Samuel Nunn

Mr. NUNN

Mr. NUNN. Mr. President, I urge my colleagues to support Senator Biden's motion which he will, I understand, make in a few minutes--I do not think it has yet been made--to recommit the conference report because it fails to address a very significant gap in the law which we corrected when we passed the Senate bill regarding the use of chemical and biological weapons of mass destruction in criminal terrorist activities. The Armed Forces have special capabilities, and they are the only people that have special capabilities to counter nuclear, biological, and chemical weapons. They are trained and equipped to detect, suppress, and contain these dangerous materials in hostile situations. The police authorities of our country and the fire departments of our country do not have the capability to deal with chemical and biological attacks or the threat of those attacks. They do not have the equipment. They do not have the protective gear. We have had four hearings in the last 6 weeks in the Permanent Subcommittee on Investigations, of which I am the ranking member and Senator Roth is the chairman. Let us be very clear. With the testimony from law enforcement officials, from fire officials, from city officials, State officials, and from our own people in the Federal Government, that, if there were a chemical or biological attack in this country, we would have as the first victims those who came to the rescue. It would be those personnel coming to the rescue of those innocent victims who are caught in that situation that would also become victims themselves because they are not equipped to detect. They are not equipped to really deal with and they certainly are not equipped to withstand the lethal capability of chemical and biological weapons. Over a period of time they may be able to. One of the things I am going to be talking about in the weeks ahead is a package of legislation which I hope Senator Lugar and I will be sponsoring. One of the things we are going to need to do is to give, I think, our military both the capability with funding and also the authority and responsibility to help begin training our police and law enforcement officials around the country. It is going to take a long time. We are in a different era now, Mr. President. One of the things that many people do not recognize after the attack in Tokyo where the avowed goal of the group that had really prepared very extensive capabilities for chemical warfare on their own people is that if they had the kind of delivery system that a few weeks later they might have had, instead of 15 or 20 people being killed and several hundred being injured, there literally would have been tens of thousands of deaths right there in Tokyo. We are in that era now. A lot of people do not also understand that in the World Trade Center bombing there was really very strong evidence that a chemical component was in the explosive material. There was an attempted effort at chemical attack there also, but the chemical element was consumed by the huge fire and explosion. So we have had that attempt also in this country. My point is that it is a very dangerous omission in not giving the kind of clear authority in this conference report that we had in the Senate bill. At the present time the statutory authority to use the Armed Forces in situations involving the criminal use of weapons of mass destruction extends only to nuclear material. Section 831 of title 18, United States Code, permits the Armed Forces to assist in dealing with crimes involving nuclear materials when the Attorney General and the Secretary of Defense jointly determine that there is an emergency situation requiring military assistance. There is no similar authority to use a special expertise in the Armed Forces in circumstances involving the use of chemical and biological weapons of mass destruction. In the wake of the devastating bombing of the Federal building in Oklahoma City and also the World Trade Center, with the tragic loss of life in Oklahoma and the disruption of governmental facilities, I think it is appropriate and absolutely necessary to reexamine Federal counterterrorism capabilities, including the role of the Armed Forces. For more than 100 years, military participation in civilian law enforcement activities has been governed by the Posse Comitatus Act. The act precludes military participation in the execution of laws except as expressly authorized by Congress. That landmark legislation was the result of congressional concern about increasing use of the military for law enforcement purposes in post-Civil War era, particularly terms of enforcing the reconstruction laws in the South and suppressing labor activities in the North. There are about a dozen express statutory exceptions to the Posse Comitatus Act, which permit military participation in arrests, searches, and seizures. Some of the exceptions, such as the permissible use of the Armed Forces to protect the discoverer of Guano Islands, reflect historical anachronisms. Others, such as the authority to suppress domestic disorders when civilian officials cannot do so, have continuing relevance--as shown most recently in the 1992 Los Angeles riots. It is important to remember that the act does not bar all military assistance to civilian law enforcement officials, even in the absence of a statutory exception. The act has long been interpreted as not restricting use of the Armed Forces to prevent loss of life or wanton destruction of property in the event of sudden and unexpected circumstances. In addition, the act has been interpreted to apply only to direct participation in civilian law enforcement activities--that is, arrest, search, and seizure. Indirect activities, such as the loan of equipment, have been viewed as not within the prohibition against using the Armed Forces to execute the law. Over the years, the administrative and judicial interpretation of the act, however, created a number of gray areas, including issues involving the provision of expert advice during investigations and the use of military equipment and facilities during ongoing law enforcement operations. During the late 1970's and early 1980's, I became concerned that the lack of clarity was inhibiting useful indirect assistance, particularly in counterdrug operations. I initiated legislation, which was enacted in 1981 as chapter 18 of title 10, United States Code, to clarify the rules governing military support to civilian law enforcement agencies. Chapter 18, as enacted and subsequently amended, generally retains the prohibitions on arrest, search, and seizure, but clarifies various forms of assistance involving loan and operation of equipment, provision of advice, and aerial surveillance. Chapter 18 does not authorize military confrontations with civilians in terms of arrests, searches, and seizures. Chapter 18 also ensures that DOD receives reimbursement for military assistance that does not serve provide a training benefit that is substantially equivalent to that which would otherwise be provided by military training or operations. The administration requested legislation that would permit direct military participation in specific law enforcement activities relating to chemical and biological weapons of mass destruction similar to the exception that already exists under current law that permits the direct military participation in the enforcement of the laws concerning the improper use of nuclear materials. Mr. President, the nuclear kind of incident is entirely possible. We have to be prepared for it. We are much better prepared to deal with nuclear than we are with chemical or biological. We have the capability in the Department of Energy with a team that has been training and working on this for years, and they are much better prepared. We do not have a similar capability for chemical or biological. So by the omission of this specific authority in this bill, we are taking the most likely avenue of attack for terrorism in this country with mass-destruction weapons--and that is chemical or biological--and we are not putting that in the same category as nuclear, which is possible, and we must be prepared for it. But a nuclear attack is not as likely to happen as a chemical or biological attack. Last June, the Senate included such legislation in the counterterrorism bill with safeguards to ensure that it would only be used in cases of emergency and under certain specific, carefully drawn limitations. In my judgment, the question of whether we should create a further exception for chemical and biological weapons should be addressed in light of the two enduring themes reflected in the history and practice and experience of the Posse Comitatus Act and related statutes: First, the strong and traditional reluctance of the American people to permit any military intrusion into civilian affairs. Second, the concept of any exception the Posse Comitatus Act should be narrowly drawn to meet the specific needs that cannot be addressed by civilian law enforcement authority. The record is abundantly clear that we are talking about exactly that. These are cases where local law enforcement and State law enforcement simply could not handle the job. These issues were examined at a hearing before the Judiciary Committee on May 10, led by the chairman of the committee, Senator Hatch, and the ranking minority member, Senator Biden. At the hearing, five major themes emerged: First, we should be very cautious about establishing exceptions to the Posse Comitatus Act, which reflects enduring principles concerning historic separation between civilian and military functions in our democratic society. Second, exceptions to the Posse Comitatus Act should not be created for the purpose of using the Armed Forces to routinely supplement civilian law enforcement capabilities with respect to ongoing, continuous law enforcement problems. Third, exceptions may be appropriate when law enforcement officials do not possess the special capabilities of the Armed Forces in specific circumstances, such as the capability to counter chemical and biological weapons of mass destruction in a hostile situation. Fourth, any statute which authorizes military assistance should be narrowly drawn to address with specific criteria to ensure that the authority will be used only when senior officials, such as the Secretary of Defense and the Attorney General, determine that there is an emergency situation which can be effectively addressed only with the assistance of military forces. Fifth, any assistance which authorizes military assistance should not place artificial constraints on the actions military officials may take that might compromise their safety or the success of the operation. The Senate provision was drafted to reflect the traditional purposes of the Posse Comitatus Act and the limited nature of the exceptions to that act. The motion to recommit that we will be voting on in a few minutes would require the conferees to reinstate that provision with a minor technical clarification that has come to our attention since the Senate bill was passed. Under the motion to recommit, the Attorney General would be authorized to request the assistance of the Department of Defense to enforce the prohibitions concerning biological and chemical weapons of mass destruction in an emergency situation. The Secretary of Defense could provide assistance upon a joint determination by the Secretary of Defense and the Attorney General that there is an emergency situation, and a further determination by the Secretary of Defense that the provisions of such assistance would not adversely affect military preparedness. Military assistance could be provided under the motion to recommit only if the Attorney General and the Secretary of Defense jointly determined that each of the following five conditions is present. This is very narrowly drawn. First, the situation involves a biological or chemical weapon of mass destruction. Second, the situation poses a serious threat to the interests of the United States. Third, that civilian law enforcement expertise is not readily available to counter the threat posed by the biological or chemical weapon of mass destruction involved. Fourth, that the Department of Defense special capabilities and expertise are needed to counter the threat posed by the biological or chemical weapon of mass destruction involved. Fifth, that the enforcement of the law would be seriously impaired if Department of Defense assistance were not provided. I have a very hard time understanding why the House of Representatives would not accept this provision. Maybe there is a reason, but I certainly have not heard that reason. Nothing that I have heard indicates why our military could not be used, when we have a biological or chemical weapon of mass destruction involved in the situation, a serious threat is posed to the interests of the United States, civilian law enforcement expertise is not available to counter the threat, Department of Defense capabilities are needed to counter the threat, and law enforcement would be seriously impaired if DOD assistance is not provided. I think the American people would expect us to be involved in that with the military, to protect the lives of American citizens. The types of assistance that could be provided during an emergency situation would involve operation of equipment to monitor, to detect, to contain, to disable or dispose of a biological or chemical weapon of mass destruction or elements of such a weapon. The authority would include the authority to search for and seize the weapons or elements of the weapons. We may get into a situation where it is not entirely clear whether there is a chemical or biological weapon but someone has threatened that that kind of weapon is contained in a basement somewhere in a city. If the President of the United States does not have this statutory authority, he is going to be very reluctant to put the military into downtown New York to look for chemical or biological weapons. It would be extremely dangerous for law enforcement to undertake that task, but the President will be on the very conservative side and very reluctant to take that step unless he has absolute belief that there is such a weapon and a disaster is impending. Unfortunately we are not going to have that kind of clarity, in my view, in the future. So it is important for Congress to speak to this issue. If the Biden amendment is agreed to and it goes back to conference, and this becomes law, the Attorney General and the Secretary of Defense would issue joint regulations defining the type of assistance that could be provided. The regulations would also describe the actions that the Department of Defense personnel may take in circumstances incidental to the provision of assistance under this section, including the collection of evidence. This would not include the power of arrest or search or seizure, except for the immediate protection of life or as otherwise authorized by this provision or other applicable law. This provision is set forth in the motion to recommit. If it is agreed to, and I hope it is, it would make it clear that nothing in this provision would be construed to limit the existing authority of the executive branch to use the Armed Forces in addressing the dangers posed by chemical and biological weapons and materials. The motion to recommit would address two important concerns. First, as a general principle, the types of assistance provided by the Department of Defense should consist primarily in operating equipment designed to deal with the chemical and biological agents involved, and that the primary responsibility for arrest would remain with the civilian officials. As a law enforcement situation unfolds, however, military personnel must be able to deal with circumstances in which they may confront hostile opposition. In such circumstances their safety and the safety of others and the law enforcement mission cannot be compromised by putting our military in that dangerous situation and then precluding them from exercising the power of arrest or the use of force. Mr. President, some people wanted to pass a statute saying the military could do everything but they could never make an arrest. I think they ought to defer to civilians in almost all circumstances. But we do not want to have our military team out there in chemical gear, looking for chemical weapons, some of which may already be escaping, no policemen being able to go in because they do not have the equipment, no fire authority able to go in, run right into the people perpetrating the act and not be able to do anything about it. So we have to give them that kind of limited authority in unusual, and hopefully circumstances which, God forbid--I hope they will never occur. But I must say the likelihood of something like this occurring in the next 5 to 10 years in America is, in my view, very high. The motion to recommit would require the Department of Defense to be reimbursed for assistance provided under this section in accordance with section 377 of title 10, the general statute governing reimbursement of the Department of Defense for law enforcement assistance. This means that if DOD does not get a training or operational benefit substantially equivalent to DOD training, then DOD must be reimbursed. Under the motion to recommit, the functions of the Attorney General and the Secretary of Defense may be exercised, respectively, by the Deputy Attorney General and the Deputy Secretary of Defense, each of whom serves as the alter ego to the head of the Department concerned. These functions could be delegated to another official only if that official has been designated to exercise the general powers of the head of the agency. This would include, for example, an Under Secretary of Defense who has been designated to act for the Secretary in the absence of the Secretary and the Deputy. The limitations set forth in the motion to recommit would address the appropriate allocation of resources and functions within the Federal Government; and are not designed to provide the basis for excluding evidence or challenging an indictment. The motion to recommit, which reflects the Senate-passed provision, is prudent and narrowly drafted. It was strongly supported in the Senate by the chairman of the Armed Services Committee, Senator Thurmond. It was unanimously adopted by the Senate. The administration, both the Department of Defense and Department of Justice, have testified that current law is inadequate and they need authority to deal with chemical and biological terrorism similar to the authority they now have for nuclear terrorism. It is irresponsible to leave our law enforcement officials and military personnel without clear authority to deal with these dangers. I know the argument is made that we already have the insurrection statute on the books, which possibly could cover this situation. I would like to just share with my colleagues, before I close, a reading of that statute so they will understand why we need to have clarification. Under the insurrection statute, sections 331-335, title 10 United States Code, the President can use the military in the following situations. To suppress an ``insurrection'' at the request of a State. To suppress ``unlawful obstructions, combinations, or assemblages, or rebellion [that] make it impractical to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings.'' To suppress ``any insurrection, domestic violence, unlawful combination, or conspiracy'' if it ``so hinders the execution of laws'' that a State or the Federal Government cannot enforce the laws. Before using these authorities, the President must issue a proclamation that, ``order[s] the insurgents to disperse and retire peacefully to their abodes within a limited time.'' Can you imagine somebody coming into the President saying, ``Mr. President, we expect an attack. We cannot prove this but we expect a chemical attack in New York City or Chicago in the next 12 to 24 hours. We desperately need our military teams to go to a potentially hostile situation with protective gear to detect and determine if that kind of material is present within certain areas of New York.'' And the President says, ``How do I do that?'' They say, ``Mr. President, what you first have to do is issue a proclamation, saying that the insurgents should disperse and retire peacefully to their abodes within a limited time.'' Mr. President, can you imagine a President saying to his staff, ``You mean you want me to issue that? We have a terrorist group in New York City running around and you want me to issue a proclamation for the whole world to see and for the American people to laugh at, saying that the insurgents must disperse and retire peacefully to their abodes within a limited time? I will be laughed out of the White House if I do that.'' Any President would be extremely reluctant to use that kind of authority. Besides that, this is not an insurrection. It is not an unlawful combination or conspiracy designed to hinder execution of the laws. To fit chemical or biological terrorism under the insurrection statute would require an extremely awkward and very stretched application. I think the President would only use that if he was absolutely convinced that being scoffed at and made fun of all over the world by issuing such a ``disperse and retire peacefully'' order would be outweighed by almost the certainty that that kind of calamity was about to happen. These statutes are designed to deal with civil disorders, not terrorism. When the terrorists are on the subway with chemical or biological agents of mass destruction, must we await the President's issuing of a proclamation and ordering the terrorists to ``retire peacefully to their abodes?'' The reason we have the statute that allows military assistance in the event of nuclear offenses is to provide for prompt and effective employment of military personnel to address the emergency, without the need to interpret the law or determine whether there is some inherent authority to assist. Chemical and biological weapons are more likely to be used, and they present the same problems of mass catastrophe as do nuclear weapons, and we should not delay clarification of the authority of the military personnel to provide specific assistance in emergency situations. I do not understand why people oppose this. I cannot understand why the House opposes it. I think it is irresponsible not to proceed as the Senator from Delaware is urging us to proceed with his motion. I know there is one other argument that says, because of a Supreme Court decision, there is inherent authority for the President to act with the military or with whatever he has to use to protect against the immediate threat to life. I would not deny that in certain situations the President might use this authority. Certainly in desperate situations he might. This is not statutory authority. It requires him to exercise constitutional, inherent authority. This is a very difficult situation and the military personnel involved, if the President is wrong in his assessment of inherent and immediate threat to life, would be at risk. They would be at risk of lawsuits and liability. They would be at risk of all sorts of problems if the President is wrong because they would not be acting under color of law. So this immediate-threat-to-life inherent authority, though possibly available in desperate situations, is simply not the way to proceed. It would be a classic lawyers' debate. What we are doing now, if we leave the law as it is, as this bill before us will do unless it is amended, unless it is sent back to conference and amended, we are basically saying we are going to have one big furious debate among lawyers as to what authority would be used in what could be a matter of urgency, extreme urgency where every minute and every hour counted for the military to get into the business where we have a true emergency and American life is threatened. So the present law is inadequate. The constitutional inherent authority of the President is inadequate in this situation, and the insurrection law would be, I think, resisted fiercely by any President where you would have to basically make an almost preposterous-type plea for the people who are perpetrating this act of terrorism to disperse and retire peacefully to their abodes within a limited time. I would like to hear someone explain why this is not part of this conference report. I know that the Senate supported it. My colleague, Senator Hatch, I am sure, urged its adoption in the House of Representatives. I do not understand why this has been taken out of this bill. Mr. President, I urge the adoption of the Biden amendment.

Mr. NUNN. Mr. President, I will just make a few brief remarks. I have tremendous respect for my friend from Utah. He knows that. He and I have been on the same side of the habeas corpus issue for a long time. Now the Governor of Florida, then Senator from Florida, Lawton Chiles, and I came to the floor for 2 or 3 weeks in a row every day back in the 1970's, I believe--time slips by--about the importance of reform in habeas corpus. So I certainly share his view on that. As much as I think that needs reforming, I do not think that habeas corpus statutes are the problem now. It has been somewhat modified by the courts themselves. I do not think that is as urgent as what we are talking about here, because with the hearings we have had and with the tremendous amount of effort that I have made and Senator Lugar and others have made in this whole problem of the proliferation of chemical and biological weapons, I do not know whether anything is going to happen next week, next month, or next year. I do know that we could have some calamity happen without any notice in this area. I hate to see our Nation so ill-prepared to deal with a threat that is much more likely to happen than some of the threats that we are prepared to deal with. Mr. President, something has happened to our Republican friends in the House of Representatives. I am not sure what deal was struck over there, but I recall very well being on the floor of the Senate--and my friend from Utah probably recalls this, too--when the House of Representatives passed an amendment--this was a good many years ago during the Reagan administration--that basically gave an order, waived the posse comitatus statute, gave the order, I believe by Congressman Hunter from California, to shut the borders down with our military, basically shut them down, I believe, within 45 days saying the military would be deployed all over the borders of the United States to basically close the borders, not let any drugs come through. We computed that we would have to bring all our military forces back from Europe, from Korea, from Japan, everywhere else to put them side by side virtually on the border to comply with that. It passed the House, and it was a Republican-sponsored amendment. Of course, after some light was shone over here on the floor of the Senate, we rejected that amendment. It did not happen. I also have a long history in this posse comitatus area because I thought certain carefully crafted exceptions to the statute needed to be made in the law enforcement and drug area, but carefully constructed so we did not get our military involved in search and seizure and arrest on a routine basis. I found myself debating the then-Senator from California, now Governor of California, where he proposed an amendment that would have had the military be able to make any kind of arrest and search and seizure for drug transactions in the domestic United States. That was another very, very broad waiver of the posse comitatus statute that I would have opposed. This would have made, on a routine basis, a military response for law enforcement. I opposed that. That was going too far. Here we have my colleagues on the House side, and for some reason now they have switched all the way over and they are worried about even using the military in a situation where we have a desperate situation with chemical and biological weapons where nobody else can handle it. I do not understand it. I do not understand what has transpired. But something strange has taken place here. I do think we have to approach this whole posse comitatus area with great care. We do not want our military engaged in law enforcement except as an absolute last resort when there is no other alternative and when the result of failure to be involved would be catastrophic. I also would ask my friend from Utah--and I know he has tried to sustain the Senate position on this; I know him well enough to know that he has done that, and you cannot do it on every item in conference--but I do not understand how people who supported the exception on the nuclear side to the posse comitatus statute that was made at the Reagan administration's request have a different view now. During the Reagan administration, they said they needed this exception. We had the same Constitution then, the same Supreme Court decisions, the same insurrection statute, but they wanted an exemption in the nuclear area so they could clearly have statutory authority. We supported that. That was not a partisan issue at all. Democrats and Republicans supported it. President Reagan signed it into law. Now we have the same kind of situation, almost identical, in the chemical and biological area. We have a different President in the White House, who is a Democrat, and we have a whole switch in positions where people say, ``Oh, we don't need this. We don't need it. We can't give them this authority,'' and so forth. I do not understand it. I understand partisan positions, but I do not understand completely switching philosophical positions on something of this nature. I make one other point. The Senator from Utah mentioned the provision we passed recently in the defense authorization bill that allowed the equipment of the military to be used and to be loaned to law enforcement and other domestic officials in situations that are chemical-biological. That is a very useful addition to the present authority. What you have to have there is personnel who are trained to use that equipment. You cannot jump into chemical protective gear and know how to operate it in an emergency situation, if the Defense Department brings it in and hands it to local police. You have to be trained in that. The military spends hundreds of hours training people in that regard. It will take years and years and years to train our domestic law enforcement and fire officials all over this country in the use of that kind of equipment. Unless they are already trained, that statute will not be available for practical use in an emergency situation. They may try to use it, but it will not do the job because it does not authorize military personnel to operate the equipment. We simply have a multiple number of cities around this country that could be struck, and we cannot freeze out and prevent our military from being involved in an emergency dire situation as a last resort. We have to have people who are trained and know how to use the equipment, not only protective gear but protective equipment. It cannot be done at the last minute when there is an immediate threat of attack. Mr. President, I would not be speaking in favor of this motion to recommit on an important bill like this if I did not think that the failure to act in this regard could have a very serious consequence. None of us can predict at what time interval something like this will occur. I hope never. I must say, the probability of having some kind of chemical or biological attack in the United States in the next several years is, in my view, a rather high probability. We will have to do a lot more than we have done so far to get ready for it. I hope that somehow the House of Representatives will recognize that. I know the Senator from Utah is absolutely sincere in his willingness to revisit this issue and try to put it on another bill. If this motion does not pass, I will work with him in that regard. I hope that those in the House will reexamine their position. I hope they get some of their staff to go through the records. We have had a considerable number of hearings on this explicit point. We have had all sorts of expert testimony from the fire chiefs around the country, from law enforcement officials, from Justice Department officials, the FBI, the military. We have had detailed hearings on the attack in Tokyo, what occurred there. Not only are we not prepared law enforcement-wise in this regard, we do not have the emergency medical training required in most of our American cities to deal with the aftermath of this kind of event if it did occur. We would simply be overwhelmed, and people would ask all of us, ``Where were you when this threat was being discussed, when you were, basically, responsible for doing something about it? Why did somebody not try to prevent it from happening, or at least prepare us to deal with the terrible medical, tragic consequence of this kind of attack?'' Again, I urge the Biden amendment be adopted.

Mr. NUNN

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

Mr. NUNN

Mr. NUNN. Mr. President, much attention has been paid in recent days to proposals for fundamental tax reform. By fundamental tax reform, I mean the replacement of the current tax on individual and business income with a better alternative. A significant share of the debate over fundamental tax reform has occurred in Congress. Last year, Senator Domenici and I introduced, along with Senators Kerrey and Bennett, S. 722, the unlimited savings allowance tax, or the USA tax. Senator Shelby and Congressman Dick Armey have introduced legislation proposing a flat rate tax. We have all heard considerable debate about that in the Presidential campaign. Senator Lugar and Congressman Archer have argued for a national sales tax. Other proposals, perhaps variations on these ideas, will appear in the coming months. If we are to have fundamental reform, this sort of congressional debate and activity is absolutely necessary-- necessary, but not sufficient. The American people must be involved in this discussion, and the sooner the better. They must decide this matter in the long run because they and their children will live with the results. None of us can be absolutely certain what our fellow Americans would choose if fully aware of the various tax reform proposals now before the Congress. Not enough debate has occurred for that awareness to take place throughout our country, and certainly there has not been enough publicity giving the details and analyses of these various proposals. It may be that after inspecting alternative ideas, in spite of being frustrated with the existing Tax Code, Americans may decide to stick with the current tax regime regardless of its serious faults. I hope not. But whatever the decision, one must be made. Public apathy and its close relative, public cynicism, are not appropriate to the challenge of fundamental tax reform, which I, for one, believe is essential for the Nation. If citizens are to make a reasoned judgment about the merits of various proposals, they must have recourse to a set of constant standards upon which to rely. This is the only commonsense approach that is possible and effective, and it applies to the evaluation of tax reform proposals even more than to other areas. When the summer Olympics comes to Atlanta this year, athletes from all over the world will be competing against each other and against the record book. It would really not matter if, say, the pole vault event were measured in feet or in meters, provided the standard of measurement is consistently applied, and applied to all. But an athlete would have every right to cry foul or unfair if his pole vaults were measured in meters while the vaults of his rivals were measured in feet. The standard has to be the same. That is how you determine the best. So it is with tax reform. If the American people are to evaluate the varying proposals that have been presented, they need us to talk with them about our ideas in a way that makes those ideas readily comparable. If proponents of reform and the media covering this debate do not do that, then citizens will be trying to compare apples with oranges, rather than apples with apples. I am afraid that is what has occurred thus far in this debate. Let me offer several examples about what I mean. First, for purposes of fair comparison, all tax reform proposals should be designed to raise the same amount of money. That amount should equal what is now raised by the part of the Tax Code that reformers want to replace. In other words, all the proposals should be revenue neutral compared to the current code. This is an important discipline. Indeed, it is a very critical discipline. Low rates are attractive. Accordingly, some reformers assume heroic cuts in Federal spending and Federal tax requirements when they calculate their proposed tax rates. By doing so, they can present proposals with rock- bottom rates. If one proposal is going to have that advantage, then every one should have that. Why not propose a 10-percent flat rate instead of a 17-percent? It is easy to see how we would have debate that completely obscures and, I think, brings no clarity to the issue if we do not have the same rules. This strategy is like selling a suit three times too small on the assumption that the customer will lose 30 pounds. Maybe the diet will work, but if it does not, or even if it is not quite as successful as hoped, the suit will not fit and the customer will be unhappy. All of us believe that our proposals will accelerate economic growth and the standard of living of the American people, or we would not be promoting fundamental change. But if the proponents of one plan are permitted to use dynamic estimates even in their debate and presentations to the public, and the resulting lower tax rates, while other areas use conventional estimates and the result is higher tax rates, then this is not real debate. Rather, it is an exercise in creative arithmetic. I have long worked for reductions in Federal spending. I hope the current budgetary impasse can be broken. We can and we should put the Nation on a path toward a balanced budget. But this process, as I view it, must be separated from tax reform. It is imprudent to model a tax reform plan based on rosy revenue assumptions that have yet to be put into place. There is also the matter of what share of the tax should be collected from individuals and what share should be collected from businesses. I believe that all tax reform proposals should be modeled to collect from business and individual revenues in the same proportion as what the current code extracts from both. There is nothing magical about that proportion. From an apples-to- apples perspective, however, we must guard against the temptation, in modeling tax reform proposals, to shift the tax burden from individuals to businesses, or vice versa, in order to play shell games with the rates. You can make a tax proposal sound very attractive if you lower the individual rates dramatically and increase the rates on business. But that, in my view, unless it is clearly spelled out as to why you are doing it and what the philosophy is and why that is going to improve the lives of the American people, it makes no sense. Just as all the tax reform proposals should be revenue neutral, so too should they provide enough detail to allow people a fair chance to assess them in their entirety. Architects of fundamental tax reform plans need not draw up a complete set of blueprints with every single detail. The goal is to furnish enough of the foundation and framework to permit citizens to understand how the entire structure would function and to suggest ideas for its improvement. Often when a proposal seems simple in concept, it does so because its advocates have not explained how it would apply to the many economic transactions that occur every day in our very complicated and complex economy. Transition issues are a good illustration. Replacing much of the current code with an alternative system will entail more than just a one-time transition cost. Over many years and using after-tax dollars, Americans have amassed trillions of dollars in savings. Businesses have invested trillions of dollars in plant and equipment. That has already been done. If and when we move to a new tax system, what will happen to that savings and investment? Some tax reformers are silent on that issue. Does their silence mean that senior citizens, our best savers, will find their savings taxed yet again under the new regime? Suppose somebody saved all of their lives and they have $100,000 in liquid assets, and they are in their golden years and plan to retire. If you pass a 20-percent sales tax and do not have a fundamental transition, then you have said to that senior citizen, ``You have $100,000 which you saved all your life, and you paid taxes on it. These are after-tax dollars, but now, as you spend that money, we are going to levy a 20- percent tax on everything you spend in the latter years of your life.'' Does anybody really believe that is fair? Yet, those matters have not yet been discussed by many of the proponents of some of the plans. Will businesses that invested in productivity-enhancing equipment be penalized for their foresight because they will be unable to amortize fully these investments? Is that the way we want to increase new productivity, by penalizing previous modernization efforts for productivity that have been made without a new code? When Senator Domenici and I drafted our USA tax proposal, we devoted much of our attention to solving the transition problems. I do not claim we have solved every one of them, but we have gone a long, long way. Under the USA tax, pre-transition savings would not be taxed and businesses would be given an opportunity to write off their previous investments. Proponents of other reform plans have criticized the USA tax's transition rules as overly complicated. That is easy to do if you do not have any in your own proposal, and if you have not thought about the results of not having any. Perhaps so; we welcome any suggestions for improvement. But, to use an old poker expression, you can't beat something with nothing. Proposals for fundamental tax reform that do not address transition are not simple--they are simplistic because they are not complete. They have avoided the hard questions and the hard work which are essential for meaningful tax reform. Transition is only one of the many details that require elaboration. Farmers must know how tax reform proposals will treat cooperatives. Bankers and insurance companies will ask how financial and service organizations are to be taxed. When you give them an answer and you have not really thought about that, and you say, ``Well, we will have to have a transition rule,'' that means your proposal is going to get more complicated and more complex. That is inevitable. But when you have not thought about these issues, it makes comparisons for the public--and even for the news media people who follow it on a regular basis--almost impossible. Wage earners will wonder if fundamental tax reform will address the very regressive payroll tax, which is one of our most regressive taxes and is one of the reasons why our American average working person has been hit so hard in the 1980's and even in the 1990's while people get up and talk about the overall rates having come down. Yes, income tax rates have come down. Of course, they came back up again 2 years ago. But they have come down substantially when measured over the last 10 or 12 years--very substantially. But guess what has happened during the same time? The Social Security tax, which has more effect on many of our working people making lower incomes, that tax rate has gone up dramatically, and, therefore, many working people, during the Reagan years where everybody talked about taxes going down, many working people have seen their taxes go up. Wage earners will not be the only ones who ask about that. There is not a small business person in America who is not vitally interested in the same issue because the payroll taxes for small businesses have also gone up dramatically in the last 10 or 15 years. Advocates of fundamental tax reform must address these and many more matters openly and early-on. The pass-it-now-and-fix-it-later philosophy of tax legislation will not work. A lack of candor at the beginning of the process invites precisely the public cynicism that now surrounds the current Tax Code. This issue of candor and thoroughness brings me to the final and most important apples-to-apples issue. Those of us calling for fundamental change must explain why we think the Nation should embark upon such a large project. Only by knowing our motives and why we think change needs to be made can citizens evaluate fairly whether our plans are likely to succeed. My own sense is that the authors of the various tax reform plans have many goals in common. Those goals have little to do with tax rates and even allowable deductions. I am not saying tax rates and deductions are unimportant. They are of course important. But changing the tax rates or altering the number of deductions does not require fundamental reform. In 1986, Congress lowered tax rates and eliminated certain deductions without replacing the Tax Code. If it so chooses, Congress could today enact a flat or single rate individual income tax with minimal tinkering with the rest of the tax system. As a matter of fact, while Senator Domenici and I have offered a fundamental tax reform plan with a progressive rate structure, we could easily adapt our proposal to a flat rate system if citizens so demanded without changing our essential purpose. Mr. President, the debate on flat tax loses a great deal in terms of the understanding that is required. You could take the current Tax Code with all of its headaches, with all of its deductions, with all of its complexities, with all of its perceived unfairness, and you could apply a national flat income tax rate to the current code. It is just a matter of arithmetic. You take the amount you need to produce a break- even with the current revenue today, you take the rate that would be required to apply to the taxable income, and you apply it. Instead of having four, five, or six individual income tax rates, you could have one. That could be done in just a few hours. You could have a national flat tax rate with the current code. But you would not have solved the problem that is frustrating the American people in terms of complexity, unfairness, and the problem that bothers so many of us because you would not have changed the basic disincentives to save and invest which are required if we are going to increase productivity and if we are going to increase the average income for our American citizens. Our essential purpose is to change what we tax. This is true for the flat tax and the national sales tax as well as the USA tax and all the other proposals based on these models. All of these plans aim to correct the bias in the current code against saving and investment. Marginal changes in the Tax Code cannot eliminate that bias. It is ingrained in our current system. If you want to remove the bias in the tax base, you have to replace large parts of the code. What do we mean by bias some ask? Here is a simple example. If you take $200 and buy a television set, you are not again taxed for whatever enjoyment or enlightenment you may receive by watching it. If, however, you take that $200 and put it in a college savings account for your children to go to school, all the interest you earn is subject to tax. The act of consumption--using the $200 to purchase a television set-- is taxed once, as income. The act of saving--putting the $200 away for future education expenses--is taxed twice. The original $200 has already been taxed as income. The returns to that $200, in this case, interest, is taxed again. Saving $200 for tomorrow is more expensive than consuming it today. So we have an inherent bias built into our tax system that tilts us toward consumption and away from savings and, therefore, away from investment, productivity, and a higher growth standard with higher income. Millions of middle-class Americans own stock or shares in mutual funds that own stock. They rely on this saving for retirement, health care, and other future expenses. I wonder if most realize how double taxation reduces the return on their investments. Because our tax law regards corporations and their investors as separate entities, it taxes corporate earnings twice: once as corporate income and again as dividends received by individuals. In contrast, because corporations may deduct interest payments if they borrow, holders of corporate bonds are not penalized by double taxation. The current Tax Code says to citizens: faced with a choice between buying today or saving so that you can buy more tomorrow, then you should buy now. It says to corporations: faced with the choice of building a strong foundation through equity financing or borrowing to the hilt, borrow to the hilt. This bias against saving is a bias against our future. We see its crippling influences in our economic data. The saving rate in this country is at historically low levels. Because our savings are low, our investment has been correspondingly low. Continued low saving inescapably means continued low investment. Low levels of investment mean low productivity gains. Low productivity gains means stagnant wages and, therefore, little or no growth in our standard of living. We have been on this treadmill for long enough--too long. All of the major proposals for fundamental tax reform--the national sales tax, the flat tax, and the USA tax of Senator Domenici and myself--would rid the Tax Code of its bias against saving. That is their central, core characteristic. While we debate the differences, this core characteristic should not be overlooked. It is this focus upon the tax base that distinguishes fundamental reform from the incremental changes of previous years. Although many of the details of the national sales tax proposal remain sketchy, its basic mechanism is familiar to most Americans. The sales tax is paid on purchases. Saving remains untaxed until spent. In theory, every dollar of wages or salary is taxed once and only once at the point of consumption. The flat tax would be administered in much the same way as the current income tax. The key difference is that capital income--that is, money earned as the result of saving and investment--is not taxed at the individual level. For example, citizens would not be taxed on interest earned on a bank savings account. Nor would they be taxed on income from dividends, interest on corporate paper, or capital gains. Corporate income would still be taxed at the corporate level; by not taxing it again at the individual level there would be no double taxation. While I certainly understand the theory behind this proposal, I would have a hard time ever explaining why the wealthy owner of a yacht living off of investment income would have to pull up to shore to let his captain off to file an income tax return each April 15 while the owner remains on- board watching television and playing cards. That is a burden I do not want to assume. So the theory has validity, but the application seems to be, and I think would be perceived to be, very unfair. Senator Domenici and I took another tack. Like the flat tax, our USA tax proposal is administratively similar to the current income tax. Some people, of course, do not like that. But our method for relieving the current code's burden on savings and investment departs in considerable and very significant degree from the flat-tax approach. A major, perhaps insuperable, problem with the flat tax is the failure to treat all income alike. An individual with only wage income would file a tax return while his neighbor, with only capital income, would not. Now, it is true that the capital income would already have been taxed at the business level. Dividends, for example, would have been taxed at the business level as corporate income, but I am afraid that would be far from obvious to the wage-earning neighbor. Such a lack of clarity would inevitably lead to a lack of public confidence. When we designed the USA tax, we wanted to make the proposal as understandable and fair as possible so we chose to avoid the complex and confusing distinction between wage and capital income. The USA tax is indifferent to the source of income. It is concerned with how the income is used. In every taxable year, the amount of money a taxpayer chooses to save would not be taxed. The taxpayer would be taxed only on the amount he or she spent during the year. This removes the double taxation of savings. Note, too, that no dollar ever escapes taxation. Over a lifetime, every dollar would be taxed once and only once in the year it was spent. The USA tax grants to all America a power that today is reserved only for the wealthy: the ability to lower their tax obligations. Exercising that power does not require an army of tax lawyers to ferret out loopholes in the tax system. Merely by saving, taxpayers can reduce how much of their wages is subject to tax in any given year. Under the USA tax, everyone will have the tools to take greater economic responsibility for themselves and for their families. At a time when we must moderate the growth of entitlement programs, this sort of change, I believe, is absolutely essential. I know that many of us in America do not think we can afford to save. My response is that we have no real choice. Savings must become a greater priority in every household budget, just as it must in the Federal budget by lowering the deficit. It is Government's responsibility to help our citizens by providing a tax code that does not penalize them when they try to do what is best for their future and for their children's future. Mr. President, I believe the U.S.A. tax offers a superior path to fundamental tax reform. Its savings deduction is understandable and equitable. Those who take the time to acquaint themselves with our legislation--which we tried to write in plain English in the hope that Americans will read it--will also see how the U.S.A. tax would simplify both the business and individual tax; encourage American exports by offering a tax rebate on sales or exports from this country; it would include vital deductions for education, charitable giving and retain the home mortgage interest deduction; and it would provide taxpayers and businesses with a credit for the payroll tax they must pay, which is enormously important to our small business community and, most of all, to our average working people. Ultimately, however, neither Senator Domenici nor I see ourselves in some sort of fundamental win-or-lose conflict with advocates of the flat tax or a national sales tax. Fundamental tax reform must be a collaborative process. There are tremendous forces in favor of keeping the Tax Code as it is. They are already well along in their job of scuttling change. We assist these defendants of the status quo when we focus only on our differences and neglect what we have in common. For all the conferences, column inches, research reports, and speeches devoted to fundamental tax reform over the last year or so, the truth of it is that those of us who want fundamental change stand at the beginning of a very long road. We must begin to travel that road together. We have to speak with the American people regarding what is really at stake in fundamental reform. We must solicit their views rather than stir up their passions. We must challenge our critics to help improve our work, and when we offer proposals for reform, we must employ similar revenue estimates and provide a comparable degree of detail about what we wish to do. We must begin to make apples-to-apples comparisons if people are going to be able to understand the debate and participate in it. Then and only then can the people of America decide, and the people will have to decide in the long run. As we enter the Presidential election cycle, it is evident that the American people are restive and uncertain about our collective future. They wonder about which direction our country should take. At another time of great national uncertainty, Abraham Lincoln offered some very practical advice. Quoting him, ``If we could first know where we are and whither we are tending, we could then better judge what to do and how to do it.'' Those of us who believe that fundamental changes in the Tax Code are one important element, a very important element, in getting the country's house in order should heed Lincoln's advice. Let us work together to encourage a public understanding of where we are economically and how our current Tax Code constrains us and prevents us from fulfilling the American dream of a better life for all of our citizens. If we can do that, we may safely leave it to the public to judge what to do and how to do it. Mr. President, I yield the floor. Mr. LIEBERMAN addressed the Chair.

Mr. NUNN. I thank the Senator.

Mr. NUNN

Mr. NUNN. Mr. President, I rise today to pay tribute to Joseph Lane Kirkland, who last summer announced he would not seek reelection as president of the AFL-CIO. Lane Kirkland has been a friend since I arrived in Washington in 1972. He and his wife, Irena, are a great partnership, a great team, and my wife Colleen and I have been very honored to be their friends. Lane Kirkland is the son of the modern South. Born in 1922 in South Carolina, he is the son of a cotton merchant and was raised in the textile town of Camden. As a child in the 1930's, Lane Kirkland had classmates who lived in mill villages and worked as sweepers in the mills after school. Seeing the conditions under which they lived and worked convinced Lane that unions were needed to protect workers. He held that view and still holds that view. He certainly devoted his life to that view. Like some of his childhood friends, Lane's wife, Irena, endured a painful, indeed, a traumatic and tragic ordeal early in her life. Irena survived the concentration camps of World War II, and when the Communists took over her native Czechoslovakia, she was imprisoned just before she escaped the country. Irena's firsthand experience of oppression and, indeed, terrible, terrible tragedy, deepened Lane Kirkland's already strong concern for the freedom of people all over the world. Irena has been a strong partner in the Kirklands' dedicated quest for freedom of people behind the Iron Curtain and indeed throughout the world. Upon conclusion of high school, Lane was a student at Newberry College. He later graduated from the United States Merchant Marine Academy in 1942. During World War II, Lane served as a deck officer on a number of merchant marine vessels that transported ammunition for our troops on the front lines. After his service in the merchant marine, Lane enrolled in the Georgetown University School of Foreign Service. Following his graduation from Georgetown in 1948, Lane began his work as a researcher for the American Federation of Labor and rose through the ranks serving as an assistant to the late George Meany, and was elected as Secretary-Treasurer of the AFL-CIO in 1969. Ten years later, he was elected president of the AFL-CIO, a post he held for the next 16 years. During Lane's almost three decades in the highest ranks of labor leadership, he played a critical role in unifying what he termed the ``House of Labor.'' Under his leadership, the International Brotherhood of Teamsters, the United States Automobile Workers, the International Longshore and Warehouseman's Union of the West Coast, and the United Mine Workers of America came back into the overall AFL-CIO fold. Although I certainly did not vote for labor's legislative position as often as Lane would have liked, I always respected his views. He presented those views to Capitol Hill with courage, with conviction, and with honesty and integrity. Lane was tough, erudite and unwavering in his promotion of workers rights. Lane Kirkland never lost sight of the needs of America's workers, but his concern also included workers around the globe, particularly those behind the Iron Curtain. Lane Kirkland has been a stalwart advocate of human rights and he led the American labor movement by providing critical practical help at crucial moments. In my view, Lane Kirkland has done as much as any living American to hold America to a steadfast course during the long cold war and to encourage freedom throughout Eastern Europe and throughout the world. Lane was the stalwart supporter of a strong national defense. He never wavered in his conviction that a strong America was essential not only to protect America but to promote freedom across the globe. Mr. President, when I first came to the Senate, the defense budget, the whole idea of a strong national security, was under severe attack. We were coming out of the Vietnam War. We had been disillusioned by our participation in that conflict. The defense budget itself, indeed, America's national security, was under very severe scrutiny and attack. Lane Kirkland stood up many, many times, many times quietly but effectively making sure that his support for strong national security was known by people on Capitol Hill. That made a big, big difference in a period of time where our military forces needed strong voices and courageous voices. We need only also recall Lane's effort in the early days of the Solidarity movement in Poland. As an editorial in last summer's Detroit News so accurately recounted: When the trade union Solidarity bravely emerged in the 1980s to fight the Polish communist regime, Mr. Kirkland and other labor officials smuggled money, printing presses and even electronic equipment to keep the fledgling anti- communist movement alive. . . . When it came time to confront the gravest security threat this country has ever faced, Mr. Kirkland did not flinch. He fought communism and supported fledgling democratic movements that contributed to the demise of many totalitarian regimes. For that effort, he deserves everyone's appreciation. Mr. President, I certainly endorse that editorial. Lane Kirkland truly deserves America's appreciation. He has devoted his life to improving the lives of all Americans and to extending our democratic values throughout the world. Lane Kirkland is an able and courageous individual whose leadership at the head of the labor movement will be sorely missed. I am confident that he will continue to make a very strong national security contribution as well as a contribution to the well-being of workers here in America and, indeed, people all over the world. I am confident that he and Irena will continue to serve their country, the workers of America, and the cause of freedom in whatever they undertake. I extend my sincere thanks to both the Kirklands, Lane and Irena, for their devotion to their fellow man, and I wish them the very best in all of their future activities.

Mr. NUNN

Mr. NUNN. Mr. President, I rise to join with my fellow Senators in mourning the death of former Senator Edmund S. Muskie of Maine, and in paying tribute to one of the most distinguished and influential Members of this body during a turbulent period in our history. Ed Muskie worked his way through Bates College, where he was a Phi Beta Kappa, and earned a scholarship to Cornell's law school. After serving in the Navy on destroyer escorts during World War II, he was elected to the Maine House, where he served as minority leader. He won the Governorship of Maine during the Eisenhower years when no Democrat had held the office in 20 years, and was easily re-elected. He revitalized the State party and was elected and re-elected to the U.S. Senate until his resignation to become Secretary of State in 1980 during the last difficult months of the Iran hostage crisis. It was a time of great tension following the Soviet invasion of Afghanistan, during which the United States boycotted the Olympic games in Moscow. Ed Muskie was Hubert Humphrey's Vice-Presidential running mate in 1968. Few people remember how close that election was, and one reason it was so close was the strength Ed Muskie brought to the ticket. He started out the frontrunner, but his own campaign for the Presidential nomination in 1972 was unsuccessful, damaged by the dirty tricks the Nation would only learn about only later. It is ironic, but a tribute to the man, that the most damaging thing his enemies could point to in his conduct was that he loved his wife enough to lose his usual control when they attempted to slander her. Senator Muskie returned to the Senate and in 1974 became the first chairman of the Budget Committee. I had the privilege of serving with him on the committee during my formative early years in the Senate. He was a strong voice for budget stability. The processes he established for monitoring Federal spending, and his insistence on holding down spending across a broad range, including the areas of his own major concerns. This is the same process being used today in our attempt to achieve a balanced budget by 2007. Senator Muskie deserves major credit for most of the important early environmental legislation. He held together fragile coalitions of liberals and conservatives in budget battles, challenged Presidential policies and his own wing of the Democratic party for its failure to change. Through it all, he earned the respect of both allies and foes. After his stint as Secretary of State, he retired to private law practice. He returned briefly to public service in 1987 on the Special Review Board on the Iran-Contra Scandal, also known as the Tower Commission. Ed Muskie was a big man, big enough to still the voices of hecklers by inviting them up on the platform with him, big enough early in his Senate career to stand up to majority leader Lyndon Johnson at the height of his power, and big enough to gain the respect of his fellow Senators, and of Johnson himself. He believe in what he called a politics of trust, not of fear. Ed Muskie was often described as ``Lincolnesque.'' His middle name, Sixtus, was the name of five Popes during the 15th and 16th centuries. His last name had been shortened by immigration officials from what they considered the unpronounceable Polish name of his forefathers when his father arrived at Ellis Island. But whatever people called him, wherever his names came from, Ed Muskie was his own man. What we remember is not the occasional flash of temper but his modesty, moderation, and self-deprecating humor, and his capacity for bridging differences. He was a man of great humanity who stood for reason and reconciliation in a time of division and disunity. Ed Muskie graced this body with his healing and imposing presence, his self-deprecating humor, and his personal integrity for 21 years. He served his State and country courageously for more than three decades. I am honored to have served with him, and want to express my deepest sympathy, and that of this body, to Jane, his wonderful wife of 48 years, and to their children Stephen, Ellen, Melinda, Martha, and Edmund, Jr.

Mr. NUNN

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

Mr. NUNN

Mr. NUNN. Mr. President, I rise today to pay tribute to David Packard, whose death on March 26 ended the distinguished career of one of America's most innovative, visionary, and generous business leaders. David Packard was an outstanding public servant as well. He was Deputy Secretary of Defense under Secretary Melvin Laird, 1969-71, in what many consider one of the strongest teams ever to head the Department of Defense. His understanding of both broad issues and nuts and bolts of management was the ideal complement to Laird's knowledge of the Pentagon and Washington. More recently, Packard chaired the President's Blue Ribbon Commission on Defense Management under President Reagan--generally known as the Packard Commission. The Commission's study of the Department's procurement process led to the establishment of the position of Undersecretary for Acquisition and to the streamlining of military buying practices. He testified on a number of occasions before the Armed Services Committee and provided valuable advice on organization and buying procedures. He was always extremely helpful to the committee and to me whenever we called on him. A few years after their graduation from Stanford during the Great Depression, David Packard and William Hewlett borrowed $538 from a former professor and launched Hewlett-Packard in the garage of Packard's rented house. It is one of the great American success stories. ``We weren't interested in the idea of making money. Our idea was if you couldn't find a job, you'd make one for yourself. Our first several years we made 25 cents an hour.'' Today his company is our Nation's second largest computer company and Silicon Valley's biggest employer, with 100,000 employees around the world and $31 billion in sales last year. Packard became one of the richest men in America, but he lived modestly to the end, using his great wealth to follow, on a broader scale, the principles that guided him in managing the company-- encouraging individual creativity, providing opportunity for development of knowledge and skills, fostering mutual respect and trust. The key to his business success was the key to his character as well. The important thing was to make or do something useful. He had no patience with ostentation in corporate executives, nor with those who made short-term profits made by cutting long-term investment in research, new product development, customer services, or facilities and equipment. David Packard's management philosophy and methods became models for other companies. He viewed his employees as colleagues with ideas, skills, loyalty, and understanding he valued. He practiced management by walking the factory floor and insisted on an open-door policy in executive offices. Workers called him Dave and he encouraged them to come to him with their gripes as well as their ideas for improving products and operations. In return, they gave him undying loyalty and the benefit of their best efforts and creative ideas. He was semiretired through the 1980's, but he and William Hewlett returned to the company in 1991 when it experienced a financial slump. Packard was the driving force behind the reorganization that revitalized the company. When Packard retired as chairman for a second time in 1993, someone asked him what was his proudest moment. Instead of pointing to one of his many accomplishments, David Packard said simply, ``Do something useful, then forget about it and go on to the next thing. Don't gloat about it.'' That accurately described his own approach throughout a long and imminently successful life. Whenever he finished doing something useful, he looked for something else useful to do. A Phi Beta Kappa, football and basketball player at Stanford, he was a dedicated outdoorsman all his life, and a staunch Republican. He made major gifts over the years to Stanford, the Monterey Bay Aquarium, and the Wolf Trap Foundation. One of his last acts, not long before he died, was to give a generous donation to the Paralympics that will be held in Atlanta this summer, the week after the Centennial Olympic games. It was typical of David Packard that, at 83, he was thinking about ways to encourage individual excellence, helping to provide talented athletes from disabled community the opportunity to participate in international competition. Our Nation is a better place because of his innovations, his philosophy, his example, and his dedication to both making and doing something useful. David Packard's character matched his physique--he was a giant of a man. His beloved wife, Lucille Laura Salter Packard, died in 1987. I know the Senate joins me in expressing our deepest sympathy to his children, who were at his side when he died: David Woodley Packard, Nancy Ann Packard Burnett, Susan Packard Orr, and Julie Elizabeth Packard.

Mr. NUNN

Mr. NUNN. I yield to the former chairman of the Foreign Relations Committee and ranking Democrat, Mr. Pell, whatever time he desires.

Mr. NUNN. Mr. President, how much time do I have?

Mr. NUNN. I will not need all that time. But could I inquire of the Chair what happened to my 3 minutes?

Mr. NUNN. I thank the Chair. I can assure my colleagues I will not need all of my time. Mr. President, I rise in strong opposition to the conference report on H.R. 1561, the Foreign Relations Authorization Act for fiscal years 1996 and 1997. Although I have a number of problems with the conference report, Senator Bingaman from New Mexico and others have identified a number of problems that I will identify myself with. I would like to focus my remarks on the provisions relating to China. Mr. President, I am relieved that tensions in the Taiwan Strait appear to be easing in the aftermath of Democratic elections in Taipei. We are already very proud of what occurred in Taipei and proud of the people in Taiwan for carrying out their democratic elections under great pressure from the mainland. I am pleased that the Governments of the People's Republic of China and Taiwan are now making conciliatory statements. I hope a high level of dialogue between these two Governments can take place in the near future. Mr. President, it would be truly ironic if China and Taiwan begin moving down the road to improving their relations while we take actions in the U.S. Congress that will further the deterioration in the relations between the United States and China. I would find that very ironic. But I am afraid that that is what this act will do. Before I discuss the specific provisions of this conference report, I would note that the Senate passed a concurrent resolution last Thursday expressing the Sense of Congress regarding missile tests and military exercises by China. As I noted in my floor speech on that concurrent resolution, which had bipartisan support and passed by a vote of 97 to 0, it was ``well-reasoned and responsible and * * * designed to make a constructive contribution to the situation.'' The concurrent resolution reviewed the history of the three joint communiques under three different Presidents, noted the adherence to a one-China policy by the administrations of Presidents Nixon, Ford, Carter, Reagan, Bush, and Clinton, and ``deplored'' China's missile tests and military exercises as ``potentially serious threats to the peace, security, and stability of Taiwan, and not in the spirit of the three United States-China Joint Communiques.'' The concurrent resolution went on to cite provisions of the Taiwan Relations Act and ended by stating that-- The Government of Taiwan should remain committed to the peaceful resolution of its future relations with the People's Republic of China by mutual decision. Mr. President, the concurrent resolution the Senate passed last week was responsible and was designed to make a constructive contribution to the situation. Unfortunately, the China provisions of the conference report are, in my view, not responsible and not constructive. I will just go into detail on a couple of the most troublesome provisions. Section 1601 of the Foreign Relations Authorization Act now pending would amend the Taiwan Relations Act to provide that the Act supersedes the provisions of the 1982 Joint Communique issued under President Reagan. Mr. President, if it is a matter of law, and it is, that the Taiwan Relations Act supersedes the communique, then that already happened without any declaration of the Senate. Less than a week after the Senate, without one dissenting vote, specifically pointed to the three United States-China Joint Communiques, this act, if it becomes law, could be interpreted as nullifying the validity of one of those joint communiques. Just to go into details of the 1982 Reagan Joint Communique, it stated in part that-- The Chinese Government reiterates that the question of Taiwan is China's internal affair. The message to compatriots in Taiwan, issued by China on January 1, 1979, promulgated a fundamental policy of striving for peaceful reunification of the motherland. The Nine-Point Proposal put forward by China on September 30, 1981, represented a further major effort under this fundamental policy to strive for a peaceful resolution to the Taiwan question. Then section 5: The United States Government attaches great importance to its relations with China, and reiterates that it has no intention of infringing on Chinese sovereignty and territorial integrity, or interfering in China's internal affairs, or pursuing a policy of ``two Chinas'' or ``one China, one Taiwan.'' Then section 6: Having in mind the foregoing statements of both sides, the United States Government states that it does not seek to carry out a long-term policy of arms sales to Taiwan, that its arm sales to Taiwan will not exceed either in qualitative or quantitative terms, the level of those supplied in recent years since the establishment of diplomatic relations between the United States and China, and that it intends to reduce gradually the sales and arms to Taiwan, leading over a period of time to a final resolution. In so stating, the United States acknowledges China's consistent position regarding the thorough settlement of this issue. Mr. President, I believe it is instructive and very important for the Senate, because this is an important vote--I do not know whether people are listening. I do not know whether people have studied this act. I do not know whether people understand the far-reaching implications of this, but this is one of the most important votes we will make this year. I believe it is instructive, particularly for colleagues on the Republican side of the aisle, to note that President Reagan issued a statement in conjunction with the 1982 Joint Communique, which was prepared by the Reagan administration. In that statement President Reagan stated that--I am quoting-- Regarding future U.S. arms sales to Taiwan, our policy, set forth clearly in the communique, is fully consistent with the Taiwan Relations Act. Mr. President, if President Reagan was right in that carefully crafted statement--this was not a speech off the cuff or a remark he made on television or anything of that nature. This was a very carefully crafted statement by President Reagan in 1982, that went along with the communique with China. Again, I want to point out the most important sentence that he said in that statement that relates to this act tonight. He states: Regarding future U.S. arms sales to Taiwan, our policy, set forth clearly in the communique, is fully consistent with the Taiwan Relations Act. Mr. President, the pending legislation strongly implies that President Reagan was wrong in this carefully crafted statement in 1982. If the Taiwan Relations Act is inconsistent with the 1982 Joint Communique, President Reagan was wrong, and this act would be viewed as creating a new interpretation of United States-China policy. Make no mistake about it: If President Reagan was right in his statement, then there is absolutely no need for this act to refer to any kind of superseding of the joint communique--if he was correct. If he was wrong, all these years under both President Reagan, President Bush and under President Clinton, then we have had a communique which the State Department, our policy, our three Presidents, have felt was consistent with the Taiwan Relations Act and which we have been following regarding arm sales and so forth, that, in effect, is now being implicitly overruled. Do we really want to implicitly take a step tonight that could be viewed and certainly will be viewed by China and by others in the world as creating a new interpretation of United States-China policy by law? Are we prepared to do that? That is what this legislation does. If that is what the Senate wants to do tonight, people can go right ahead and vote for it. It will pass, and the President will have to decide what to do. I do not believe the Senate of the United States is focused on this, and I do not believe my colleagues thoroughly understand the very profound implications of this, in effect, declaration, or implied declaration, that the Taiwan Relations Act is inconsistent with President Reagan's joint communique with China of 1992. To continue quoting President Reagan in the statement he made after the joint communique, not part of the joint communique: ``Arms sales will continue in accordance with the Act and with the full expectation that the approach of the Chinese Government to the resolution of the Taiwan issue will continue to be peaceful.'' Do we want to implicitly overrule that sentence? Do we want to implicitly overrule the first sentence that I have already read twice, but will read again, ``Regarding future United States arms sales to Taiwan, our policy, set forth clear in the communique, is fully consistent with the Taiwan Relations Act''? Which of those sentences do we want to implicitly state has been superseded by the Taiwan Relations Act? ``Arms sales will continue in accordance with the Act and with the full expectation that the approach of the Chinese Government to the resolution of the Taiwan issue will continue to be peaceful.'' Is that statement wrong? Is the first statement wrong? That seems to be what we are saying. ``We attach great significance,'' again, President Reagan's statement, ``We attach great significance to the Chinese statement in the communique regarding China's `fundamental' policy; and it is clear from our statements that our future actions will be conducted with this peaceful policy fully in mind.'' Continuing from President Reagan, ``The position of the United States Government has always been clear and consistent in this regard. The Taiwan question is a matter for the Chinese people, on both sides of the Taiwan Strait to resolve. We will not interfere in this matter or prejudice the free choice of, or put pressure on, the people of Taiwan in this matter. At the same time, we have an abiding interest and concern that any resolution be peaceful. I shall never waiver from this fundamental position.'' Mr. President, this legislation, in effect, says that President Reagan did not know what he was doing when he made that statement, that the Taiwan Relations Act itself superseded the joint communique, because it was inconsistent with it. There is no reason for it to supersede the joint communique unless there is an inconsistency. If there is no inconsistency, there is no reason to say it supersedes it, because the consistent joint communique would not be overruled by a consistent United States law, which the Taiwan Relations Act is--it is law. There is no doubt about that. President Reagan made it clear in his Presidential statement that the reduction in arms sales to Taiwan is based upon the premise, as expressed in the joint communique, that the Taiwan question will be settled peacefully. Mr. President, China believes that Taiwan has acted in ways that are inconsistent with the one-China policy. No question but that is what China believes and is the basis of a lot of their action. Taiwan contends it does not seek independence. President Li has said that. President Li has also restated his desire for peaceful reunification with the mainland. China, in my view, has greatly overreacted to its perceptions by conducting missile launches and military exercises which I believe are inconsistent with the other fundamental principle of settling the Taiwan question peacefully. I happen to believe that what China has done in recent weeks is counterproductive to its own purpose, which is, as stated, eventual peaceful reunification. The Taiwan Relations Act of 1979 was enacted at the time of the establishment of diplomatic relations between the United States and China, a diplomatic act which established the principle of one China. The Taiwan Relations Act was needed to create a foundation for dealing with Taiwan in the aftermath of the end of diplomatic relations with the Republic of China. It did not, nor did it need to, refer to the one-China principle, because it focused instead on ensuring that the Taiwan question was settled peacefully by ensuring that Taiwan had the means to defend itself. Enactment of section 1601 of this act pending before us now, which is the pending conference report, could be interpreted--and I say would be interpreted by many--to say that the Taiwan Relations Act is inconsistent and even supersedes the principle of one China. I do not believe that is what the authors intended to do here. Perhaps they can clarify that. I am fearful that a number of people in the world, including China itself, could very well interpret this legislation as superseding the principle of one China. This is a complex, complicated area where words really do matter. I think we should be very careful this evening. Mr. President, I believe China's provocative military actions have been dangerous and counterproductive to China's interest and certainly to the interest of stability in that area of the world. I believe that China has greatly overreacted on the subject of Taiwan. The enactment of this conference report will make the situation worse because it would undercut one of the two main principles of our relationship with China and could give the Chinese--probably would give the Chinese--the impression that the United States was no longer willing to live up to its commitments as set out in the three joint communiques by President Nixon, President Carter, and President Reagan, and followed by the other Presidents, including President Bush and President Clinton. Mr. President, I believe this legislation, if it passed and became law, would be a very, very serious mistake, one of the most profound mistakes this Congress has made and probably any Congress has made in recent years. I think it would take our troubled relations with China and turn them into a real downward spiral of additional trouble. Mr. President, I also would like to call the Senate's attention to section 1702 of the act, the Declaration of Congress Regarding U.S. Government Human Rights Policy Toward China. Within this section, it is expressed in the sense of the Congress that ``The President should decline the invitation to visit China until and unless there is a dramatic overall progress on human rights in China and Tibet and communicate to the Government of China that such a visit cannot take place without such progress.'' Mr. President, this is exactly what we have done in this country under two Presidents, President Bush and President Clinton, for the last 7 years. It does not appear to be working very well. This is basically a freezing, if we took the sense of the Congress seriously-- if the President did--a freezing of the status quo. Mr. President, while I believe it is counterproductive to our own goals to make human rights in China the centerpiece and the be-all and end-all of United States-Chinese relations, I do not think we further our goals when we do that, including our human rights goals. The United States has a strong interest in seeing respect for human rights improve in China and, indeed, all over the world. The enactment of this provision or any provision similar to it would run counter to the very actions the United States must take in order to address and help constructively resolve the differences between the United States and China, including, but not limited to, progress on human rights. Mr. President, I think a lot of people forget that the United States has 38,000 troops in Korea. We have the most isolated regime in the world, North Korea, that is not only on a quest--or has been up until the last year--to become a nuclear power, but also has, according to reports, increasing problems with starvation, including predictions by most organizations that the problems are going to get worse in the next 3 or 4 months. Mr. President, one of the things that people do not recognize is that China has been very, very constructive in terms of the United States' position on the Korean Peninsula, both in terms of encouraging North Korea to behave in the nuclear area and also encouraging the parties there to resolve their differences with dialogue and without a war. This is a dangerous situation in Korea. We have 38,000 troops there. In our relationship with China, we appear to forget altogether about the connection between China and the situation in Korea. I do not see how we can do that and keep our minds on our duty to our own military forces that are stationed there. But it seems to be completely ignored in all of our debates about China. I would say, on the one side, people on the left seem to believe that, in China, 10 dissidents is on the same level, at least, with the whole United States question on the Korean Peninsula. People on the right seem to believe that we can take positions that basically unravel, or at least implicitly unravel, communiques entered into by Presidents Reagan, Carter, and Nixon, and we can do that with impunity, and we can forget any relationship between what we do vis-a-vis China in terms of keeping our agreements, and what they may do regarding helping us resolve the Korean situation peacefully. There are a lot of other mutual interests we have with China, but they get lost in this atmosphere. Perhaps they will continue to get lost until we have the kind of high-level dialogue between the President of the United States and the President of China, and between our Secretary of State and their Foreign Minister, that can begin to talk about mutual interests and resolve the differences, which are differences of considerable importance, within the framework of working as partners with mutual interests. That is not possible in the current atmosphere. But what this bill says is that we should place human rights in China and in Tibet above anything else. The Korean Peninsula, the nuclear quest for arms in Korea, the 38,000 American troops that are in Korea, the stability of Northeast Asia, and even Taiwan-China relations. We are saying--if you take this seriously--that the President should not have any kind of visit to China until they act, in American terms, acceptably on human rights both in China and Tibet. Mr. President, on human rights, I think the United States is unique. But we will really be unique if we take this resolution seriously, because we would be the only country in the world that takes that position. Not a single ally--not one--has taken the position that their head of State should not visit China. That is what we are saying here-- that the President should not visit China. Mr. President, maybe we do not take these sense-of-the-Congress resolutions seriously. They are not law, and would not be binding the President. If we do not take them seriously and they are not important, how do we expect anybody else to take them seriously? Unfortunately, when we put resolutions like this in the bill, the only people that take them seriously are the people they affect adversely. And they react adversely. So I do not know what we are really trying to say here. But I know it is counterproductive. It would postpone, if not preclude, efforts to establish a much-needed strategic dialogue between the United States and China. Clearly, the dialog with China is more important than ever at this time-- unless we really want to go into a period of years of cold war and dangers of something far worse than cold war, in that part of the world. For the strategic dialogue between the United States and China to be successful in working to resolve our differences, participation is required on the highest levels of leadership. That means the President of the United States has an active role to play, whether it be President Clinton or President Dole in 1997. How soon this resolution would apply to ``President'' Dole, saying to him, ``You should not have any Presidential visit or dialog with China until they meet our terms on human rights''--I really have a hard time believing that we are serious about saying this. So whichever President is elected in 1996, that is what this resolution is saying. This is indefinite. This resolution says we do not think you should ever visit China until you have resolved the human rights questions in China and Tibet to our satisfaction. Mr. President, we have not treated any other country in the world this way. We do not treat Russia that way right now. We expect the President of the United States to meet with President Yeltsin, but most of us deplore what is happening in Chechnya, the continued killing of a tremendous number of innocent people there. We do not say to the President, ``Do not visit Russia.'' Mr. President, people forget that we are very proud of what Taiwan has done. Taiwan had an election under very serious pressure. We are proud of their economic progress. All of us have very close friends in Taiwan. These are some of the most productive, energetic people in the world. And this country is always going to have a very friendly relationship with the people in Taiwan. We were very patient with Taiwan. They were not a democracy, in our sense of the word, for years and years. We are celebrating democracy now. For 35 years, we supported Taiwan when they were not a democracy. We have had the same thing with the South Koreans. We celebrate what is happening in South Korea now, with the democratic election of a President. We went for years and years and years, where we spent literally billions of dollars helping defend South Korea when they did not meet our definition of human rights. It is only in recent years that they have. And now we single out China and say, ``We do not want our President talking to you, or visiting you, or having any dialogue with you, until you meet our definition of human rights.'' I really do not believe the Senate of the United States wants to say this tonight. That is what we will say if we pass this resolution. Mr. President, 7 years have passed since an American President, or Vice President, has journeyed to Beijing, or the President, or premier, of China has been in Washington. This provision would say to the President: ``please do not change this situation. This is a great policy. It is really working.'' Well, is it working? Does anybody think that helped our relations? I think this is a fundamental error that would be damaging to United States-China relations and United States foreign policy. This conference report's provisions attempt to deal with differences with China by prohibiting initiatives and efforts that would help resolve the very differences that we are frustrated about. Quoting from a speech I gave on China about 3 weeks ago: Not only must our expectations be realistic, but we cannot wait to engage extensively with China until it has become more like us. . . . We must engage with China and its current leaders now. . . . China's transition and its potential impels America, insofar as possible, to be actors on the scene. Mr. President, China is determined to preserve the areas it considers part of China, including Taiwan, Hong Kong, Macao, and Tibet. Passage of this legislation will inevitably cause China to harden its position. We should not make miscalculations regarding this. From the Chinese perspective, Tibet, like Taiwan, is considered to be an issue of sovereignty to be resolved internally by China and Tibet. In the Foreign Relations Authorization Act pending before us, it is expressed as the sense of Congress that ``Tibet * * * is an occupied country under the established principles of international law.'' That is what we are saying in this bill. Mr. President, as a matter of fact, longstanding United States policy is that Tibet is part of China. That is not a new policy by the Clinton administration. We have had that policy through a number of administrations. This is also shared by every member of the United Nations. Even the Dalai Lama does not go as far as this conference report. What are we doing? What are we doing? Do we know? Mr. President, I view with concern section 1303 of the act, which advocates establishing a special envoy for Tibet. That is what we are voting on. This provision would have the United States establish a level of official relations with Tibet--if you take it seriously--that undermines our longstanding, established Tibetan policy. More important, this provision would weaken our ability to influence Chinese policies in Tibet and would greatly weaken our influence to protect the people in Tibet from abuses, which we all know have occurred. My specific concerns are as follows: The proposed duties of the special envoy would duplicate and, I believe, greatly undercut responsibilities already being discharged by the United States State Department--that is, promoting dialog between the Dalai Lama and the Chinese Government concerning the religious and cultural integrity of Tibet and discussing the human rights problems in Tibet with Chinese Government officials. The President has already appointed, the Senate has confirmed, and the Chinese Government has accepted an envoy to all of China--and that is the United States Ambassador, resident in Beijing--our former colleague, Ambassador Sasser. The Chinese Government, in my view, would refuse to accept a special envoy for Tibet, and would in all likelihood make regular travel to Tibet impossible for United States diplomats. Is that what we want? Do we want to imply that Tibet is separate from China, and do we want to have a separate United States envoy, and probably in all likelihood result in virtually cutting off access of the United States to Tibet? Is that what we want? Because that is what we are voting on. Mr. President, this provision in my view would be counterproductive to its intended purpose. I am sure the purpose of the provision is to help the people of Tibet. My view is that it would be totally counterproductive to that end. The United States can maintain and promote good relations between the Dalai Lama and his representatives. We can promote the need for substantive negotiations to take place between the Dalai Lama, or his representatives, and senior members of the Government of China. We can coordinate United States Government policies, programs, and projects concerning Tibet, and we can carry out any other actions the President deems necessary with regard to Tibet without the need to establish a special envoy in the process. The United States cannot solve the question of Tibet on the floor of this Congress. Only the people in Tibet and the people all over China, including Tibet, can resolve their differences. A special envoy could neither contribute to this dialogue nor foster a solution, but is likely to be totally counterproductive. I will close by making just one additional observation on another provision, without getting into detail. Some of my other colleagues have already spoken on this. Section 1708 of the pending authorization bill states that ``the President of Taiwan should be admitted to the United States for a visit in 1996 with all appropriate courtesies.'' Mr. President, this provision, to say the least, is unwise at this point in time--unless we want to deploy our aircraft carriers, several of them, to the region, and spend a great deal of the next several years in the Taiwan Strait. Privilege of the Floor

Mr. NUNN. Mr. President, I reserve the remainder of my time. Mr. PELL addressed the Chair.

Mr. NUNN. Does anyone else have time at this point?

Mr. NUNN. Mr. President, I ask unanimous consent that Maurice Hutchinson, legislative fellow of my staff, be admitted privileges of the floor during the consideration of the bill.

Mr. NUNN

Mr. NUNN. Mr. President, I rise today to recognize the contributions to the Senate and to the Nation that have been made by Edward L. King who is leaving the staff of the Senate for the private sector. Ed King retired from the U.S. Army as a lieutenant colonel in 1969 after a distinguished military career, including combat infantry duty in Korea and assignments in important staff positions with an emphasis on NATO and inter-American matters. After his military service, Ed turned his hand to writing and authored ``The Death Of the Army: A Pre-Mortem'' which was selected by the New York Times Review of Books as one of the 12 best current events books of the year for 1972. In 1971, Ed came to the Hill for the first time, serving as a staff consultant to the Congressional Joint Economic Committee and later that same year as special consultant for NATO affairs to Senator Mike Mansfield. Ed returned to the Hill in 1975 and served as Administrative Assistant to Senator William Hathaway until 1979. Ed subsequently served as special assistant to Senator Paul Tsongas in 1984, during which time he acted as an intermediary to the La Palma--El Salvador-- peace talks. From 1985 to 1987, Ed served as a consultant on Central America to Senator Robert Byrd. Finally, Ed served on the Senate Democratic Policy Committee from 1987 to the present time. Over the last 10 years, Ed has worked as a senior foreign policy advisor for Majority Leaders Robert Byrd and George Mitchell and for Minority Leader Thomas Daschle. I first came to know Ed King while he was working on the Democratic Policy Committee. I also came to respect and admire Ed as he went from legislative crisis to crisis with the same calm but determined and effective demeanor that I am sure served him and his troops so well as a combat infantry officer. Whether the issue was pop-up legislation dealing with the Persian Gulf, Somalia, Haiti, or Bosnia or setting up a routine meeting for Senators with a visiting foreign official Ed was always on top of the situation, always in full control of the facts, and ready with a solution to bridge ostensibly irreconcilable positions. And despite the stress and the raised voices on the part of some, Ed never lost his good nature and sense of humor. But what I remember most of all were the numerous occasions on which a long stint of negotiations ended with the parties agreed on the general framework of a solution and leaving it to Ed to come up with the specific text that embodied that general solution. And you knew that the specific text would be ready the first thing the next morning and that it would have been agreed to on all sides at the staff level and vetted with and acceptable to the administration. Mr. President, the Senate is losing one of its finest staff members. The Nation is losing a fine public servant whose contributions will, for the most part, remain unknown. I, for one, want the record to reflect that this Senator appreciates the service that Ed King has rendered to the Senate and the Nation. I know that he will be successful in the private sector and that he will continue to make a contribution in whatever he does in the future.

Mr. NUNN

Mr. NUNN. Mr. President, I am pleased to join with the leaders of the Subcommittee on Personnel of the Armed Services Committee, Senator Coats and Senator Byrd, in addressing the review of the military nominations in the aftermath of Tailhook, including the nomination of Commander Robert Stumpf, U.S. Navy. Senator Coats has addressed this matter with extreme accuracy in an absolutely factual presentation, for which I applaud him, in making that presentation. The review of military nominations, particularly those involving adverse information, is a responsibility taken very seriously by the members of the Armed Services Committee, as the Chair well knows, being a member of that committee. This is a responsibility that the Constitution assigns to the Senate and the Senate has assigned to the Committee on Armed Services, as its, in effect, agent, to make recommendations to the full Senate. Within the committee, the responsibility of making recommendation on military nominations rests with the leadership of the Subcommittee on Personnel. Senator Coats and Senator Byrd, as chairman and ranking member of the Subcommittee on Personnel, have fulfilled this responsibility with skill, dignity, and absolute fairness. They have provided the committee with serious, sober, and balanced recommendations on military nominations. When the committee considered the promotion of Commander Stumpf on October 25, 1995, I listened, as other members did, with care to the presentation made by Senator Coats on behalf of himself and Senator Byrd. I found his assessment to be persuasive and I voted in favor of the recommendation of Senator Coats and Senator Byrd, that Commander Stumpf not be promoted. The subject of Commander Stumpf's promotion has been the subject of some attention in the Department of the Navy, among those who follow Naval aviation, and in the news media. I am pleased to join Senator Coats, Senator Byrd, and others, in placing this matter in the proper perspective. On March 13, 1996, the Armed Services Committee issued a statement concerning the committee's consideration of the promotion of Commander Stumpf, U.S. Navy. I ask unanimous consent that statement be printed in the Record at this point.

Mr. NUNN. Mr. President, I note that the letter I just referred to from Commander Stumpf faxed to us on March 13, 1996, was dated February 13, even though it was faxed to us on March 13. I have to assume that was a typographical error, unless there is another explanation. I am informed by the majority staff that the committee did not receive such a request until March 13 and certainly did not receive that prior to our review of Commander Stumpf's promotion in 1995. Mr. President, just in case anyone does not understand what it means to hold a closed session, let me make it clear. It is a proceeding in which the public is excluded. The press is excluded. Virtually all staff are excluded. The hearing record is not published. Under the Senate rules, Senators are specifically prohibited from disclosing information received in a closed session. When we hold a closed session, the committee is not free to tell the whole world what transpired before the committee. In light of Admiral Boorda's request that the information regarding Commander Stumpf not be released to the public, and in view of Commander Stumpf's request to proceed in closed session, the committee decided during its deliberations last week to not release materials from the nomination files. While I personally believe the materials should have been released in light of the decision by Commander Stumpf's attorney to selectively release information to the public, I respected the views of others--and still do--who felt the material should not be released at that time. Having decided on March 13 not to release the material in deference to the Navy and Commander Stumpf's privacy interests, the committee now finds itself subjected to yet another misleading story as a result of a statement in the press attributed to Commander Stumpf's attorney. A March 19, 1996, AP wire story states that he ``has no objection'' if the committee releases its material on Commander Stumpf. According to the story, Commander Stumpf's attorney said, ``I've told them they can release anything they want.'' Mr. President, I have received no such communication from Commander Stumpf's attorney. I have been informed again by majority staff that Senator Thurmond, the chairman of the committee, has received no such communication. I assume Senator Coats and Senator Byrd have received no such communication, and they are indicating that is accurate. I have no idea with whom the attorney, Mr. Gittins, is communicating, but it is not the Senate Armed Services Committee. Mr. President, if these press accounts accurately quote Commander Stumpf's lawyer--and I always allow that the press reports could be inaccurate--it would appear that the rules of the Senate and the committee designed to protect the privacy of nominees are being manipulated to imply a willingness to support and release information when, in fact, no such willingness has been communicated to the committee nor, as far as I know, to the Navy. I do not know what has been communicated to the Navy, but I certainly have not had any indication that Commander Stumpf's attorney has said to the Navy, ``Please release the information,'' or, ``You have our permission to release all the information.'' First, counsel is quoted as criticizing the committee for having closed sessions; then the press reports that the officer whose privacy is being protected by the committee wants everything made public. Then the Chief of Naval Operations, who supports the promotion and said so in the committee, says the material should not be made public. Subsequently, the officer requests a closed session. After the committee issues a statement reaffirming its commitment to the officer's privacy interests, his counsel is quoted as saying he told the committee again, ``They can release anything they want,'' even though no such communication had been received by the committee. If Commander Stumpf's attorney wants all the information related to his client released to the press, he should clearly communicate his views to the committee and the Navy. I suggest a letter would be the normal way to communicate. The Navy has full authority to release all documents related to Commander Stumpf, including the investigation into matters relating to Tailhook, the recommendations of the chain of command, and the final action taken on that investigation by the Navy. All of that can be released, and then the Senate can decide whether the committee was correct or not. The news media can then make their judgment accordingly. procedural considerations In the December 19, 1995, Washington Times, Commander Stumpf's attorney is quoted as stating the committee denied his client the opportunity ``to face his accusers, cross-examine them and test the so- called evidence that the committee had collected.'' The March 1996 Armed Forces Journal International reported that ``Stumpf and Gittins asked to speak to the Senators on the committee, offered to testify, and attempted to discover what new evidence the committee had uncovered. All requests were refused.'' Mr. President, I am informed again by majority staff that the committee received no letter from Commander Stumpf's counsel, prior to the committee action on October 25, 1995, requesting his client be allowed to testify before the committee, nor did counsel for Commander Stumpf submit a request to discover additional information. The materials provided by the Navy make it clear that CDR Stumpf was well aware that the matter of his promotion was pending before the Committee. On June 30, 1995, he received the statutorily required notice from the Navy that his promotion was being delayed, and he was specifically notified that his involvement in Tailhook was under review by the Armed Services Committee. The majority staff has advised me that the committee received one letter from CDR Stumpf's counsel, dated August 2, 1995, prior to completion of our review on October 25, 1995. That letter provided counsel's view of CDR Stumpf's military record and the proceedings involving his client in the aftermath of Tailhook. The only specific request of Chairman Thurmond set forth in the letter was to ``end the delay in the SASC review.'' CDR Stumpf's attorney noted that he was available for discussions, but did not make any specific request regarding testimony by his client or discovery of evidence: Should you or your staff have any questions, please do not hesitate to call. Further, I would be pleased to review with you or a member of your staff the facts as they were established at the Court of Inquiry. From the Committee's perspective, this did not constitute a request that his client be permitted to testify at a Committee hearing, nor did it constitute a request for further information about the materials under review by the Committee. CDR Stumpf's counsel apparently chose to proceed without submitting a specific request for a hearing, without submitting a specific request that his client be permitted to testify, and without submitting a specific request for further details about information available to the Committee. If discussions with individual members or staff raised any questions about the Committee's willingness to entertain such requests, he had the opportunity to provide an unambiguous request in writing. He did not do so. Whether his tactical decisions at the time were in the best interests of his client is not a matter for the Committee to judge. Each one of those matters, if clearly communicated to the Committee, would have been given appropriate consideration. It is well known that nomination proceedings are not criminal trials. They are not formal evidentiary proceedings. They are designed to assess the fitness of a nominee for higher office. If counsel for a nominee believes that the informality of a nomination proceeding is inappropriate in his client's case, then it is his responsibility to bring his concerns to the attention of the Committee. If he does not do so, it is puzzling for him to now claim that his client was denied rights that he did not request when the matter was pending before the Committee. reliance on information provided by the navy Commander Stumpf's attorney is quoted in the December 19, 1995, Washington Times as stating that the committee's decision to recommend that he not be promoted was based on ``rumor and innuendo and anonymous phone calls.'' As the Senator from Indiana said very clearly, that is flat wrong. The committee's recommendation was based on the records of the fact- finding board that reviewed Commander Stumpf's activities relating to Tailhook--the Navy fact-finding board--as well as other documents officially transmitted to the committee by the Navy. I am informed by the Navy that Commander Stumpf had full opportunity at the fact-finding board to testify, to present evidence, and to cross-examine witnesses. Mr. President, that is the record that we have been primarily focusing on. The Navy has advised the committee that it has provided all of these materials to Commander Stumpf, so he knows what these materials are. The committee did not rely on rumors. The committee did not rely on innuendo. The committee certainly did not rely on anonymous phone calls. An ``Op-ed'' piece by CDR Stump's attorney in the February 2, 1996 Washington Times states that the Senate relies on ``largely false and discredited allegations of misconduct collected by the Pentagon inspector general . . . to make their decisions on Navy promotion nominations.'' That is an inaccurate and incomplete description of the Committee's procedures for reviewing Navy and Marine Corps nominations in the aftermath of Tailhook. After the Navy turned the Tailhook matter over to the DoD Inspector General, the IG conducted an investigation. The results of the investigation were returned by the IG to the Navy for further proceedings, including administrative or disciplinary proceedings where appropriate. DoD/IG materials do not provide the primary source of information used by the Committee. In virtually all cases, including the case of CDR Stumpf, the Committee has relied primarily on material from the proceedings conducted by the Navy after the DoD/IG investigation, as well as related documents provided by the Navy. It is noteworthy, however, that in at least one well known, contested nomination, many Senators placed significant reliance on information developed by the DoD Inspector General, rather than in a Navy proceeding. That was the nomination of Admiral Kelso to retire in grade, in which the military judge in a Tailhook court-martial, Captain William T. Vest, Jr., opined that Admiral Kelso observed misconduct at Tailhook, whereas the DoD Inspector General, who reviewed the judge's opinion in light of the IG's investigations, concluded that Admiral Kelso did not observe the misconduct. As one who fought hard on the Senate floor for ADM Kelso's confirmation, I do not believe that Navy and Marine Corps nominees would want the Committee to preclude consideration of such material from the DoD/IG. Commander Stumpf's attorney, in a February 2, 1996, op-ed article, attempted to analogize his client's case to that of Adm. Joseph Prueher. According to Commander Stumpf's attorney in this February 2, 1996, op-ed piece in the Washington Times, ``Just last Friday, the Senate failed to vote to confirm Adm. Joseph Prueher as Commander, U.S. Pacific Command. The reason? A few Senators, bowing to feminist pressure, decided to revisit, for the third time, Admiral Prueher's handling of a sexual harassment case while superintendent of the U.S. Naval Academy.'' Mr. President, I am sure that the Navy, as well as Admiral Prueher, were just as surprised as I was to learn on February 2 from Commander Stumpf's attorney that Admiral Prueher's confirmation had not gone through. The Senate received Admiral Prueher's nomination on Wednesday, January 10; the Armed Services Committee reported him out of committee on Friday, January 26; and the Senate unanimously confirmed him on Tuesday, January 30, 2 days before the op-ed piece appeared in the Washington Times. The date of the admiral's confirmation, January 30, was the first day the Senate was in session after the nomination was reported out of committee. That is prompt action by any standard. Moreover, the date of Admiral Prueher's confirmation by the Senate, January 30, was 2 days before Commander Stumpf's attorney wrote in the Washington Times that the Senate was ``bowing to feminist pressure.'' In the same article, Commander Stumpf's attorney stated: ``The Senate now fancies itself as a super selection board, reviewing de novo executive branch promotion decisions for political advantage.'' That opinion has been echoed by others, such as the statement in the March 1996 Armed Forces Journal International that ``Cmdr. Stumpf is being sacrificed on the altar of political correctness''. As I noted earlier in my statement, Senator Coats and Senator Byrd, as leaders of the Personnel Subcommittee, have the unenviable task of taking the lead in reviewing nominations involving adverse information. I have been chairman of the Manpower Subcommittee. That is the first subcommittee I headed after I became a member of the committee. I know how hard that job is. It is one of the most important jobs, one of the most difficult jobs. I think we owe both Senator Coats and Senator Byrd a great deal of gratitude for the work they do. They have given the committee a serious, sober recommendation in each case based on the merits. I do not believe that anyone can seriously argue that they or the committee have gained any political advantage by taking on this responsibility. If there is any political advantage attached to it, then someone is going to have to explain it to me. After being in the Senate for 24 years, I cannot think of anything that has less political advantage to it than this tough, hard, but absolutely essential job. This is not something that the Senate grabbed. This is something that the Constitution of the United States gives to the Senate, a responsibility. We are doing our constitutional duty. If anyone does not think the Senate ought to be involved--``get the Senate out of the Navy''--then they ought to change the Constitution of the United States. This is our duty. It is our duty. As long as I am on the committee, I, for one, will continue to exercise that duty. Mr. President, the committee has a keen appreciation for the values that differentiate military service from civilian society, the requirements of good order and discipline in the armed forces, and the standards of responsibility and accountability applicable to military commanders--including their responsibility and accountability for the morale and welfare of their troops. The committee also has a clear understanding that a promotion is not a reward for past service; it is a judgment on the fitness of an officer for higher levels of command and responsibility. Mr. President, it has been the traditional practice of the Committee on Armed Services to look primarily to the statutes, regulation, and time-honored customs of military service in assessing adverse information on a nominee. One of those standards is the affirmative obligation of commanding officers, under section 5947 of title 10, United States Code, to demonstrate ``a good example of virtue, * * * to be vigilant in inspecting the conduct of all persons who are placed under their command; to guard against and suppress all dissolute and immoral practices; * * * and to take all necessary and proper measures, under the laws, regulations, and customs of the naval service, to promote and safeguard the morale, the physical well-being, and general welfare of the officers * * * under their command or charge.'' Article 0802.1 of the Navy regulations makes it clear that commanding officers operate under a higher standard of responsibility, and that they are not relieved of that responsibility simply because they are not present during misconduct or a mishap: The responsibility of the commanding officer for his or her command is absolute, except when, and to the extent to which, he or she has been relieved therefrom by competent authority or as provided in these regulations. The authority of the commanding officer is commensurate with his or her responsibility. While the commanding officer may, at his or her discretion, and when not contrary to regulations, delegate authority to subordinates for the execution of details, such delegation of authority shall in no way relieve the commanding officer of continued responsibility for the safety, well-being and efficiency of the entire command. Article 0802.4 of the Navy Regulations places a special responsibility on commanding officers with respect to their conduct and the conduct of their subordinates: The commanding officer and his or her subordinates shall exercise leadership through personal example, moral responsibility and judicious attention to the welfare of persons under their control or supervision. Such leadership shall be exercised in order to achieve a positive, dominant influence on the performance of persons in the Department of the Navy. Mr. President, these are not post-Tailhook standards. These are not ``politically correct'' rules of the nineties foisted on the Navy by ``feminist pressure.'' Those standards were in effect at the time of Tailhook and reflect bedrock principles of good order and discipline. The committee also looks to the standards in section 654(a) of title 10, United States Code, which states: (8) Military life is fundamentally different from civilian life in that-- (A) the extraordinarily responsibilities of the armed forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and (B) the military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society. (9) The standards of conduct for members of the armed forces regulate a member's life for 24 hours each day commencing upon entry on active duty and not ending until that person is discharged or otherwise separated from the armed forces. (10) Those standards of conduct, including the Uniform Code of Military Justice, apply to a member of the armed forces at all times that the member has a military status, whether the member is on base or off base, and whether the member is on duty or off duty. Those findings reflect some of the most fundamental, enduring values of military service. Mr. President, the Armed Services Committee has reviewed Navy and Marine Corps nominations in the aftermath of Tailhook, including CDR Stump's promotion, in the context of these well-known military standards. In light of these standards, it would have been irresponsible for the Committee to ignore adverse information related to a nominee's conduct or leadership at Tailhook 91, set forth in information provided to the Committee by the Department of Defense-- particularly in view of the military significance of that event. Tailhook 1991 was designed and promoted to showcase the aviation components of the Department of the Navy. The Navy actively encouraged members to attend to enhance their professional military development. The Navy provided significant financial, logistical, and personnel support--including featured presentations by the Secretary of the Navy, the Chief of Naval Operations, the Assistant Chief of Staff (Air Warfare), and numerous other Navy and Marine Corps officers and civilian officials. Many military personnel traveled under government orders, which paid for their transportation, food, and lodging. Over 1,700 were transported at government expense, Tailhook 1991 was a showcase event where all officers, particularly those in command, were under an obligation to ensure that their conduct, and that of their subordinates would represent the very best in the U.S. Navy and U.S. Marine Corps. The failure of some to demonstrate appropriate standards of conduct and leadership is an appropriate consideration in assessing an officer's fitness for promotion. Mr. President, I also reject any suggestion that the committee acted out of political motivation or as a result of outside pressures. Mr. President, I personally talked to every Secretary of the Navy since Tailhook came up and every Chief of Naval Operations since Tailhook came up. I have cautioned them against overreacting. I have cautioned them against denial of due process for individuals accused of inappropriate behavior. I have cautioned them against unlawful command influence. I have done that personally. I have felt it was my responsibility to counsel the Navy not to overreact and to give to their own members the kind of due process that they deserve. During my tenure as chairman I assured every civilian and military leader of the Department of Defense and the Department of the Navy involved in nominations that the committee would carefully consider each nomination on the merits, and that they should not hesitate to recommend promotion in any case where the Navy deemed it appropriate. The committee has ensured that when the Navy recommends promotion in a case involving a Tailhook certification, we are provided with the Navy's official information, not rumor, innuendo, or anonymous information. When the committee has received information from the Navy bearing on an individual's conduct or leadership at Tailhook, we have considered it carefully and judiciously on a case-by-case basis. Let us look at the facts. Since Tailhook, the committee has approved 36,839 Navy nominations, 6,431 Marine nominations, a total of 43,270 nominations in the Navy and Marine Corps since Tailhook. During that period, how many have we not recommended because of Tailhook matters? A total of 8; 8, a total of 8. You would not think that from some of the hysteria going on in some of the news coverage, particularly editorials that I have seen. Let me repeat, the committee has approved 43,270 Navy and Marine Corps nominations and turned down only 8 since Tailhook came up. During the same period, 15 officers who were the subject of administrative action by the Navy as a result of Tailhook have been confirmed by the Senate. These figures clearly demonstrate that the committee has reviewed each of these nominations involving a Tailhook certification on the merits. While reasonable people could come to different conclusions on those who were recommended, as well as those who were disapproved, the fact is, we have not indiscriminately rejected anyone who had been investigated in connection with Tailhook. I have personally taken the floor of the Senate to try to get nominations through and have succeeded virtually in every case, with the help of the committee and the good judgment of the Senate, that were bitterly opposed here on the floor relating the Tailhook. I think people ought to have a little knowledge of history. I do not expect people to understand everything that has been done, but there ought to be some slight knowledge and acknowledgement of the history of how we handled this whole matter of Tailhook. Someone ought to recall also the Secretary of the Navy decided that the Navy botched this investigation so badly that he himself, back in 1992, in a previous administration, removed the Navy from the investigative responsibilities because it had been so badly botched. It is also important to contrast the Senate's action with the results of action taken within the executive branch. As a result of the actions taken by the Navy and Marine Corps, 39 officers have had their careers adversely affected. Twelve officers were rejected by promotion boards, another 12 who were selected by a board subsequently were removed from a promotion list within the executive branch, and another 15 officers resigned or retired before being considered for promotion after receiving adverse administrative action by the Navy. In other words, the number of officers whose careers have been adversely affected by the Navy outnumbers the officers returned by the Senate by a ratio of more than 4 to 1. Mr. President, this Committee has a strong record of support for military nominations, even in the face of considerable criticism. We have been willing to take the political heat. We did it in the case of Admiral Kelso. We did it in the case of Admiral Mauz. We did it in the case of Admiral Prueher. We have done it in the case of 15 nominees who were confirmed even though administrative action had been taken against them as a result of Tailhook. There was no political advantage in our action, but we did it because it was the right thing to do. oversight, leadership, and responsibility Mr. President, the Armed Services Committee has a vital oversight role over the Armed Forces, including matters involving nomination and promotions. The Navy failed to provide the Armed Services Committee with the information required to assess Commander Stumpf's fitness for promotion prior to the Senate's vote on his nomination. It was incumbent on this committee to conduct a review of that promotion when information was belatedly turned over to the committee. I am informed by majority staff that, prior to the Committee's October 25, 1995, decision to recommend that Commander Stumpf not be promoted, his attorney did not raise a legal objection to the propriety of the committee's review. Although the obvious outcome of any such review would be a communication to the Secretary of the Navy regarding the merits of Commander Stumpf's promotion, counsel did not raise a legal objection to any communication from the committee to the Secretary. Counsel for Commander Stumpf was well aware of the committee's review of his client's promotion, as reflected in his August 2, 1995, letter to Senator Thurmond discussing the review and the action taken by the Secretary of the Navy to delay Commander Stumpf's promotion. The letter vigorously supported the merits of his client's promotion and requested that the committee complete its review. The letter, however, did not state any legal objection to the committee's review, the action of Secretary Dalton in delaying the promotion, or to any communication from the committee to the Secretary on the merits of the promotion. As I noted earlier, the committee's letter of November 13, 1995, specifically advised the Secretary of the Navy that: The committee recognizes that, in light of the Senate having given its advice and consent to Commander Stumpf's nomination, the decision to promote him or not to promote him rests solely within the executive branch. Let me repeat that, Mr. President. We made it very clear that ``the decision to promote him or not to promote him rests solely within the executive branch.'' Mr. President, those were not idle words. We fully recognized that the Secretary of the Navy--acting under a delegation of authority from the President--has unfettered discretion under section 629 of title 10, United States Code, to remove or not remove the name of an officer from a selection board list. On December 22, 1995, Secretary Dalton directed that Commander Stumpf's name be removed from the promotion list. Mr. President, I would like to make my own position clear. These are tough decisions. I do not quarrel with anyone who comes to a different conclusion. They involve subjective judgment. Different people draw the line between right and wrong in different places. Based upon the information available at the time, we made our decision. I made my judgment about right and wrong, and I made my judgment about the question of leadership. That judgment was based on the recommendation, the very thoughtful recommendation, of Senator Coats and Senator Byrd. Others may have a different definition of right and wrong. Others may have a different definition of leadership. They have every right to their perspective. All of us have some obligation to strive for consistency in drawing the line, consistency between officers who may have been involved in similar circumstances. To draw one line for officers in the Navy and another line for officers in the Marine Corps relating to the same event, to me, is totally unacceptable. The promotion process must ensure that all officers meet the high standards of conduct and leadership that demonstrate potential for leadership at a higher grade. This is appropriate not just for the Navy, but for the Army, Air Force, and for the Marine Corps. Does the Navy now want to set a standard for leadership lower than the Marines? Does the Navy want to set a standard of leadership lower than the Army? Does the Navy want to set a standard of leadership lower than the United States Air Force? That is a question that the Navy leadership has to answer. Mr. President, if the Navy's withholding of information prior to the Senate's confirmation of Commander Stumpf was the result of administrative error, then the Navy's administrative process needs review and overhaul. These administrative errors deprived Secretary Perry, the Secretary of Defense, of the information he needed to make his recommendations to the U.S. Senate and to the President. These administrative errors deprived the Armed Services Committee of the information that we needed to make a recommendation to the Senate. These administrative errors deprived the Senate of the information it needed prior to deciding whether Commander Stumpf should have been confirmed. In closing, Mr. President, I make the following points: First, my review of the material provided to the committee by the Navy, including the record of the conduct, review, and disposition of the proceedings of the factfinding board confirms my assessment that Senator Coats' recommendation to the committee was sound, and that the committee's October 25, 1995, recommendation that Commander Stumpf not be promoted was appropriate. Second, it was appropriate to the committee to communicate its recommendation to the Secretary of the Navy, particularly in light of the Navy's failure to provide the committee with the information it had pledged to provide prior to the committee's recommendation to the Senate that Commander Stumpf be confirmed. Third, it was appropriate for the committee to remind Secretary Dalton that he had unfettered direct discretion to promote or not promote Commander Stumpf, which we did in the letter. If Secretary Dalton believed in December that Commander Stumpf's promotion was warranted, he could have promoted him at that time. The letter made that absolutely clear. Fourth, the executive branch has an obligation to conduct a thorough review of adverse information with respect to all nominations, including but not limited to Tailhook. In terms of the issues of conduct and leadership bearing on the individual's fitness for promotion, the question in Commander Stumpf's case, for example, was not whether he was guilty of a crime, but whether he met the standards of leadership that would qualify him for a promotion to a higher grade. Fifth, the executive branch must strive for consistency in its approach to military nominations, and consistency is essential for fairness. Although each proposed nomination must be judged on its own merits and its own facts, it is critical that careful attention be paid to issues of consistent treatment, particularly when adverse information is related to a single event such as Tailhook. The Navy leadership has effectively forced 39 officers to retire or resign or has removed their names from promotion lists for Tailhook-related matters. The committee has a very difficult time justifying favorable action on other nominees whose conduct or leadership deficiencies appear to be worse than those who were not nominated or who were forced to retire or resign by the United States Navy. Sixth, the Navy should determine whether Commander Stumpf's attorney is serious about the public release of information concerning his client. If so, the Navy should not be selective in the release of information. The Navy should make available a complete record of proceedings concerning Commander Stumpf in the aftermath of Tailhook, including the full record of proceedings, review, recommendations, and action on the fact-finding board. If they do, there will be no mystery anymore and everybody can make their own considered judgment. Seventh, after learning that the Navy had failed to provide the committee with information about Commander Stumpf, prior to the committee's action on his nomination, the committee requested the Navy to provide ``a complete description of the conduct, review and disposition of the allegations concerning Commander Stumpf''. The Navy provided information to the committee in response to this request. Subsequent to the committee's October 25, 1995, meeting on Commander Stumpf's nomination, the Navy has provided the committee with additional information, including information on the review and disposition of the allegations concerning Commander Stumpf, which we asked for to begin with. The Navy needs to explain why, after failing to provide the commitee with timely information prior to the confirmation of Commander Stumpf by the Senate, the Navy subsequently did not provide the committee with complete information on the review and disposition of the allegations. Finally, Mr. President, and what I number as eighth, section 629 of title 10, United States Code, provides that ``An officer whose name is removed from a list continues to be eligible for consideration of promotion''. As noted in the statement issued by the committee on March 13 with respect to Commander Stumpf, quoting from the letter, ``If he is nominated again for promotion to captain, the committee will give the nomination the same careful consideration it would give to any nominee''. I certainly concur in that. For my part, I would carefully consider any information that might be presented by Commander Stumpf or on his behalf. I would consider the full record of information provided by the executive branch, and I would certainly take into consideration the views of my colleagues on the Armed Services Committee on both sides of this issue, before reaching a final conclusion on the merits of such a nomination, should it be submitted to the Senate. Mr. President, I close by saying I do not believe that the committee held Commander Stumpf responsible for the Navy's administrative errors. If Commander Stumpf is nominated in the future, I would separate these matters, and I would view the Navy's administrative errors as separate and apart from Commander Stumpf's nomination. Exhibit 1 Robert E. Stumpf, 2616 Boush Quarter, Virginia Beach, VA, February 13, 1996. Hon. Strom Thurmond, Chairman, Senate Armed Services Committee, U.S. Senate, Washington, DC. Dear Senator Thurmond: As it appears that the Committee continues to have lingering concerns about my promotion and my attendance at the Tailhook 1991 Symposium, it may be beneficial to the Committee to hear from me personally. Accordingly, I respectfully request to meet with the Committee in closed session at the earliest opportunity to address Committee questions or concerns. Very truly yours, Robert E. Stumpf, Commander, USN.

Mr. NUNN. Mr. President, I believe that statement has already been alluded to by my friend from Indiana. Commander Stumpf had a distinguished military record, including decorated combat service. That record was considered strongly by the committee in the review of his promotion. The Navy also provided the committee with information, subsequent to his confirmation by the Senate, which raised issues about Commander Stumpf's qualifications for promotion to a higher grade. As with almost any nomination involving such information, factual information, reasonable people can disagree on whether the information considered by the committee disqualified Commander Stumpf for promotion. I respect my colleagues, and others, who come to a different conclusion than I. The significance of the committee's statement that has just been printed in the Record is that both those who support Commander Stumpf's promotion and those who do not support his promotion have agreed that the Armed Services Committee, quoting the committee, ``* * * acted in good faith and in accordance with established rules and procedures, including procedures designed to protect the privacy and reputation of nominees, with appropriate regard for the rights of Commander Stumpf.'' That was a unanimous statement of the Armed Services Committee. In addition, all the members of the committee agreed, ``Much of the material that appeared in the media about the substance and procedural issues surrounding this matter is inaccurate and incomplete.'' That, too, was a unanimous opinion of the Armed Services Committee, including both those who favored the Stumpf nomination and those who did not. The inaccurate stories, unfortunately, continue. The March 15 Washington Times asserts, for example, that there was, ``* * *. an effort to rescind the committee's November 1995 letter,'' recommending that Commander Stumpf not be promoted. That statement in the Washington Times is misleading. I was there for the whole meeting. No such motion was made or voted on. No such motion was ever made or voted on in the committee. procedures of the senate armed services committee for the consideration of nominations Mr. President, before addressing issues that have been raised about the Committee's consideration of CDR Stumpf, I would like to summarize the Committee's procedures for handling Navy and Marine Corps nominations in the aftermath of Tailhook. The Department of Defense provides the committee with a letter on all flag and general officer nominees in the Army, Navy, Air Force, and Marine Corps advising the Committee of any potentially adverse information since the individual's last confirmation. In 1992, when the committee learned of the serious flaws in the Navy's Tailhook investigations, we established a similar requirement for Navy and Marine Corps nominees of all grades--a procedure that was supported by all members of the committee. The then-chairman and ranking minority member of the Manpower Subcommittee, Senator Glenn and Senator McCain, were instrumental in establishing that process. Had we not done so, it is doubtful we could have moved any Navy/Marine Corps nominations through the Senate in view of the serious concern in the Senate about the inability of the Navy to investigate itself and identify those who were involved in misconduct or leadership deficiencies. In August 1993, the Department of Defense proposed that the Tailhook procedure be modified in view of the completion of the additional investigations, and the Committee concurred. Under the modified procedure, DOD notifies the Committee as to whether any nominee was identified as potentially implicated by the Department of Defense Inspector General or by the Department of the Navy. With respect to any individual so identified, DOD advises us of the status of any administrative or disciplinary action. In April 1995, Senator Thurmond, as Chairman, specifically rejected a request from the Department of the Navy to change these procedures, noting that decision would have to be made by the Committee. It is the longstanding policy of the committee--under both Republican and Democratic chairmen--that when we consider adverse information about a nominee--whether related to Tailhook or any other matter--we do so in closed session. Senate Rule 26.5(b)(3) authorizes a closed hearing when the matters to be discussed ``will tend to charge an individual with crime or misconduct, to disgrace or injure the professional standing of an individual, or otherwise to expose an individual to public contempt or obloquy, or will represent a clearly unwarranted invasion of the privacy of an individual.'' The committee's practice of conducting nomination proceedings involving adverse information in closed session is based upon concern for the interests of the military officers whose nominations are pending before the committee. In the overwhelming majority of cases, the adverse information provided to the committee involves minor infractions which have been addressed internally by DOD and which the committee determines to be not disqualifying. In view of the fact that adverse information about an officer considered by the committee is determined to be not disqualifying in most cases, few if any officers would want this information to be considered in a public session. In the relatively few cases where the Committee does not take favorable action, neither the Service nor the officer normally seeks to publicize the adverse information. When the committee publicly discusses the basis for rejecting a nomination, it normally is in the context of a report on systemic problems. consideration of the promotion of cdr stumpf The committee's traditional procedures for reviewing nominations in closed session, as well as the procedures for considering Navy and Marine Corps nominations in the aftermath of Tailhook, were in place when the committee considered the promotion of Commander Stumpf. As I noted earlier, the members of the committee who supported his promotion as well as those who opposed the promotion have agreed the committee followed the appropriate procedures in addressing this matter, and the letter so indicates. That opinion, apparently, is not shared by Commander Stumpf's attorney, Mr. Charles Gittins. Although the committee took no steps to publicize its October 25, 1995 decision to recommend that Commander Stumpf not be promoted, nor did the committee release any of the information that led the committee to recommend against his promotion, Commander Stumpf's attorney has made repeated public comments about the committee's consideration of Commander Stumpf's promotion. In the December 19, 1995, Washington Times, Commander Stumpf's attorney, Mr. Gittins, was quoted as accusing the committee of operating on the basis of ``rumor and innuendo.'' A CBS Evening News interview on January 8, 1996, quoted Commander Stumpf's attorney as stating his client was removed from the promotion list as a result of ``blackmail.'' In the January 31, 1996, Washington Times, Commander Stumpf's attorney was quoted as stating that the decision was a result of ``political pressure and threats to Navy programs.'' In a February 2 op-ed piece in the Washington Times entitled ``Get the Senate Out of the Navy,'' Commander Stumpf's attorney asserted that his client was not promoted as a result of ``political pressure'' and that the Armed Services Committee was acting ``for political advantage.'' He concluded: ``Senator McCarthy may be gone, but McCarthyism lives on in the Senate.'' These statements have spawned a host of editorials, columns and letters which have painted a picture of this matter which, as noted in the statement issued by the committee on March 13--with unanimous committee approval--``is inaccurate and incomplete.'' For the last 3 months, Commander Stumpf's counsel and advocates have argued his case in the public arena, citing only those portions of the material favorable to his cause. Material that would have given a complete picture of the basis for the committee's recommendation has not been released, was not released by Commander Stumpf, was not released by his attorney, and has not been released by the committee, because the committee has been restrained by a self-imposed gag order. Why have we not responded? Because we play by the rules, and we do not release materials from our nomination files without a vote by the committee. It is interesting to note that those of us who have been under attack--and I appreciate very much the statement of the Senator from Indiana--those who have been under attack have not leaked anything in self-defense or in any other way. Nothing has been leaked on the committee's side of the issue. So it is an interesting kind of committee restraint here. Indeed, the committee has shown remarkable restraint. As Members of the Senate know, I believe we should conduct most--not all--most nomination proceedings involving adverse information in a closed session. I discussed this matter at length in a speech I delivered on this floor on October 16, 1991, in the aftermath of the proceedings on the nomination of Justice Clarence Thomas, which was in the Judiciary Committee, not our committee. I also believe, however, that when a nominee chooses to place his or her version of the facts in the public arena and challenges the motives and the good faith of the committee--indeed, statements like McCarthyism, and so forth--the committee must find an appropriate way to respond. Although the committee provided a general response on March 13, the committee decided at that time to not release specific information about Commander Stumpf. There is no nomination now pending before the committee. The committee deferred to the views of the Chief of Naval Operations, Admiral Boorda, who testified in a public hearing on March 12 when I asked him a question, that they did not favor public dissemination of nomination information in this case. That is the view of the Chief of Naval Operations. While I do not concur in that view because of the unique circumstances of this matter being handled, in effect, in a public relations matter in the public arena, since it results in a one-sided public presentation of information, I understand and respect those who believe we should not release any information when this matter is no longer pending before the committee. I deferred to that view in committee, because it was, obviously, the view of the majority. The committee has agreed, however, that it is appropriate for Senators to identify the areas in which the statements in the media are inaccurate and incomplete. Consideration of Commander Stumpf's Nomination in Closed Session Commander Stumpf's attorney, in the December 19, 1995, Washington Times, is quoted as criticizing action of the Armed Services Committee because the committee has ``operated behind closed doors'' when considering his client's case. As I noted earlier, the committee considers adverse information in closed session. We do that all the time. That is our normal operating procedure, and that is done in order to protect the reputation of nominees, a process that is strongly supported by the U.S. military. As far as I know, all branches of the military support that procedure, as well as the civilian leadership of the Department of Defense. Prior to the committee's October 25, 1995, decision to recommend Commander Stumpf not be promoted, the committee received no letter from his attorney requesting that we proceed on this nomination in open session. We received no such letter, no such information, no such request, according to all the information I have received, checking with both majority staff and minority staff. Commander Stumpf's attorney apparently made a tactical decision not to request an appearance or an open session. Having made that decision, how can he now fault the committee for reviewing the promotion in closed session in accordance with longstanding committee procedure, which we do on all nominations that have adverse information of a personal nature. It is not clear Commander Stumpf's attorney wants this matter to be considered in public. The March 12 Wall Street Journal reported, ``Commander Stumpf and his attorney say that the committee should feel free to tell the whole world whatever it is the Senators think they know about him.'' That was a story for public consumption. That was a PR story. Yet, on March 13, 1996, as the committee was completing our review of Tailhook matters, the committee received a letter from Commander Stumpf faxed from his attorney's law firm, I am told, in which he asked to meet with the committee ``in closed session.'' Mr. President, I ask unanimous consent that the letter from Commander Stumpf, as well as Chairman Thurmond's response, be printed in the Record at the conclusion of my remarks.

Mr. NUNN

Mr. NUNN. Mr. President, the current tension in the Taiwan Strait creates a very dangerous situation. While I do not believe that China intends to invade Taiwan, there is always the risk that accident or miscalculation could lead to conflict. China's actions have been precipitated by its perception that Taiwan is unilaterally seeking independence. While I regret that it is necessary, I applaud the decision by President Clinton to send two carrier battle groups to the region. I would have preferred that no legislation or concurrent resolutions be passed by Congress in the current tense situation but I am opposed to the resolution passed by the other body and believe that it is necessary for the Senate to go on record on this important matter. Mr. President, the concurrent resolution we are considering this afternoon is reasoned and responsible and is designed to make a constructive contribution to the situation. It is important because it recognizes that the one China policy that is based upon the three United States-China joint communiques has been and is being adhered to by the United States. It is important because it deplores the People's Republic of China's recent military actions and urges China to cease its action and to enter into a meaningful dialogue with Taiwan. It is important because it reminds everyone of the provisions of the Taiwan's Relations Act. And finally it is important because it states that the Government of Taiwan should remain committed to the peaceful resolution of its future relations with China by mutual decision. Mr. President, as I noted in my floor speech on United States-China relations last month, the framework of the three communiques and the Taiwan Relations Act has served both sides of the Taiwan Strait as well as the United States well for almost 16 years. That framework made possible the relaxation of tensions in the Strait; has encouraged Taiwan to abolish martial law and become a prosperous democracy; made available to the Chinese on the mainland that talent and capital of the people on Taiwan; it played a major role in China's drive for modernization; and it produced a sense of security for China, for Taiwan, and the region. The thrust of this concurrent resolution is to remind both sides of the Taiwan Strait of these facts and to encourage them to maintain that framework--both its letter and its spirit. Mr. President, I would like to repeat what I said at the end of last month's floor speech because it continues to sum up my thinking on this subject and is, I believe, totally consistent with this concurrent resolution. Americans feel close to the people of Taiwan and are proud of their accomplishments. The people of Taiwan have made enormous strides economically and politically. They are an example to much of the developing world. It is important for the United States, as a friend, to be clear with the Taiwanese that they must not misjudge China on the question of Taiwan independence. It is important that the people of Taiwan understand that a unilateral declaration of Taiwan's independence would be inconsistent with United States foreign policy as set forth and followed by President Nixon, President Ford, President Carter, President Reagan, President Bush, and President Clinton. It is also important for the Chinese to understand that the United States values its friendship and relationship with the people on Taiwan. It is crucial that the Chinese understand that if China uses force to resolve the Taiwan issue, the United States will not stand idly by but will surely respond. For our part, the U.S. should make it very clear that we will oppose either side's attempt to change the status quo either by the use of force by Beijing or by unilateral declaration of independence by Taiwan. The United States position should be clear that we are prepared to live with any outcome negotiated in good faith between China and Taiwan. The future of Taiwan must be settled by mutual agreement between the parties, not by the unilateral actions of either. For that to happen, Taipei must stop its political provocations and Beijing must stop its military provocations. The people of China and the people of Taiwan should resume a high-level dialogue to foster clear understandings and increased cooperation. Enormous progress has been made in economic cooperation and people-to-people contacts and visits on both sides of the Strait. While economic development and people-to-people cooperation are emphasized, political questions are complicated and emotional and their resolution will require a long-term effort. This will involve a trait for which the Chinese people are famous--patience. Mr. President, I support this concurrent resolution.

Mr. NUNN

Mr. NUNN. Mr. President, the Air Force Times (March 25, 1996 edition) contains a story entitled ``Senate Delays Ryan Nomination.'' The story states that Lieutenant General Ryan's promotion to a fourth star ``is being delayed in the Senate according to congressional and military sources.'' The story adds that the ``reasons for the delay were unclear as of March 15, but sources said Ryan's involvement in the Buster Glosson affair in 1994 may be tied to the delay.'' With no foundation whatsoever, the story then links me to this action by stating: ``The aftertaste of the Glosson struggle has remained bitter, especially for one of his ardent congressional supporters, Sen. Sam Nunn, D-Ga.'' That is absolutely inaccurate. In the first place, I strongly support the nomination of Lieutenant General Ryan for his fourth star and have not been involved in any hold. Lieutenant General Ryan was nominated on February 26, 1996 and favorably reported by the Committee on March 12, 1996. I am confident that he will be confirmed by the Senate and I urge the Senate to act immediately to confirm this fine officer. Second, when I was chairman of the Armed Services Committee in 1994, during Lieutenant General Ryan's previous nomination, I took the lead in ensuring that Lieutenant General Ryan was confirmed. That was at the same time we were considering the issues regarding Lieutenant General Glosson's retirement. Lieutenant General Ryan was nominated on July 12, 1994, approved by the Committee on July 27, 1994, and confirmed on August 25, 1994. Third, when our committee issued its report on the Glosson matter, I ensured that the following material was placed in the committee report, citing the special panel we had established: The Panel Report specifically states: ``We wish to be absolutely clear that in our view Generals Nowak, Ryan, and Myers were truthful in their testimony to the IG investigators and to us.'' The Panel notes that ``the reputation of these men for veracity and integrity is unimpeachable.'' The Panel Report also observes: ``Generals Nowak, Ryan, and Myers acted with the utmost integrity in reporting what they considered to be inappropriate attempts to influence a promotions board and in asking to be excused from service on that board. Their actions in this regard were proper and helped maintain the integrity of the Air Force promotions system.'' The committee concurs with these views. The committee notes that its favorable recommendation on the nomination of Lieutenant General Glosson is based upon his overall record of service and does not imply any reservation about the Panel's findings with respect to Lieutenant General Nowak, Lieutenant General Ryan, and Major General Myers. It is simply wrong to suggest ``the aftertaste of the Glosson struggle has remained bitter'' for me. On the contrary, I have worked hard to ensure that those, like Lieutenant General Ryan, who did their duty in the Glosson matter have not been adversely affected.

Mr. NUNN

Mr. NUNN. Mr. President, the National Defense Authorization Act for fiscal year 1996, which was signed into law by the President on February 10, 1996, contains a provision which mandates the discharge of every member of the Armed Forces who is HIV positive within 6 months. At the present time, the services have in place procedures for medically separating HIV-positive personnel who are physically disabled. Those who are not disabled are placed in a nondeployable status but continue to perform military duties. This is similar to the status of others whose medical condition--such as cancer, heart disease, asthma, and diabetes--restrict deployability but not the capability to provide valuable military service. The new procedure would require the Armed Forces to discharge, not later than August 31, 1996, those who are physically capable of performing their military duties and who are, today, providing valuable service to the Nation. The new mandatory discharge policy rejects the judgment of the Armed Forces that HIV-positive servicemembers should be treated no differently from others whose medical condition renders them nondeployable. That judgment was made by the Joint Chiefs of Staff during the Reagan administration, and was recently reemphasized by Secretary of Defense, Bill Perry, and JCS Chairman, Gen. John Shalikashvili. The new policy represents a sharp break with the traditional military practice of considering medical discharge on a case-by-case basis. In my judgment, the new policy is unnecessary, wasteful, unfair, and unwise. The new policy is unnecessary because HIV-positive personnel represent a tiny fraction of our Armed Forces. Out of the 1.4 million members of the Armed Forces on active duty, only 1,150 are HIV positive. That is less than one-tenth of 1 percent. Moreover, these HIV-positive servicemembers constitute only one-fifth percent of the 5,000 personnel in the military who are permanently non- deployable for medical reasons. If we can usefully accommodate some 4,000 individuals who are non- deployable for reasons other than HIV, there is no reason why we should discharge the small additional fraction who are HIV positive. The policy is wasteful because it will be throwing away the large investment the military has made in the training and experience of individuals who can still make a valuable contribution to the Armed Forces. Why throw away that investment at the peak of an individual's career? Not only will the new policy waste our recruitment and training dollars, it will throw away invaluable experience. Consider the case of the sergeant who has been married for 10 years, who has a child, and who is HIV positive. His service record is full of honors, including an award for automating a warehouse system that saved the Navy an estimated $2 million over a 2-year period. He has 12 years of service and has been HIV positive for 5 years. There is reasonable likelihood that he could serve for many more years, with the potential to develop systems that will save millions more for the Navy. This new policy will deprive him of his livelihood and deprive the taxpayers of the contributions that he can make to greater efficiency and savings. The new policy is unfair because it will leave many servicemembers without employment for themselves and health care for their families. There is a sergeant with 13 years of service who is married, with three children. He is HIV positive, as is his wife and two of the three children. Under the new policy, he is the only one of the family who will retain a right to DOD medical care. His family, including his HIV positive wife and two HIV positive children, will be excluded from any DOD health care. As a result of the bill, he will be discharged from service, lose his employment, loss his retirement potential, and lose his family's medical care. This is an individual who is perfectly capable of performing military duties, yet we are going to throw away our investment in him and place him in dire financial straits--even though those who are non-deployable for reasons other than HIV will remain in service. That is unfair. The new policy is unwise, because it could undermine the traditional doctrine of judicial deference to Congress in the realm of military personnel policy. In a 1994 essay in the Wake Forest Law Review, I examined the Supreme Court's precedents and concluded that the Court's jurisprudence reflected ``the highest degree of deference to the role of Congress and respect for the judgment of the Armed Forces in the delicate task of balancing the interests of national security and the rights of military personnel.'' I also noted, however, that the Supreme Court emphasized that Congress is not free to disregard the Constitution when it acts in the area of military affairs. Consequently, it is essential that Congress act with care when it establishes procedures that would impose conditions on military service that would be constitutionally impermissible in civilian life. In the case of the new HIV discharge policy, we have not acted with care. It is instructive to contrast the development of the new policy with the process followed in 1993 when the legislative and executive branch considered the policy on homosexuality in the Armed Forces. In February 1993, Congress rejected an amendment that would have imposed a policy without any hearings of deliberation. Instead, we provided for a 6 month detailed review within the executive branch and Congress. That period provided an opportunity for the Department of Defense and Congress to hold hearings, receive testimony from the members of the Armed Forces, legal and academic experts, and interested members of the public. The Senate Armed Services Committee alone complied a record of more than 1,000 pages in testimony. The hearing process and DOD reviews in 1993 were followed by the development of a proposed DOD policy and specific legislation, including detailed legislative findings. The findings focused on clear expert testimony on the impact on unit cohesion, morale, discipline, and military effectiveness. The civilian and military leadership of the Department of Defense supported the legislation; it was overwhelmingly approved after thorough debates in both the House and the Senate, was signed into law by the President, and has been defended by the Department of Justice in the face of several legal challenges. Although there may be disagreement on the merits of the 1993 policy, the process ensured careful and thorough review by the legislative and executive branches of the relevant policy and constitutional issues. The process was designed to provide for careful and thorough review. The contrast to the development of the new HIV policy could not be more striking. There has been no review within the executive branch. In fact, the military leadership views the policy as unnecessary and unfair. The House did not develop a detailed legislative record, and the provision was not even included in the Senate-passed bill. There is not a clearly articulated legislative basis for treating HIV-positive personnel in a manner that differs from the treatment of other nondeployables. In the absence of careful legislative consideration, it could be difficult for the new policy to survive a constitutional challenge-- particularly in terms of the weak arguments for the policy. Supporters of the provision have relied primarily on three reasons to justify the provision. First, they believe that the retention of HIV-positive personnel degrades unit readiness. There has been no showing, however, that the small fraction of nondeployable personnel who are HIV positive have a significantly greater impact in this regard than the large number of persons who are nondeployable for other reasons. The second reason given for the policy is to establish deployment equity on the grounds that if a person is nondeployable, other servicemembers stand a greater risk of deployment. That concern might be appropriate if the numbers were significantly greater and if the HIV positive personnel were the only nondeployables. For example, if the number of HIV positive personnel in the Marine Corps were to become a significant percentage, then the HIV policy would have to be reconsidered together with the policies that retain servicemembers who are medically nondeployable for reasons such as cancer, diabetes, asthma, and heart disease. This however, is not the case today. The numbers are tiny and the persons who are nondeployable for other reasons greatly outnumber those who are HIV positive. The third rationale offered by supporters of the policy is that discharge is warranted because, it is asserted, persons who are HIV positive likely contracted the infection through sexual misconduct or drug abuse. There are two problems with this argument. First, it ignores the well-established medical fact that HIV can and often is transmitted through actions that do not involve military misconduct, such as blood transfusions and heterosexual conduct. Second, there are ample administrative and judicial procedures in the Armed Forces to discipline those who engage in misconduct involving sex and drugs. The record does not establish a military need to discharge all who are HIV positive in order to maintain good order and discipline. The administration, believing the new provision to be unconstitutional, has determined that it will obey the law but not defend it in court. As a result, the judiciary will be thrust into the midst of a constitutional debate on a controversial military personnel matter with a sparse legislative record and a severe split between Congress and the President. It is an invitation to undermine the doctrine of deference, which has served so well and so long to ensure that the Armed Forces have the tools necessary to maintain good order and discipline without interference from the courts. For that reason alone, the provision should be repealed. This provision was not part of the Senate-passed authorization bill. I opposed this provision during the conference with the House of Representatives on the authorization bill and I spoke out against it on the floor of the Senate during debate on the conference report. Today, I support the amendment that would repeal this provision.

Mr. NUNN

Mr. NUNN. Mr. President, I would like to recognize the outstanding service of the crew of Special Air Mission 3311, which transported former President Jimmy Carter, retired U.S. Army Gen. Colin Powell, and myself to and from Haiti in September 1994. This mission was a last chance attempt to achieve a peaceful return to power of Haiti's democratically elected government. Although the successful outcome of the United States negotiating effort is well known, I want to reflect for a moment on the bravery and high level of professionalism exhibited by the air crew that gave our mission of peace the opportunity it needed to succeed. Recently, I had the opportunity to speak with one of the members of this aircrew and I recalled the extraordinarily difficult conditions under which the aircrew members were forced to operate. On the evening of September 16, 1994, this aircrew was given less than 8 hours to prepare for a 6 a.m. departure for the following day in which neither the destination, nor the passengers of the flight, were known. Only 3 hours before the flight's scheduled departure did the aircrew learn of its orders to transport General Powell from Andrews Air Force Base to Robins Air Force Base in Georgia, where they would pick up former President Carter and myself, and continue its flight to Port-au-Prince, Haiti. Intelligence sources at that time indicated that the runway at the Port-au-Prince airport was unusable. There were large amounts of debris littering the runway, including nails and 8-foot-high metal containers. Only minutes prior to the landing, as much debris as possible was moved to the sides of the runway. Miraculously, and with no margin for error, the crew was able to land the aircraft with only 20 feet of wing-tip clearance. However, the crew's ordeal did not end at that point in the mission. On September 18, the aircraft returned for our mission's departure from Haiti. Delays in our negotiations resulted in the crew having to wait for more than ten hours in the plane for the return of our delegation. The crew members endured heat in excess of 120 degrees while maintaining the aircraft's readiness for an instant departure with minimal support facilities. The crew had to function under the additional stress of knowing that the negotiations were not proceeding very well. When our negotiating team arrived at the aircraft for departure, the crew had no knowledge concerning the final outcome of our discussions or the current status of a United States invasion force that was enroute from Pope Air Force Base to Haiti. Only after a successful takeoff under these tense conditions did the crew learn that the negotiations had concluded successfully. Mr. President, the courage, dedication, and professionalism of the aircrew of Special Air Mission 3311 to Haiti represent the finest qualities of the men and women serving in our Nation's Armed Forces. For their dedication, each member of the aircrew was awarded the Air Medal. In addition, this extraordinary unit received the 21st Air Force Aircrew Excellence Award for the third quarter 1994 and was nominated for the Lt. Gen. William H. Tunner Award for Outstanding Air Mobility Command Aircrew. They made a major contribution to our mission to Haiti. Today, I want to pay tribute to the excellent job that they performed and I ask that a list of the names of those outstanding individuals who served in Special Air Mission 3311 be printed in the Record. The list follows: The Crew of Special Air Mission 3311 Major Loail M. Sims, Jr. Lieutenant Colonel William F. Dea Captain Peter M. Lenio Major David B. Ingersoil Captain Steven A. Burgess Master Sergeant Mark L. Buchner Staff Sergeant Kenneth K. McNamara Master Sergeant David A. Nelson Staff Sergeant Kimberly M. Herd Master Sergeant Brian D. Smith Master Sergeant Karen G. Kron Staff Sergeant Sheila L. Bradley Staff Sergeant Darryl O. Walizer Staff Sergeant Lennard C. Edwards Master Sergeant John M. Piva Staff Sergeant John C. Bergquist Staff Sergeant John Bresnahan Technical Sergeant Victor N. Gobe'r Technical Sergeant Roy L. Tatum.

Mr. NUNN

Mr. NUNN. Is the Senator saying if we are going to consider a resolution on this sensitive subject that we ought to hear every word of exactly what we are doing, not do it at this hour of the night when people are not paying attention and understand what we say on the floor of the Senate? Sometimes we do not take it seriously but other countries do. I have reservations about the way this resolution is worded. It is not what is in it. It is what is not in it. There is not much I disagree with, but it leaves out the whole history of the United States relationship with China, how it evolved under President Nixon, what happened when we normalized, the Reagan communique in 1982. All of that is left out of it. We are all concerned about what is going on in China, but we do not further the cause of stability and peace in that area of the world by ignoring what we have agreed to, by ignoring the history of President Nixon's visit, by ignoring the one-China policy which was adhered to not only by the United States when we said that we would respect China's view that that was their policy but also by the people on Taiwan. For years that is what has brought stability and prosperity to that part of the world. If they are going to change that policy politically by Taiwan or certainly by military force by China, then we ought to oppose both. We ought to oppose it vigorously because that is going to cause turmoil in that part of the world for a long time to come. So if the Senator from Louisiana is saying let us go slow, let us do not pass this tonight, I am with him. I think he is absolutely right. We are not going to solve anything. This is more heat than it is light. And we need to be very careful. I would be glad to work with Senators on that side of the aisle in carefully wording and making sure we reflect the history, making sure we have an overall perspective, making sure we understand the U.S. agreements, what we have agreed to. We have not always lived up to what we said we were going to do either. I think we all have deep concern about the dangerous situation developing there. We have deep friendship for the people on Taiwan and deep admiration. So I would just ask the Senator, have I captured the essence of the point he is making here?