolutely essential to ensure justice.''--Rev. Dr. Joseph E. Lowery, President, Southern Christian Leadership Conference, U.S. House Judiciary Committee hearing on capital habeas corpus reform, June 6, 1990 ``The State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right.''--Justice Felix Frankfurter, for the Court, in Brown v. Allen, 344 U.S. 443, 508 (1953) ``[There is no case in which] a state court's incorrect legal determination has ever been allowed to stand because it was reasonable. We have always held that federal courts, even on habeas, have an independent obligation to say what the law is.''--Justice Sandra Day O'Connor, concurring in Wright v. West, 112 S.Ct. 2482 (1992), citing 29 Supreme Court cases and ``many others'' to reject the urging of Justices Thomas, Scalia and Rehnquist to adopt a standard of deference to state courts on federal constitutional matters.

Mr. MOYNIHAN. Mr. President, let me read excerpts from the letter: The habeas corpus provisions in the Senate bill . . . are unconstitutional. Though intended in large part to expedite the death penalty review process, the litigation and constitutional rulings will in fact delay and frustrate the imposition of the death penalty . . . The constitutional infirmities . . . violate the Habeas Corpus Suspension Clause, the judicial powers of Article III and due process . . . . . . A measure is subject to proscription under the due process clause if it ``offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,'' as viewed by ``historical practice.'' That is Medina versus California, a 1992 decision. To continue, Independent federal court review of the constitutionality of state criminal judgments has existed since the founding of the Nation, first by writ of error, and since 1867 by writ of habeas corpus. Nothing else is more deeply rooted in America's legal traditions and conscience. There is no clause in which ``a state court's incorrect legal determination has ever been allowed to stand because it was reasonable.'' That is Justice O'Connor, in Wright versus West. She goes on, as the attorneys general quote, We have always held that federal courts, even on habeas, have an independent obligation to say what the law is. If I may interpolate, she is repeating the famous injunction of Justice Marshall in Marbury versus Madison. The attorneys general go on to say: Indeed, Alexander Hamilton argued, in The Federalist No. 84, that the existence of just two protections--habeas corpus and the prohibition against ex post facto laws--obviated the need to add a Bill of Rights to the Constitution. The letter from the attorneys general continues, but that is the gist of it. I might point out that there was, originally, an objection to ratification of the Constitution, with those objecting arguing that there had to be a Bill of Rights added. Madison wisely added one during the first session of the first Congress. But he and Hamilton and Jay, as authors of the Federalist papers, argued that with habeas corpus and the prohibition against ex post facto laws in the Constitution, there would be no need even for a Bill of Rights. We are glad that, in the end, we do have one. But their case was surely strong, and it was so felt by the Framers. To cite Justice O'Connor again: A state court's incorrect legal determination has never been allowed to stand because it was reasonable. Justice O'Connor went on: We have always held that Federal courts, even on habeas, have an independent obligation to say what the law is. Mr. President, we can fix this now. Or, as the attorneys general state, we can ``wait through several years of litigation and confusion before being sent back to the drawing board.'' I fear that we will not fix it now. The last time this bill was before us, there were only eight Senators who voted against final passage. We Americans think of ourselves as a new nation. We are not. Of the countries that existed in 1914, there are only eight which have not had their form of government changed by violence since then. Only the United Kingdom goes back to 1787 when the delegates who drafted our Constitution established this Nation, which continues to exist. In those other nations, sir, a compelling struggle took place, from the middle of the 18th century until the middle of the 19th century, and beyond into the 20th, and even to the end of the 20th in some countries, to establish those basic civil liberties which are the foundation of political liberties and, of those, none is so precious as habeas corpus, the ``Great Writ.'' Here we are trivializing this treasure, putting in jeopardy a tradition of protection of individual rights by Federal courts that goes back to our earliest foundation. And the virus will spread. Why are we in such a rush to amend our Constitution? Eighty-three amendments have been offered in this Congress alone. Why do we tamper with provisions as profound to our traditions and liberty as habeas corpus? The Federal courts do not complain. It may be that if we enact this, there will be some prisoners who are executed sooner than they otherwise would have been. You may take satisfaction in that or not, as you choose, but we will have begun to weaken a tenet of justice at the very base of our liberties. The virus will spread. This is new. It is profoundly disturbing. It is terribly dangerous. If I may have the presumption to join in the judgment of four attorneys general, Mr. Civiletti, Mr. Levi, Mr. Katzenbach, and Mr. Richardson-- and I repeat that I have served in administrations with three of them-- this matter is unconstitutional and should be stricken from this measure. Fourteen years ago, June 6, 1982, to be precise, I gave the commencement address at St. John University Law School in Brooklyn. I spoke of the proliferation of court-curbing bills, at that time, but what I said is, I feel, relevant to today's discussion. I remarked, . . . some people--indeed, a great many people--have decided that they do not agree with the Supreme Court and that they are not satisfied to Debate, Legislate, Litigate. They have embarked upon an altogether new and I believe quite dangerous course of action. A new triumvirate hierarchy has emerged. Convene (meaning the calling of a constitutional convention), Overrule (the passage of legislation designed to overrule a particular Court ruling, when the Court's ruling was based on an interpretation of the Constitution), and Restrict (to restrict the jurisdiction of certain courts to decide particular kinds of cases). Perhaps the most pernicious of these is the attempt to restrict courts' jurisdictions, for it is . . . profoundly at odds with our nation's customs and political philosophy. It is a commonplace that our democracy is characterized by majority rule and minority rights. Our Constitution vests majority rule in the Congress and the President while the courts protect the rights of the minority. While the legislature makes the laws, and the executive enforces them, it is the courts that tell us what the laws say and whether they conform to the Constitution. This notion of judicial review has been part of our heritage for nearly two hundred years. There is not a more famous case in American jurisprudence than Marbury v. Madison and few more famous dicta than Chief Justice Marshall's that It is emphatically the province and the duty of the judicial department to say what the law is. But in order for the court to interpret the law, it must decide cases. If it cannot hear certain cases, then it cannot protect certain rights. Mr. President, I am going to ask unanimous consent that a number of materials appear in the Record following my remarks. I apologize for the length, but if we are going to trifle with the Great Writ of Liberty, the record needs to be complete. The materials are as follows: a May 23, 1995 letter from the Emergency Committee to Save Habeas Corpus to the President and a one-page attachment; a June 1, 1995 letter from the Emergency Committee to me; a March 13, 1996 New York Times editorial entitled, ``The Wrong Answer to Terrorism''; an April 8, 1996 Times editorial entitled, ``Grave Trouble for the Great Writ''; three Anthony Lewis op-eds which appeared in the Times on July 7, 1995, December 8, 1995, and April 15, 1996 entitled ``Mr. Clinton's Betrayal'', Is It A Zeal To Kill?'', and ``Stand Up For Liberty'', respectively; and the third paragraph of the March 12, 1996 ``Statement of Administration Policy'' concerning H.R. 2703--the House version of the counter-terrorism bill--which reads, in part: ``H.R. 2703 would establish a standard of review for Federal courts on constitutional issues that is excessively narrow and subject to potentially meritorious constitutional challenge.'' Mr. President, I ask unanimous consent that these materials be printed in the Record following my remarks.

Mr. MOYNIHAN. Mr. President, this is a proposal to strike an unprecedented provision--unprecedented until the 104th Congress--to tamper with the constitutional protection of habeas corpus. The provision reads: (d) An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--``(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or ``(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. We are about to enact a statute which would hold that constitutional protections do not exist unless they have been unreasonably violated, an idea that would have confounded the framers. Thus we introduce a virus that will surely spread throughout our system of laws. Article I, section 9, clause 2 of the Constitution stipulates, ``The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.'' We are at this moment mightily and properly concerned about the public safety, which is why we have before the Senate the conference report on the counterterrorism bill. But we have not been invaded, Mr. President, and the only rebellion at hand appears to be against the Constitution itself. We are dealing here, sir, with a fundamental provision of law, one of those essential civil liberties which precede and are the basis of political liberties. The writ of habeas corpus is often referred to as the ``Great Writ of Liberty.'' William Blackstone called it ``the most celebrated writ in English law, and the great and efficacious writ in all manner of illegal imprisonment.'' It is at the very foundation of the legal system designed to safeguard our liberties. I repeat what I have said previously here on the Senate floor: If I had to choose between living in a country with habeas corpus but without free elections, or a country with free elections but without habeas corpus, I would choose habeas corpus every time. To say again, this is one of the fundamental civil liberties on which every democratic society of the world has built political liberties that have come subsequently. I make the point that the abuse of habeas corpus--appeals of capital sentences--is hugely overstated. A 1995 study by the Department of Justice's Bureau of Justice Statistics determined that habeas corpus appeals by death row inmates constitute 1 percent of all Federal habeas filings. Total habeas filings make up 4 percent of the caseload of Federal district courts. And most Federal habeas petitions are disposed of in less than 1 year. The serious delays occur in State courts, which take an average of 5 years to dispose of habeas petitions. If there is delay, the delay is with the State courts. It is troubling that Congress has undertaken to tamper with the Great Writ in a bill designed to respond to the tragic circumstances of the Oklahoma City bombing last year. Habeas corpus has little to do with terrorism. The Oklahoma City bombing was a Federal crime and will be tried in Federal court. Nothing in our present circumstance requires the suspension of habeas corpus, which is the practical effect of the provision in this bill. To require a Federal court to defer to a State court's judgment unless the State court's decision is unreasonably wrong effectively precludes Federal review. I find this disorienting. Anthony Lewis has written of the habeas provision in this bill: ``It is a new and remarkable concept in law: that mere wrongness in a constitutional decision is not to be noticed.'' If we agree to this, to what will we be agreeing next? I restate Mr. Lewis' observation, a person of great experience, a long student of the courts, ``It is a new and remarkable concept in law: that mere wrongness in a constitutional decision is not to be noticed.'' Backward reels the mind. On December 8, four United States attorneys general, two Republicans and two Democrats, all persons with whom I have the honor to be acquainted, Benjamin R. Civiletti, Jr., Edward H. Levi, Nicholas Katzenbach, and Elliot Richardson--I served in administrations with Mr. Levi, Mr. Katzenbach, and Mr. Richardson; I have the deepest regard for them--wrote President Clinton. I ask unanimous consent that the full text be printed in the Record.

Mr. MOYNIHAN. Mr. President, I ask for the yeas and nays.

Mr. MOYNIHAN. I move to reconsider the vote.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, I thank him for his thoughtful, careful response. I would like to make the point that my concern is not with the death penalty but with habeas corpus itself. I have had a long experience, as the manager has had, with problems of terrorism. As I said a moment ago, the only time the terrorists ever win is when they begin to make you change your own fundamental political and judicial processes, and that is what I fear this will do. It is of some relief to hear the distinguished manager's statement that the Great Writ will remain substantially intact.

Mr. MOYNIHAN. Mr. President, might I ask for 30 seconds to thank my friend and respond?

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

Mr. MOYNIHAN

Mr. MOYNIHAN. I thank the Senator. It is none too soon.

Mr. MOYNIHAN. Does the leader have in mind to schedule hearings and to ask the administration officials to testify?

Mr. MOYNIHAN. Mr. President, will the majority leader yield for a question?

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, on rollcall vote 50, I voted yea. My intention was to vote nay. I ask unanimous consent that I be permitted to change my vote which in no way would change the outcome of the vote.