Arlen Specter

Mr. SPECTER

Mr. SPECTER. Madam President, we face a very difficult situation on homeland security in a number of respects. I spoke last week about my concern that there was not sufficient authority in the Secretary to direct the intelligence agencies and my concern about the labor- management provisions. I did not offer amendments because when the House of Representatives has, in effect, gone home, if we pass amendments, there will have to be a conference and the bill will be brought down. I believe it is vitally important that homeland security be passed, that we move ahead to put all the so-called dots on the screen, as I spoke at length on last week. Had all the dots been on the screen, I think 9/11 might well have been prevented. I do not accept the assertion of CIA Director George Tenet that another 9/11 is inevitable. The House-passed bill from last Wednesday, which has come over, is a voluminous bill, hundreds of pages long. As we start to consider it, there are seven provisions now which Senator Lieberman has sought to strike: Provisions on childhood vaccines; protections for qualified antiterrorism technologies; the university of homeland security advancement, which seems to pinpoint Texas A&M; the extended duration of the advisory committee; the exemption for FACA; the airport security liability protections; the provision on contracting with offshore entities, which Senator Wellstone had added, to prohibit the Secretary from contracting with inverted domestic corporations. All of these provisions, I think, require very extensive consideration and analysis. I am very distressed to see them added on the bill, with no hearings and no chance for consideration. Now we are faced with a homeland security bill which is very heavily weighted with provisions which are undesirable. It makes it difficult. Candidly, I am not sure how I would vote on all of these provisions if they were presented individually. I do think that on a matter of this importance, it would have been orderly procedure to have these provisions submitted for hearings and consideration. It may well be that by the time we add up all of the provisions, the disadvantages may well outweigh the advantages of this bill on homeland security. Ultimately, the need to have homeland security, to have a Secretary who will be able to put all of the investigative agencies under one umbrella, is so important that we will have to swallow hard. This is really a case where it is a matter of take it or leave it on a bill which is undesirable in many aspects, but the importance of protecting America from terrorist attacks outweighs so many of these provisions which are highly undesirable. There is an old expression about not wanting to see either legislation or sausage made. This homeland security bill is problemsome in so many respects that it is giving sausage a bad name. It goes very far. However, it is so important to have a Secretary with authority on homeland security to act to protect against terrorism. This bill is very weighty and has undesirable aspects, and there are amendments which would have improved the bill tremendously. I lodge these objections that the procedural posture really of legislative blackmail, with the House having gone home, a take-it-or- leave-it proposition, puts this Senator in a very difficult position. Ultimately, I think the necessity for homeland security outweighs these disadvantages, but barely. I again thank my colleague from West Virginia for arranging this sequence, and I yield the floor.

Mr. SPECTER. How much time remains, Madam President, of the 10 minutes?

Mr. SPECTER. In those written comments he pointed out that in civil demonstration cases he has been fair and equitable: One bench trial verdict of over $2 million and another over $1 million; he has employed both female and African-American law clerks; and, in general, set forth the specifics to show that he has not been discriminatory in his judicial practices. These comments have been checked out by staff and found to be accurate. Judge Shedd has been criticized for circumventing the authority of Congress under the commerce clause in a very celebrated case, United States v. Brown, involving the Gun-free School Zones Act. Judge Shedd found that it was constitutional and was later reversed by the Supreme Court of the United States under United States v. Lopez. In brief, it is a complicated subject, but Lopez, the Supreme Court decision of 1995, curtailed the authority of Congress under the commerce clause. Judge Shedd has been said to have limited what Congress can do on States' rights. Here is a case where he found congressional authority. It was a close case. He was reversed--or later the Supreme Court decided he was in error. But I think it illustrates the point that Judge Shedd did give latitude for congressional enactments. It is my hope that Judge Shedd will not be part of the so-called payback theory. I did not like what happened to President Clinton's nominations when Republicans controlled the Senate. As the Record will show, I supported Judge Roger Gregory for the Fourth Circuit. We have had some of the payback consideration on the Fifth Circuit I think fairly stated with Judge Pickering, and I hope that will not occur with Judge Shedd. It is my hope we will soon have a protocol which will take politicization out of judicial selections when there is a Democratic President, such as President Clinton, with a Republican Senate. Now the shoe is on the other foot, and we have a Republican President, President Bush, and a Senate controlled by the Democrats. We ought to move away from that. As the Record will show, I have supported qualified nominees submitted by President Clinton and was pleased to note that there was reciprocity. All 11 of Pennsylvania's district court judges have been confirmed, as has Judge Brooks Smith, the one contested circuit judge. Exhibit 1 Response of Judge Dennis Shedd to Senator Specter's Question During my June 27, 2002, hearing before the Senate Judiciary Committee, Senator Specter asked me if I believed that the NAACP's opposition to my nomination was fair. I responded that I do not think it is fair. Senator Specter then asked me to provide a written answer explaining my position. I trust that this will be responsive to the Senator's request. In lodging its opposition to me, as I understand it, the NAACP has focused on a relatively small number of cases-- primarily employment discrimination cases--in which the plaintiffs did not prevail. Relying on these cases, and ignoring my complete record, the NAACP has attempted to create the impression that I do not treat civil rights plaintiffs fairly. However, this is a complete mischaracterization of my record as a district judge, and it is based on a very limited--and misleadingly selective-- sampling of my casework. My complete record as a district judge demonstrates that the charge is not accurate. I do not wish to belabor this response with a case-buy-case rebuttal of the employment cases for which, to my knowledge, I have been criticized. Of course, people are entitled to disagree bout the outcome of a particular case depending on their viewpoint. However, as an initial matter, I would note that I have not been made aware of any criticism which suggests that my decisions in these cases are legally incorrect or improper. I do not claim to have been correct on every issue that has come before me, but I can tell you that I have conscientiously endeavored to be correct. Moreover, contrary to the misimpression that the NAACP has attempted to create, I have on many occasions denied defendants' motions for summary judgment (or to dismiss) in employment cases. I have done so when a magistrate judge has recommended that I grant the motion, and I have done so over the defendant's vigorous objection. Typically, once a plaintiff defeats a summary judgment motion in this type of case, the case settles, and that has happened often in my cases. However, I have also had employment cases, in which I denied the defendant's motion, thereafter process to verdict. Further, sitting by designation with the Fourth Circuit, I joined with Judge Sam Ervin in reversing a summary judgment and remanding a case in order to allow the employment discrimination plaintiffs to proceed to trial. I believe these examples alone refute the NAACP's criticism of me. As I am sure you are aware, an individual's civil rights may be implicated in federal litigation in many contexts outside the realm of employment discrimination. I have been presented with countless cases of various types in which an individual's civil rights were implicated, including (but not limited to) criminal cases, voting rights cases, habeas corpus cases, and cases involving allegations of governmental misconduct of some type. My complete record in these types of cases further reflects the fact that I do not have any type of anti-civil rights bias. For example, I have presided over trials in which civil rights plaintiffs have won jury verdicts or gained a settlement at trial. I have granted relief in at least five habeas corpus cases. I ruled in favor of the plaintiff and upheld the one-person/one-vote principle in a case in which the plaintiff challenged the method of electing members to a local school board, and I have handled a number of Voting Rights Act cases in which (to my recollection) the plaintiffs in each case succeeded on their claim of a violation. I have always endeavored to be vigilant in ensuring the protection of civil rights in criminal cases as well. I have, for example, granted judgment of acquittal on numerous occasions to defendants where I believed, as a matter of law, that the government failed to meet its burden of proof. I have also disallowed the government from using evidence at trial when I thought that its use would improperly disadvantage the defendant. It is also my practice during trial to ensure very specifically that defendants are aware of their constitutional right to testify or not to testify. Similarly, it is my practice to ensure that witnesses who I believe may incriminate themselves by their testimony are aware of their rights, and I have appointed counsel in some instances to advise these witnesses before they testify. I would also note that my overall record in civil cases demonstrates that I do not have any bias against plaintiffs. I have, for example, awarded a bench trial verdict of over $2,000,000 in one case, and over $1,000,000 in another case. In addition, I have presided over jury trials which led to substantial verdicts in a plaintiff's favor, and I have on at least one occasion directed a verdict of liability in a plaintiff's favor. I have also raised, sua sponte, the propriety of the removal of cases from state court, thereby setting in motion the procedure by which the plaintiffs could return to their chosen forum (i.e., state court). I have also assisted parties in civil cases in reaching a settlement, and often this has occurred where it appeared as though the plaintiff would otherwise gain no recovery. Apart from my case record, I believe that my commitment to ensuring fairness for all persons is exhibited by my conduct in other matters. For example, I have employed female and African-American law clerks. I have also actively recruited and support minority and female candidates for magistrate judgeships. Now in my twelfth year on the district court. I have handled thousands of civil and criminal cases in which I have issued countless rulings, all of which are public record. During this time, my concerted effort has been to ensure that all litigants are treated fairly according to the law. I do not approach any case, or any litigant, with any type of bias, and I do not decide issues before me on anything other than the pertinent law. I am gratified that I have earned a reputation among lawyers in this district (as reported in the Almanac of the Federal Judiciary) for being fair and impartial. I believe my impartiality is reflected by the low number of cases in which I have been reversed, as one could reasonably expect that any type of bias on the part of a district judge would manifest itself over time in appellate response to judge's work. I would like to point out an incident that occurred earlier this year, as I believe it is akin to the current accusations against me. On May 3, an article appeared in the Washington Post stating, in essence, that I was insensitive to disabled persons because I would not allow a blind woman to be present in the courtroom during a trial over which I presided. That article was printed without anyone from the newspaper contacting me to verify the allegation, which I readily could have refuted. However, after the article ran, I was able to obtain a transcript of the trail in question, and it very clearly confirmed what I already knew; I had made special efforts to accommodate the woman in question, and I only ordered her to leave the courtroom (as I was required to do by the Federal Rules of Evidence) after the parties identified her as a potential witness and requested that all trial witnesses be sequestered. In other words, the woman was required to leave the courtroom because she was a potential witness, not because she was blind. Fortunately, when the actual facts came to light, the newspaper ran another story setting the record straight. I mention this story not as a complaint, but as an example of how a perfectly legitimate set of facts can easily be misused to portray a false impression. I believer that this has occurred in this instance, and I am very appreciative to the Committee for providing me the opportunity to set the record straight about my judicial career. In closing, I would add a personal comment. In my life, I have seen first hand the unfair and unequal treatment of disadvantaged people in society. That is one reason I have always cared so deeply for doing my best to treat all people fairly and with respect. Those who know me would emphatically agree that I have an abiding concern for fairness. I believe my record as a judge underscores my dedication to his principle and I will continue to show fairness and respect to all in my judicial actions, as well as in my public and private life.

Mr. SPECTER. I thank the Chair. Nomination of Dennis Shedd Madam President, I will briefly comment on two matters: First on the confirmation of Judge Shedd, and second on the pending Lieberman amendment to the homeland security bill. I support confirmation of Judge Shedd for a number of reasons. First, he has been found well qualified by the American Bar Association, the highest rating which can be given. I knew Judge Shedd when he served as chief counsel, chief of staff, to the Judiciary Committee from 1981, when I came to the Senate and started to serve on the Judiciary Committee, until 1988. I believe he is a fair, equitable, and competent jurist. I know Judge Shedd's record on the U.S. district court where he has served since 1991. I asked Judge Shedd some questions, and he responded in some detail. I ask unanimous consent that Judge Shedd's written response be included at the conclusion of my comments.

Mr. SPECTER. How much time remains of the 25 minutes identified by the Senator from West Virginia?

Mr. SPECTER. I thank our distinguished President pro tempore for accommodating our schedules.

Mr. SPECTER. I would like 10 minutes.

Mr. SPECTER

Mr. SPECTER. Madam President, I have sought recognition to comment on the bill generally, and to discuss three amendments which I have filed. I believe it is vitally important that the Senate conclude action on homeland security at the earliest possible date. And I believe, regrettably, but importantly, that we should accept the bill which was passed by the House of Representatives because if we do not, we will not have a bill this year. The House has passed a homeland security bill and has given notice that it intends to depart. This has left the Senate with the choice of take it or leave it. I believe that the national interest and the public welfare requires that we take it, even though I believe we would have a much better bill if it were to be amended in certain respects. I have filed three amendments which I think would vastly improve the House bill. If these amendments are offered and accepted, then there will have to be a conference. The prospects for having a conference, with the House of Representatives having departed, is remote, and the likelihood of passing this bill this year would be virtually nonexistent. It is with reluctance that I say these amendments will not be offered, but these are amendments which I intend to pursue next year. In coming to this conclusion not to offer these amendments, I have done so at the request of President Bush who is very anxious that this legislation be enacted and sent to his desk so that the country may proceed to reorganize the Government to provide for homeland security. Earlier today, I talked to President Bush, I talked to Vice President Cheney, and I talked to Governor Ridge about these three amendments. The President urged me not to offer these amendments so that this legislation could be passed. The President stated that he would be willing to sit down and discuss the concerns I have and the amendments I have proposed, with a view to possible action on them next year. He is obviously not committing to accept these amendments until he has had a chance to review them, but did say there would be full review by the President. The President said that. And the Vice President also said he would review the matters. I talked at length to Governor Ridge, to whom I have talked on many occasions. These are amendments which I have had an opportunity to discuss with the President in the past, in meetings in the White House. As soon as the homeland security bill was introduced, he brought in a number of Members who were interested. I have had a chance to discuss the amendments with him at several leadership meetings, and when he traveled to Pennsylvania recently to campaign, I had a chance to discuss the matter with him. One of the amendments I have filed, denominated amendment No. 4920, provides that the Secretary of Homeland Defense, subject to the disapproval of the President, would have the authority to direct the agencies to provide intelligence information, analysis of intelligence information, and such other intelligence-related information as the Assistant Secretary for Information Analysis determines necessary. This language is important because it would empower the Secretary of Homeland Defense to ``direct.'' That is very different from asking. My experience as chairman of the Intelligence Committee in the 104th Congress convinced me about the turf battles which go on among the various intelligence agencies. Those turf battles are endemic and epidemic. In chairing the Judiciary Committee Subcommittee on Department of Justice Oversight, I have seen the same turf battles going on in the FBI and know of the turf battles which have gone on in other intelligence agencies. I believe that had all of the dots been put on a big screen prior to September 11 of 2001, 9/11 could have been prevented. We knew the FBI had an extensive report coming out of Phoenix about a suspicious individual taking flight training. The man had a big picture of Osama bin Laden in his apartment. That FBI memorandum was buried, and never reached appropriate personnel at headquarters. We know the Central Intelligence Agency had information on two al- Qaida men in Kuala Lumpur. That information was not transmitted to the FBI or the Immigration and Naturalization Service. Those al-Qaida terrorists got into the United States and piloted one of the suicide bombers on 9/11. We know the computer of Zacharias Moussaoui had a tremendous amount of useful information in his possession which was not obtained because the FBI did not use the proper standard applying for a search warrant under the Foreign Intelligence Surveillance Act. We know that a Pakistani al-Qaida member by the name of Murad had stated in 1995 that al-Qaida planned to have airplanes loaded with explosives fly into the CIA. We know the National Security Agency had a warning on September 10, 2001, about something to happen the next day, and it was not translated until September 12. I believe there was a veritable blueprint, had all of these dots been on the same screen and put together. When FBI Director Mueller came to testify before the Judiciary Committee in early June of this year and was questioned about the Foreign Intelligence Surveillance Act and I saw the entire picture, I stated at that hearing that I thought there was a veritable blueprint. I do not agree with CIA Director George Tenet that another 9/11 is imminent. The CIA Director testified to that at a public hearing before the Intelligence Committee a few weeks ago. Perhaps it is an effort to inoculate the CIA so that if there is an attack, somebody can say: Well, after all, we are not surprised. But I do not believe in the defeatist attitude that we have to sustain another attack. I believe our intelligence services are capable, if they are under one unified direction and they have one screen and put all of the dots on one board, that we have an excellent chance of preventing another September 11. While it is important to have antidotes for anthrax and to deal with smallpox and to deal with the problems of bacteriological warfare or chemical warfare, that if we are attacked, most of the damage will already have occurred. So a very sharp focus of our attention should be to prevent another 9/11. To accomplish that, I believe the current bill is not the best of the bills. It does bring all of the analysis agencies under one umbrella, but it does not give the Secretary of Homeland Defense the authority to direct them. If the Secretary of Homeland Defense does not have the authority to direct the head of the CIA or to direct the head of the FBI or to direct the head of the Defense Intelligence Agency or to direct the head of the National Security Agency or the other intelligence agencies, then we are likely to have the same old turf battles which we have had up until now. That is why I believe this amendment, which I had wanted to offer and have discussed on this floor on many occasions, would vastly improve this bill. But we all know that the better is often the enemy of the good. I believe it is of sufficient importance to move this bill ahead now that I am prepared to wait until next year and to accept the offer the President has made--and the Vice President and Governor Ridge--to sit down and go over the concerns I have expressed and these amendments, if we can get administration support on these amendments. There has been enormous controversy on the issue of labor-management relations. This was the subject of extensive debate when this bill was on the floor from September 3 until October 4. This Senator engaged in extensive discussions with Senator Lieberman, the manager of the bill for the Democrats, and Senator Thompson, the manager of the bill for the Republicans, as to what the Nelson-Chafee-Breaux amendment meant. That amendment had incorporated the essence of what Representative Connie Morella had put in with two paragraphs, and the issue was whether or not those two paragraphs were in place of, or in addition to, the paragraphs of existing law. The paragraphs of existing law, under section 7103 of title 5, provide that there can be a national security waiver of collective bargaining, that the President can make a determination to deny collective bargaining coverage for national security reasons. When the colloquy was entered into with the Senator from Connecticut, Mr. Lieberman, he agreed that the two paragraphs of the Nelson amendment were in addition to and not in place of existing law, and these two additional paragraphs made it a little more difficult for the President to exercise the national security waiver; but still the national security waiver could have been exercised and there could have been harmony with the employees had that change been made. Then, with respect to the provisions for personnel flexibility, the amendment I have submitted as No. 4921 would have taken the format for denying collective bargaining coverage with the national security determination and added the additional two paragraphs which, again, would have provided for harmony, meeting the concerns that had been expressed by governmental employees. It is my hope that we will yet have an opportunity next year, in consultation with the President, the Vice President, and Governor Ridge, to have consideration of this amendment and have the law changed next year. In addition, I have filed amendment No. 4936, which contains provisions for a Presidential override but has, as a compensating factor, provisions for the utilization of the Federal Services Impasse Panel, and that again would bring harmony with the concerns and objections that have been raised by Federal employees. So, in essence, what I am proposing to do is not to offer these amendments, Nos. 4920, 4921, and 4936; but I do believe they are important amendments, and I intend to press them in the 108th Congress. To repeat, I have discussed these issues directly with the President, who asked that I not put these amendments forward in the interest of expediting passage of this bill and avoiding a possibility of having a Senate bill different from the House bill, which would then require a conference and, most probably, preclude the enactment of legislation on homeland security this year. There will be a number of amendments offered. There are already amendments that are pending, and some of them, frankly, I agree with. But I believe that the better is the enemy of the good here, and it is very much in the national interest for national security that this Senate move ahead and pass a bill. I do not like the fact that the House enacts passage of a bill, sends it here, and then leaves town, which is just an example of legislative blackmail. But that is where we are. It is not an unusual occurrence. Although we had a full month to debate these issues and to vote on them, that never occurred, notwithstanding the fact that this Senator and others were on the floor. And I made these arguments about the necessity for a Secretary of Homeland Defense to have the authority to direct, and I made the arguments that when you added the two paragraphs of the so-called Morella amendment to the existing language, the President's national security waiver remained intact. At this point, that is all history. Now we are faced with the alternatives of either accepting the House bill and moving on and getting this Department established, so that we can make our maximum effort to protect the American people, or to offer amendments and try to get them passed and improve the bill, which will lead to the conclusion of no legislation this year. So, with great reluctance, I have acceded to the requests of the administration. I will not offer these amendments. I exhort and urge my colleagues not to change the bill, no matter how good their amendments may be, but to take this bill; and if there are matters that ought to be changed, let's work on them next year. Before we leave town--hopefully this week, but in any event not later than next week--let's put the legislation in a posture where it can be sent to the President, be signed and become law, to do our utmost to protect the American people and to secure our homeland from another terrorist attack. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Madam President, I have sought recognition today to honor the forty U.S. soldiers who tragically perished in Bakers Creek, Queensland, Australia on June 14, 1943. Their deaths came as a result of the crash of a B-17C Flying Fortress, which proved to be the worst aviation disaster of the Southwest Pacific theater during World War II. More soldiers died on that plane from my home State of Pennsylvania-- six--than from any other State. These six were as follows: Pvt. James E. Finney; T/Sgt. Alfred H. Frezza; Sgt. Donald B. Kyper; Pfc. Frank S. Penksa; Sgt. Anthony Rudnick; and Cpl. Raymond H. Smith. I understand that members of the Bakers Creek Memorial Association, USA, based in Orrtanna, PA, have located the families of Pvt. Finney, T/Sgt. Frezza, and Sgt. Kyper. However, the Association continues to search for the relatives of Pfc. Penska, Sgt. Rudnick, and Cpl. Smith to notify them of the specifics surrounding their loved ones' deaths. Only recently has the Air Force officially recognized this tragedy. The aircraft that crashed had been operated by the United States Army Air Force 46th Transport Carrier Squadron, 317th Troop Carrier Group, 5th Air Force Division. The plane was one of the many B-17 bomber aircraft that had been removed from combat status and converted into transport aircraft. Shortly after takeoff from the Mackay airport in Bakers Creek, the B-17 lost altitude, fell to the earth in a slow and steady bank, and crashed in a ball of flames. The forty lost onboard included six crew members and thirty-five soldiers returning to their posts after being on leave in Australia. Next June will mark the 60th anniversary of the Bakers Creek crash. I understand that Major General, Retired, Robert H. Appleby, former Commander of the Pennsylvania Army National Guard, plans to lead a contingent of victims' families to Australia in observance of the anniversary. I applaud the members of the Bakers Creek Memorial Association, USA, including General Appleby and Mr. Robert S. Cutler, for undertaking this and other initiatives which keep the memory of the fallen heroes of Bakers Creek alive and well.

Mr. SPECTER

Mr. SPECTER. The issue of homeland security, I believe, is one of great urgency. I believe that September 11, 2001, could have been prevented had we had all of the so-called dots on the board about warnings which had been received. I do not agree with CIA Director George Tenet that another September 11 is imminent. CIA Director Tenet made that statement about a month ago. We had a lot of warning signals about 9/11. There was an FBI report in July of 2001 about a suspicious man taking flight training in Phoenix, that he had a big picture of Osama bin Laden in his apartment, which never got to headquarters. That warning was mired in FBI bureaucracy. There was information that two al-Qaida members from Kuala Lumpur were planning to come to the United States; that it was known to the CIA but never told to the FBI or the INS, the Immigration and Naturalization Service. They came in unimpeded and were two of the pilots on the suicide missions on September 11. Then there was the effort by the Minneapolis office of the FBI to secure a warrant under the Foreign Intelligence Surveillance Act for Zacarias Moussaoui which had the wrong standard. Had the FBI gotten into Moussaoui's computer, there was a treasure trove of information about potential attack. Then there was the warning to the National Security Agency on September 10 about something to happen the next day. It was not translated until September 12, but it was too late. Then an al-Qaida man named Murak confessed in 1996 of plans by al-Qaida to fly a plane loaded with explosives into the CIA headquarters. We already had the attack on the Trade Center in 1993. Osama bin Laden was under indictment for killing Americans in Mogadishu in 1993, and under indictment for the Embassy bombings in Africa in 1998. Osama bin Laden was on record as declaring a worldwide jihad against the United States. We had a lot of warnings, and had all of those dots been put on the board, I think there was a veritable blueprint and I said as much when FBI Director Mueller came to testify before the Judiciary Committee last June. We had the homeland security bill on the floor for a full month. We started debating it on September 3. We did not finish until October 1, and it was never ever passed. When President Bush came to Pennsylvania back in late October, I urged the President to call a special session of Congress to pass homeland security. It seems to me that is our job. The President is emphatic that the first thing he does every day is to review the intelligence briefings. There is grave concern that there could be another attack. I am glad that the President is insistent that Congress pass homeland security before we go out of this lame duck session. While it is important to pass homeland security, it is important that it be enacted with the appropriate provisions. One provision that I have discussed at some length is to have the Secretary be able to direct the intelligence agencies which will all be under one umbrella. The idea to have the intelligence agencies under one umbrella, I think, has been generally agreed upon. This is not a new idea; it has been proposed for a long time. I was chairman of the Senate Intelligence Committee in 1995 and 1996. I saw the turf wars between the CIA and the FBI, the NSA and Defense Intelligence, et cetera. Legislation was introduced by this Senator to bring everything under one umbrella of the Central Intelligence Agency, and that legislation has languished. Mine was not the only idea; it has been proposed by others over the years. The turf battles have precluded it. Now, with an Office of Homeland Security, we have a chance to get it under one umbrella. It is vital the Secretary be able to direct these analytical departments to work together. Otherwise, the turf battles will go on. I am not saying the CIA Director should lose control over his agents around the world or the FBI Director should lose control over FBI agents in the United States or abroad, or any other Department should lose control over their agents. But when you pull the analysis and bring all the analysts under one umbrella, there is the point that there has to be direction so all the dots are placed on one screen. The language is very simple. It is: On behalf of the Secretary, subject to disapproval by the President, to direct the agencies described under subsection (f)(2) to provide intelligence information, analysis of intelligence information, and such other intelligence- regulated information, as the Assistant Secretary for Information Analysis determines necessary. That is the operative language. The other parts of the bill contain an enumeration of all of the agencies which will be under one umbrella for analysis. There has been considerable argument and disagreement over labor- management provisions. This has been discussed at some length by this Senator and others in colloquies. Part of the controversy arose because of initial confusion as to whether the two paragraphs added by the amendment by Senator Nelson of Nebraska--that is the other Senator Nelson, Mr. President; may the Record show that Senator Bill Nelson is presiding at the moment--whether they were in addition to or in place of. And if they were in place of, that would have eliminated the President's national security waiver which is indispensable and should not be eliminated. In colloquy with Senator Lieberman, it was agreed to that these provisions would be in addition to. So that asked that collective bargaining in current law would stand, which provides in subsection A: (A) the agency or subdivision has a primary function intelligence, counterintelligence, investigative or national security work, and (B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations. Then the Nelson amendment would have added the language: (1) the mission and responsibilities of the agency or subdivision materially change; and (2) a majority of such employees within such agency or subdivision have--as their primary duty--intelligence, counterintelligence, or investigative work directly related to terrorism investigation. I believe that language would be satisfactory to all parties. Then with respect to the flexibility which the President has sought as to the other five chapters, that format would be followed so that, in essence, where we have intelligence, counterintelligence, or investigative work, there would be the flexibility for a national security waiver as determined by the President. Now I have just come from a meeting with Republican leadership with the President, and there has been work over the past weekend on this issue. As yet, we do not know precisely what provisions have been agreed to. It is my hope that the language which I had suggested in September and which has been before all of the Senators who were working on the final analysis, plus this language, will be incorporated in the final bill. I will be in touch with the officials in the administration yet this afternoon to try to see to it that these provisions which are agreeable to all sides--both labor and management, to solve the labor-management controversy--can be made part of the bill, and that the language which would give the Secretary the authority to direct the analysis sections will also be included in the bill. I ask unanimous consent that the text of the language giving the Secretary of Homeland Defense authority to direct the analytical agencies be printed in the Record at the conclusion of my remarks along with the language both as to collective bargaining and the flexibility in the other five divisions of labor-management.

Mr. SPECTER

Mr. SPECTER. I suggest the absence of a quorum.

Mr. SPECTER. Mr. President, the Senate is greatly diminished with the passing of Senator Paul Wellstone. As we see the bouquet of flowers on his desk, we can see Paul in action, speaking out, speaking up indefatigable on the issues of concern to him. He undertook a very difficult campaign back in 1990 against the odds, against a popular incumbent Senator. He was able to mobilize students, activists, people who believed in what he believed in because he was always a man with a cause. All the time he had a point. He did not mind being a dissenter. People who may be listening to this session of the Senate do not know, but there is a little card at the desk on each side, Republicans and Democrats. When the Senators come in and vote, there is a check. It is not easy, when, say, there are 50 members of the party and 49 checks are on one side, to vote against the 49, to have your name stand out in marked contrast as a dissenter, but Paul Wellstone did not mind that a bit. I believe in the history of our country the dissenters are vitally important, sometimes more important than the majority. Oliver Wendell Holmes, a Supreme Court Justice, was a prime example. He did not mind speaking out in dissent. And then he got another Supreme Court Justice, Louis Brandeis, to join him. So then instead of 1 to 8, it was 2 to 7. The brainpower of the 2 was characteristically better than the 7. For that matter, the brainpower of that one, Justice Oliver Wendell Holmes, was greater than the 8 of many occasions. Plessy v. Ferguson was a decision establishing the principle of separate but equal, having segregation in America, in a decision shortly before the turn of the 20th century, I believe in 1896. John Marshall Harlan was the one dissenter. That dissent became a clarion call for Brown v. Board of Education. Similarly, I think the dissents that Senator Wellstone registered have the potential to become a majority point of view. It was said earlier today, and I think with real meaning, that the legislation to establish parity for mental illness with physical illness would be an appropriate tribute for Senator Paul Wellstone. That legislation came within a hair's breadth of being passed in the spring of 2001 on an appropriations bill. Technically, we are not supposed to legislate on an appropriations bill, but that rule is honored and then breached very often, maybe not more often than it is observed but it is breached very frequently. We had passed it through the Labor, Health, Human Services and Education Subcommittee which I had chaired. It was a health bill. Senator Domenici was the principal champion on the Republican side, and Senator Wellstone was the principal champion on the Democratic side. I was long a cosponsor of the matter. In chairing the conference, we pushed very hard. It came within one vote on the House side--we had the Senate--of getting that legislation passed. It ought to be passed as a tribute to Senator Wellstone. It also ought to be passed for the benefit of the people who suffer from mental illness, which is every bit as debilitating as a physical illness. On October 25, I was campaigning, as I think most people were. I had just come from a political rally in Reading, PA, where Vice President Cheney had spoken for Congressman Gekas who was running in a hotly contested election against Congressman Tim Holden, two incumbents pitted against one another. I turned on the radio at about 1:30 eastern time and was shocked to hear the news that Senator Wellstone's plane had gone down. It brought memories of the plane that went down on April 3, 1991, with Senator John Heinz, a vibrant, young Senator who had great potential, as did Senator Paul Wellstone. Flying small planes is an occupational hazard and everybody in this Chamber, all 100 of us, as well as the 435 Members in the other Chamber, and many other legislators and governmental officials, climb into small airplanes every other day. We all hold our breath as to whether we will be successful on the flight. Regrettably, we fly in bad weather, which sometimes we should not do but there is always a big crowd waiting and always some reason to finish. It was a great tragedy. Paul's wife Sheila was with him in the plane. One seldom saw Paul in the Halls of Congress without Sheila. She was not on the floor of the Senate, but she was with him constantly, holding hands, a very devoted couple. Their daughter Marcia was with them, also devoted in the campaign, a brilliant young woman at the age of 33. Senator Wellstone will be sorely missed in the Senate. There are many Paul Wellstone stories. I will mention one. I was managing the appropriations bill for Labor, Health, Human Services and Education. Senator Wellstone was in the Chamber bright and early. We started at 9:30. He had an amendment. Sometimes it is hard to get amendments up onto the floor. His amendment provided that no Member of Congress should have a health insurance policy at Government expense that was superior to what every other American had available to him or her. When that amendment was brought up, it was through the distinguished senior Senator from Minnesota, who was smiling broadly. It was a very extraordinary amendment to make. It is pretty hard to make an amendment like that stick because it would have made President Clinton's national health insurance policy look entrepreneurial to the nth degree. It did not pass, even though the Democrats controlled the House and the Senate. Senator Mitchell, the majority leader in 1993, was a major proponent of health care, but the Clinton plan with its bureaucracy went down to defeat. To have a requirement that no Member of Congress could have a health plan that was superior in any way to what the Government provided for every citizen was really an extraordinary idea, to characterize it very mildly. I did not have to debate Senator Wellstone for very long before there was an avalanche of Senators who came to the Chamber. He really struck a nerve, and he struck a nerve because many people think that Senators and Members of the House have health insurance which is paid for by the Government, which is not true. We pay for the health service which we have, but we also have additional health service policies, Blue Cross and Blue Shield. To have legislation limiting what a Member could have to that which every other citizen would have at Government expense would be a great inducement to pass a widespread health insurance benefit, and perhaps we ought to do that. That was Senator Wellstone's idea. He debated it with fervor and intensity. It was an extraordinary debate. I do not think he got too many votes for his plan, but that did not diminish it in any way. That is the great quality of a dissenter. This Chamber will not be the same without Senator Wellstone. In the absence of any other Senator on the floor, I ask unanimous consent that my comments on homeland security be given as in morning business.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to submit a resolution with respect to the National Institutes of Health. The progress on medical research has been astounding, thanks to remarkable biomedical research and achievements. When I came to the Senate after being elected in 1980, the budget for the National Institutes of Health was $3.6 billion. The Senate bill this year will advance that funding to more than $27 billion, and a good bit of that growth has been occasioned by the resolution which was passed in 1997 to double the NIH funding over a 5-year period. Today I am submitting a resolution to triple the NIH funding over the 10-year period from fiscal year 1999 through the 2008. When the resolution was passed to double NIH funding, that was a statement of the Senate's druthers, so to speak. It has been very hard to get the dollars, but we have managed to do so. In 1998, Senator Tom Harkin, who was then ranking member, and I, chairman--Senator Harkin and I have passed the gavel back and forth, and it has been a seamless transition. I much prefer to be the chairman, but when Senator Harkin is the chairman, our partnership is such that we move ahead in the public interest. I learned a long time ago, if you want to get something done in Washington, you have to cross party lines. In 1998, Senator Harkin and I asked for an additional $1 billion. The Budget Committee turned us down. We came to the floor and lost on a vote of 63 to 37, but got out our sharp pencils and found the $1 billion as a matter of priorities. Having lost on the effort for $1 billion, we came back the next year and asked for $2 billion. Again, we were defeated on a floor vote. Again, we established priorities and found the $2 billion. We had a number of votes and had difficulties in coming to the figure, but the last recorded vote on the NIH budget was 96 to 4. There have been remarkable achievements by the National Institutes of Health. NIH research has developed effective treatments for acute leukemia. NIH research in the past 30 years has doubled the life expectancy of sickle cell disease patients. NIH research has resulted in the identification of the genetic mutations for osteoporosis, amyotrophic lateral sclerosis, known as Lou Gehrig's disease, cystic fibrosis, Huntington's disease, skin cancer, breast cancer, and prostate cancer. A third of all known genetic defects affect the nervous system, and so far more than 200 genes have been identified that can cause or contribute to neurological disorders, with a better understanding of multiple gene influences on disease risk, progression, and severity. Research by the NIH has brought remarkable progress with the first treatments for acute stroke, spinal cord injury, new immune therapies that ameliorate symptoms and slow the progression of multiple sclerosis, and increased drug and surgical options for Parkinson's disease, epilepsy, and chronic pain. Research sponsored by the National Institutes of Health has been key in the development of the MRI, magnetic resonance imaging, positron emission tomography, and other imaging technologies. Emerging understanding of the principles of biomimetics has been applied to the development of hard tissue, such as bone and teeth, as well as soft tissue, and this field of study holds great promise for the design of new classes of biomaterials, pharmaceuticals, diagnostic and analytical reagents. Notwithstanding all of these achievements, Americans continue to suffer greatly. Women have traditionally been under-represented in medical research protocols, yet are severely affected by diseases, including breast cancer, ovarian cancer, osteoporosis, and cardiovascular disorders. Cancer remains a comprehensive threat to any tissue or organ of a body at any age and remains a leading cause of morbidity and mortality. The extent of psychiatric and neurological diseases poses considerable challenges in understanding the workings of the brain and nervous system. Recent advances in the treatment of HIV illustrate the promise research holds for even more effective, accessible, and affordable treatments for persons with HIV, but at least 320,000 Americans are now suffering from AIDS and hundreds of thousands more with HIV infections. The written resolution, which I am submitting, chronicles in greater detail the severe problems facing Americans with Parkinson's, Alzheimer's, heart ailments, cancer, and many other afflictions, but also we note the tremendous achievements of the National Institutes of Health. There remains a great deal more to be done, and since November of 1998, when the stem cell phenomenon came upon the scene, we now have a real opportunity for enormous progress with stem cell research. That requires a change in Federal law on the Federal funding, and it is controversial because stem cells come from embryos. They come from embryos which are discarded. Characteristically, when a dozen or so embryos are created for in vitro fertilization, many--8, 9, 10--are discarded, thrown away. If those embryos could produce life, that would be their highest form, and that is what should be done. But if the choice is discarding them or using them to save lives, it seems to me the choice is clear: To use them to save lives. Last year, I suggested, successfully, that we have $1 million for embryo adoption in our appropriations bill to encourage people to come forward and adopt embryos, but still many remain to be discarded. Confusion has arisen over an issue of what is called therapeutic cloning which is confused with human cloning. There is, I think, a consensus, if not unanimity, that human cloning is undesirable. But nuclear transplantation, which has been mislabeled as therapeutic cloning, offers lifesaving procedures. In essence, it takes a skin cell from a person and places it into an egg with the nucleus removed. The stem cells produced from this process are not rejected and can be inserted in the brain for people who suffer from Parkinson's. Legislation will soon be proposed which will promote Federal funding on important stem cell research which has the potential to save millions of lives. These issues of disease which confront America involve virtually all Americans in terms of someone in a family or a friend or an acquaintance suffering from these ailments. To reiterate, Mr. President, I have sought recognition today to submit a resolution to triple funding for the National Institutes of Health over a 10-year period beginning in 1999. As chairman, and now ranking member, of the Appropriations Subcommittee for Labor, Health and Human Services, Education and Related Agencies, I have said many times that the National Institutes of Health is the crown jewel of the Federal Government--perhaps the only jewel of the Federal Government. When I came to the Senate in 1981, NIH spending totaled $3.6 billion. In fiscal year 2003, $27.1 billion is recommended by the Senate Appropriations Committee. If this recommendation is signed into law, it will result in a doubling of the fiscal year 1998 level within a 5-year period. This money has been very well spent. The successes realized by this investment in NIH have spawned revolutionary advances in our knowledge and treatment for diseases such as cancer, Alzheimer's disease, Parkinson's disease, mental illness, diabetes, osteoporosis, heart disease, ALS and many others. It is clear that Congress' commitment to the NIH is paying off. Now it is crucial that increased funding be continued in order to convert these advances into treatment and cures. Our investment has resulted in new generations of AIDS drugs which are reducing the presence of the AIDS virus in HIV infected persons to nearly undetectable levels. Death rates from cancer have begun a steady decline. With the sequencing of the human genome, we will begin, over the next few years, to reap the benefits in many fields of research. And if scientists are correct, stem cell research could result in a veritable foundation of youth by replacing diseased or damaged cells. I anxiously await the results of all of these avenues of remarkable research. This is the time to seize the scientific opportunities that lie before us. On May 21, 1997, the Senate passed a sense of the Senate resolution stating that funding for the NIH be doubled over 5 years. Regrettably, even though the resolution was passed by an overwhelming vote of 98 to 0, the Budget Resolution contained a $100 million reduction for health programs. That prompted Senator Harkin and myself to offer an amendment to the budget resolution to add $1.1 billion to carry out the expressed sense of the Senate to increase NIH funding. Unfortunately, our amendment was tabled by a vote of 63 to 37. We were extremely disappointed that, while the Senate had expressed its druthers on a resolution, it was simply unwilling to put up the actual dollars to accomplish this vital goal. The following year, Senator Harkin and I again introduced an amendment to the Budget Resolution which called for a $2 billion increase for the NIH. While we gained more support on this vote than in the previous year, our amendment was again tabled by a vote of 57 to 41. Not to be deterred, Senator Harkin and I again went to work with our subcommittee and we were able to add an addition $2 billion to the NIH account for fiscal year 1999. In fiscal year 2000, Senator Harkin and I yet again offered another amendment to the Budget Resolution to add $1.4 billion to the health accounts, over and above the $600 million increase which had already been provided by the Budget Committee. Despite this amendment's defeat by a vote of 47 to 52, we were able to provide a $2.3 billion increase for NIH in the fiscal year 2000 appropriation's bill. In fiscal year 2001, Senator Harkin and I yet again offered an amendment to the Budget Resolution to increase funding for health programs by $1.6 billion. This amendment passed by a vote of 55 to 45. This victory brought the NIH increase to $2.7 billion for fiscal year 2001. However, after late night conference negotiations with the House, the funding for NIH was cut by $200 million below that amount. In fiscal year 2002, the budget resolution once again fell short of the amount necessary to achieve the NIH doubling. Senator Harkin and I, along with nine other Senators offered an amendment to add an additional $700 million to the resolution to achieve our goal. The vote was 96 to 4. The Senate Labor-HHS Subcommittee reported a bill recommending $23.7 billion, an increase of $3.4 billion over the previous year's funding. But during conference negotiations with the House, we fell short of that amount by $410 million. That meant that in order to stay on a path to double NIH, we would need to provide an increase of $3.7 billion in the fiscal year appropriations bill. The fiscal year 2003 bill, reported on July 22, 2002, by the Senate Appropriations Committee, contained $3.7 billion which will complete our doubling effort. We have fought long and hard to achieve a doubling of the NIH research dollars, but until treatments and cures are found for the many maladies that continue to plague our society, we must continue our fight. I, like millions of Americans, have benefited tremendously from the investment we have made in the National Institutes of Health. That is why I offer this resolution today--to call upon the Congress to triple the funding for the National Institutes of Health, so that we can continue to carry forward the important research work of the world's premier medical research facility. I ask that my colleagues join me in supporting this resolution. I yield the floor. I ask unanimous consent that the text of the resolution, together with a schedule which sets forth the progress necessary to achieve the tripling of the NIH funding over the allotted period, be printed in the Record.

Mr. SPECTER

Mr. SPECTER. I thank the Chair. (The remarks of Mr. SPECTER pertaining to the submission of S. Res. 347 are printed in today's Record under ``Submission of Concurrent and Senate Resolutions.'')

Mr. SPECTER. Mr. President, I ask unanimous consent to speak for up to 15 minutes.

Mr. SPECTER

Mr. SPECTER. Mr. President, today at the weekly Thursday Republican Lunch group, Lifestyle Advantage from Highmark Blue Cross/Blue Shield, in collaboration with Dr. Dean Ornish, served a gourmet, low-calorie, virtually no-fat, lunch with the following menu: Tuscan Vegetable Minestrone, Roasted Vegetable Lasagne, Caesar Salad, Apple-Raisin Strudel, Vanilla ala mode with caramel sauce. As explained by Ms. Anna Silberman and Ms. Marlene Janco, Executives of Lifestyle Advantage/Highmark, the lunch contained approximately 450 calories compared to about 850 calories with regular ingredients. There was real enthusiasm among the 27 Republican Senators who were very complimentary about the taste, elegance, and healthy content of the cuisine. When one senator was being served the apple-raisin strudel with vanilla ice cream--actually ice milk--topped by caramel sauce and was told it was fat-free and low-calorie, he replied: ``Next they'll want to sell me the Brooklyn Bridge.'' When assured that it was fat-free and low-calorie, he was very much impressed. Other senators marveled at the tastiness of the caesar salad, especially contrasted to its ordinarily high-caloric content. The Tuscan vegetable minestrone had a special quality with roasted vegetables. Again, the roasted vegetables in the lasagne made it especially tasty. The Capitol dining service is now considering adding to the regular menu on both the House and Senate sides low-fat, low-calorie tasty cuisine as demonstrated by today's lunch.

Mr. SPECTER

Mr. SPECTER. When Senator Biden and Senator Lugar decided not to offer that amendment, I decided to offer it myself. I was surprised that the Biden-Lugar amendment was not offered before 1 o'clock yesterday, which was the deadline. I worked with the Parliamentarian to structure a procedure to offer this as a second-degree amendment, and for reasons which were detailed in an earlier speech on the Senate floor, a unanimous consent agreement, in my absence, was entered into, and the pending first-degree amendments, to which this would have been amended, were withdrawn. I do not want to get too much into the arcane details of our Senate procedure, but I was foreclosed from offering that amendment, and I think it is very unfortunate the Senate did not have an opportunity to consider the Biden-Lugar amendment. I am not sanguine to say it would have been enacted, but, on a matter of this importance, I felt very strongly that procedural rules should not bar the Senate from consideration, especially when those procedural rules had been complied with until, as I say, the unanimous consent agreement, in my absence, in effect, pulled the rug out from under me. I am concerned that the scope of the present resolution goes a little far in authorizing the President to use ``all means that he determines to be appropriate,'' which is a subjective test, contrasted with the 1991 authorization which said the President was authorized to use force in order to implement Security Council resolutions. It is too late in the day to press that distinction, but I think it is important to note. Similarly, I think it is important to note the potential historical impact of the pending resolution which, in effect, delegates to the President the authority to declare war. Make no mistake about it, this resolution for the use of force is the equivalent of a declaration of war, and Congress has the authority to declare war. However, we are saying in effect that the President may decide at some future time whether war should be declared. In an earlier presentation on the Senate floor, I detailed, to substantial extent, the considerations and concerns I had about the constitutionality of that kind of a delegation of power. So, in sum, we are faced with a tough decision for the first time in the history of this country to use preemptive action. I commend President Bush for coming to Congress. Originally he said he did not need to do so and would not do so. Later, he modified that, saying that while he might not have to, he was coming to Congress. He initially talked about unilateral action, and since has worked very hard in the United Nations. It may be that the practical effect of what the President is doing now, through Secretary of State Colin Powell, amounts to what was sought in the Biden-Lugar resolution, and I do believe the likelihood of getting UN action is better if we proceed to give the President the authority to act without UN support because if we said, as Senator Levin proposed, that his authority to use force would be conditioned on a UN resolution, it would be, in effect, an open invitation to the UN not to act, knowing the President and the United States, were limited from acting if the UN did not, and subjecting our national interests to China, Russia, or France's veto. So I do believe, of all the alternatives, giving the President this power without conditioning it on previous UN resolutions is the best way to get the United Nations to act to enforce the obligations which Iraq has to the United Nations, running since 1991, which have been in desperate breach. So I do intend to vote for the pending resolution. I supported the amendment by Senator Byrd to the effect that nothing in this resolution should be deemed to impede or affect the constitutional authority of the Congress to declare war. Ordinarily you would not think a statute or a resolution would jeopardize constitutional authority, which is paramount, but I am concerned about the issue of erosion, and that is why I supported Senator Byrd in the amendment that nothing in this resolution should undercut the authority of Congress to declare war. On this solemn occasion, when it appears now highly likely--or perhaps more accurately, virtually certain--that this resolution will be enacted by both the House of Representatives and the Senate, and that we are on a very difficult course, it is hoped that the tremendous power of the United States, in conjunction with other countries, will be sufficient to bring Saddam Hussein to his senses, if he has any, that he ought to submit to inspections. If he does not submit to inspections, then it is confirmation that he, in fact, has something to hide and there is something really at risk. So among the very many complex considerations, it is my considered judgment the adoption of this resolution is the best course for our country. I yield the floor. Exhibit 1 S. Con. Res. 78 Whereas the International Military Tribunal at Nuremberg was convened to try individuals for crimes against international law committed during World War II; Whereas the Nuremberg tribunal provision which held that ``crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced'' is as valid today as it was in 1946; Whereas, on August 2, 1990, and without provocation, Iraq initiated a war of aggression against the sovereign state of Kuwait; Whereas the Charter of the United Nations imposes on its members the obligations to ``refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state''; Whereas the leaders of the Government of Iraq, a country which is a member of the United Nations, did violate this provision of the United Nations Charter; Whereas the Geneva Convention Relative to the Protection of Civilian Persons in Times of War (the Fourth Geneva Convention) imposes certain obligations upon a belligerent State, occupying another country by force of arms, in order to protect the civilian population of the occupied territory from some of the ravages of the conflict; Whereas both Iraq and Kuwait are parties to the Fourth Geneva Convention; Whereas the public testimony of witnesses and victims has indicated that Iraqi officials violated Article 27 of the Fourth Geneva Convention by their inhumane treatment and acts of violence against the Kuwaiti civilian population; Whereas the public testimony of witnesses and victims has indicated that Iraqi officials violated Articles 31 and 32 of the Fourth Geneva Convention by subjecting Kuwait civilians to physical coercion, suffering and extermination in order to obtain information; Whereas, in violation of the Fourth Geneva Convention, from January 18, 1991, to February 25, 1991, Iraq did fire 39 missiles on Israel in 18 separate attacks with the intent of making it a party to war and with the intent of killing or injuring innocent civilians, killing 2 persons directly, killing 12 people indirectly (through heart attacks, improper use of gas masks, choking), and injuring more than 200 persons; Whereas Article 146 of the Fourth Geneva Convention states that persons committing ``grave breaches'' are to be apprehended and subjected to trial; Whereas, on several occasions, the United Nations Security Council has found Iraq's treatment of Kuwaiti civilians to be in violation of international law; Whereas, in Revolution 665, adopted on August 25, 1990, the United Nations Security Council deplored ``the loss of innocent life stemming from the Iraq invasion of Kuwait''; Whereas, in Revolution 670, adopted by the United Nations Security Council on September 25, 1990, it condemned further ``the treatment by Iraqi forces on Kuwait nationals and reaffirmed that the Fourth Geneva Convention applied to Kuwait''; Whereas, in Resolution 674, the United Nations Security Council demanded that Iraq cease mistreating and oppressing Kuwaiti nationals in violation of the Convention and reminded Iraq that it would be liable for any damage or injury suffered by Kuwaiti nationals due to Iraq's invasion and illegal occupation; Whereas Iraq is a party to the Prisoners of War Convention and there is evidence and testimony that during the Persian Gulf War, Iraq violated articles of the Convention by its physical and psychological abuse of military and civilian POW's including members of the international press; Whereas Iraq has committed deliberate and calculated crimes of environmental terrorism, inflicting grave risk to the health and well-being of innocent civilians in the region by its willful ignition of 732 Kuwaiti oil wells in January and February, 1991: Whereas President Clinton found ``compelling evidence'' that the Iraqi Intelligence Service directed and pursued an operation to assassinate former President George Bush in April 1993 when he visited Kuwait; Whereas Saddam Hussein and other Iraqi officials have systematically attempted to destroy the Kurdish population in Iraq through the use of chemical weapons against civilian Kurds, campaigns in 1987-88 which resulted in the disappearance of more than 182,000 persons and the destruction of more than 4,000 villages, the placement of more than 10 million landmines in Iraqi Kurdistan, and ethnic cleansing in the city of Kirkuk; Whereas the Republic of Iraq is a signatory to international agreements including the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Prevention and Punishment of the Crime of Genocide, and the POW Convention, and is obligated to comply with these international agreements; Whereas section 8 of Resolution 687 of the United Nations Security Council, adopted on April 3, 1991, requires Iraq to unconditionally accept the destruction, removal, or rendering harmless, under international supervision of all chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support, and manufacturing facilities; Whereas Saddam Hussein and the Republic of Iraq have persistently and flagrantly violated the terms of Resolution 687 with respect to elimination of weapons of mass destruction and inspections by international supervisors; Whereas there is good reason to believe that Iraq continues to have stockpiles of chemical and biological munitions, missiles capable of transporting such agents, and the capacity to produce such weapons of mass destruction, putting the international community at risk; Whereas, on February 22, 1993, the United Nations Security Council adopted Resolution 808 establishing an international tribunal to try individuals accused of violations of international law in the former Yugoslavia; Whereas, on November 8, 1994, the United Nations Security Council adopted Resolution 955 establishing an international tribunal to try individuals accused of the commission of violations of international law in Rwanda; Whereas more than 70 individuals have faced indictments handed down by the International Criminal Tribunal for the Former Yugoslavia in the Hague for war crimes and crimes against humanity in the former Yugoslavia, leading in the first trial to the sentencing of a Serb jailer to 20 years in prison; Whereas the International Criminal Tribunal for Rwanda has indicted 31 individuals, with three trials occurring at present and 27 individuals in custody; Whereas the United States has to date spent more than $24 million for the International Criminal Tribunal for the Former Yugoslavia and more than $20 million for the International Criminal Tribunal for Rwanda; Whereas officials such as former President George Bush, Vice President Al Gore, General Normal Schwarzkopf and others have labeled Saddam Hussein a war criminal and called for his indictment; Whereas a failure to try and punish leaders and other persons for crimes, against international law establishes a dangerous precedent and negatively impacts the value of deterrence to future illegal acts; Resolved, by the Senate (the House of Representatives concurring), That the President should-- (1) call for the creation of a commission under the auspices of the United Nations to establish an international record of the criminal culpability of Saddam Hussein and other Iraqi officials; (2) call for the United Nations to form an international criminal tribunal for the purpose of indicting, prosecuting, and imprisoning Saddam Hussein and other Iraqi officials who are responsible for crimes against humanity, genocide, and other violations of international law; and (3) upon the creation of such an international criminal tribunal, week the reprogramming of necessary funds to support the efforts of the tribunal, including the gathering of evidence necessary to indict, prosecute and imprison Saddam Hussein and other Iraqi officials.

Mr. SPECTER. Mr. President, all the rules have changed since September 11 of last year. We now know that in the United States, we are no longer invulnerable to attack by outside powers. The breadth of the Atlantic and the Pacific no longer protect us. We learned a very bitter lesson on September 11 that has to be taken into account in our current conduct. By 20/20 hindsight, it is apparent that we should have acted against Osama bin Laden and al-Qaida long before September 11. Osama bin Laden was under indictment for killing Americans in Mogadishu in 1993. Osama bin Laden was later indicted for the embassy bombings in Africa in 1998. We knew Osama bin Laden was implicated in the terrorism against the destroyer USS Cole. We knew Osama bin Laden had carried on a worldwide jihad aimed at the United States, and we have not yet determined the full extent of our knowledge of bin Laden. However, it is my personal view, having served as chairman of the Intelligence Committee of the 104th Congress, that had we put all of the so-called dots together on one screen, we would have had a virtual blueprint as to what al-Qaida and Osama bin Laden would do. Now we have the risk as to what to do about Saddam Hussein and what to do about Iraq. There is considerable unrest in the United States today about whatever course of action we take. In a series of town meetings for the last 3 months, I have had many constituents say to me: Why does the United States want to start a war? The United States has never started a war in the past. The United States has only finished wars. Certainly were it not for the experience on September 11 last year, I think we would not have considered preemptive action. However, the authorities and international law do contemplate action where there is a threat--a significant threat. Hugo Grotius, considered the father of international law, said in his 1925 book ``The Law of War and Peace'' that a nation may use self- defense in anticipation of attack when there is ``present danger.'' He said, ``It is lawful to kill him who is preparing to kill.'' There is no doubt that there is present danger. Is Saddam Hussein preparing to attack the United States or other peace-loving nations? There is a real question as to why he would amass chemical weapons in great quantity, biological weapons in great quantity, delivery systems capable of reaching the United States, and search for nuclear weapons which we are not sure of, but he may be very close. Another foremost authority on international law, Elihu Root, said in 1914 that international law did not require a nation to wait to use force in self-defense until it is too late to protect itself. This is the essential legal backdrop where we must consider what should be done. There are a number of alternatives we can take. First, we can do nothing--no resolution, no action--and simply let Saddam Hussein continue to flout his commitments made to the United Nations. However, my view is, after a lot of careful deliberation, analysis, and study, that the risk of inaction is worse than the risk of action. There are major risks in action. We have to consider what losses there will be on United States personnel, British personnel, or whoever may join us. We have to consider the risk to Israel, which is in the neighborhood of Iraq. Iraq is still at war with Israel. During the Persian Gulf War in 1991, some 39 Scud missiles were rained down on Israel. While they have a missile defense system, it is not adequate to protect the whole nation. Notwithstanding that, Prime Minister Sharon has made public announcements that he endorses United States military action against Iraq. The risks of not doing anything may subject the United States to a repeat of September 11, which could be even more cataclysmic. We continue to worry about al-Qaida, which has shown a ruthless disregard for human life and the most barbaric kind of conduct. The risks with Saddam Hussein are comparable. Then how do we approach the matter to have the best likelihood of producing the kind of coalition put together by President Bush in 1991? President Bush, in 1991, was able to motivate the Arab world to move against Saddam Hussein, as well as the traditional allies. I gave very careful consideration to the amendment proposed by the Senator from Michigan, Mr. Levin, where he proposed that we ought to grant the President authority to use force, but only after a United Nations resolution authorizing the use of force. The advantage of the Levin amendment was that we would have multilateral action, very much like the Gulf War in 1991. The disadvantage would be that we would be subject to the veto of Russia, China, or even France, and that ultimately the United States would be ceding a considerable quantum of national sovereignty if we gave up our right to decide what course of conduct we should take, which is in our national interest. I carefully considered an amendment which had been prepared and circulated by Senator Lugar and Senator Biden. That resolution emphasized that the President should exhaust all possible means for an international coalition. However, if the President found it impossible to organize an international coalition and believed that the interests of the United States were threatened, in self-defense the President could act on his own or in conjunction with Great Britain. However, the President would not have to await U.N. action. It would seem to me the proposal of Senator Biden and Senator Lugar was the best idea, and I had agreed to cosponsor that resolution or an amendment offered which contained the essence of that resolution. Madam President, I ask unanimous consent that the text of the Biden- Lugar resolution be printed in the Record at the conclusion of my statement.

Mr. SPECTER. Mr. President, it cannot be repeated too often in the Chamber of the Senate, the gravity of the action which we are about to take. The House of Representatives has already considered and passed a similar resolution. For some time now it has been apparent the die has been cast. Of all of the constitutional responsibilities entrusted to Congress, the authority and responsibility to declare war is the most important. This will be the second most important vote which I will have cast in the 22 years I have had the privilege of serving in the Senate. The other vote was the authorization for the use of force against Iraq in 1991. Now, the same situation confronts us because, albeit by 20/20 hindsight, we did not finish the job in 1991. The question is: What course of action would be most likely to avoid violence--that is, an attack on the United States or other peaceful countries, or an attack on Iraq? The most desirable objective would be to achieve the disarmament of Iraq in accordance with the commitments which Iraq made at the conclusion of the Gulf War: to disarm; not to produce chemical or biological weapons, which Iraq has violated; and not to produce nuclear weapons. Iraq has been doing its utmost to create nuclear weapons. The coalition, which was formed in 1991 by then-President Bush, is the preferable way to go at the present time. We know Saddam Hussein is cruel, repressive, and evil. There are hardly sufficient adjectives in the lexicon to adequately describe his vicious character. That has long since been recognized and was the point of a resolution which this Senator introduced on March 3, 1998, to constitute a war crimes tribunal and to try Saddam Hussein as a war criminal because he had violated the basic laws against humanity. He had engaged in reprehensible conduct. That resolution passed the Senate by a vote of 93 to 0 on March 13, 1998. Rather than take time to delineate all of his acts of barbarism and cruelty, I ask unanimous consent that a copy of this resolution be printed in the Congressional Record at the conclusion of my presentation.

Mr. SPECTER. Mr. President, I have sought recognition to respond to the Senator from Nevada, over the Senator from Virginia, because what the Senator from Virginia has said and what the Senator from Arizona has said does not bear on this issue. I am not upset. I think I have been treated unfairly. I did not offer a first-degree amendment to the so-called Biden-Lugar amendment because I had expected Senator Biden to offer that amendment. He did not do so up until 1 p.m. yesterday. Having found that out, I consulted with the Parliamentarian and found out that I could offer a second-degree amendment to some seven pending first-degree amendments. I worked it out very carefully and elaborately with the Parliamentarian this morning. The word was out that I was offering the Biden-Lugar amendment. Other Members of the Senate from the other side of the aisle approached me, liked the fact I was doing it, and wanted an opportunity to vote on it. I got a call from a ranking member of the State Department saying the White House was concerned that I offered the amendment. The word was out that I had moved ahead to offer the Biden- Lugar amendment as a second-degree amendment. I had done that because, after extensive conversations with Senator Biden last week, I had decided to cosponsor it. When it was not offered, I decided to offer it. I was under no illusion of its being successful. It seemed to me on a matter of this importance, going to war, that matter ought to be before the Senate. So I worked it out. When I walked off the floor, I was told by an aide that the Senator from Nevada had asked unanimous consent to withdraw not only the Levin amendment, the Durbin amendment, and the Boxer amendment, but also the Dayton amendment. That was done in my absence. I thought that was unfair. I approached the Senator from Nevada and said so. It seems to me that I ought to have an opportunity to offer that amendment. Now, I read the Record from last night that is referred to with respect to three of the Senators, Senator Levin, Senator Boxer, and Senator Durbin. Senator Dayton is not mentioned. I know he has the right to withdraw the amendment. Senator Dayton does not like the resolution. Perhaps he would not have. There is an issue as to whether Senator Dayton's amendment was germane. I am advised by the Parliamentarian that my second-degree amendment being germane cures whatever infirmity there may be on the Dayton first-degree amendment. I have been in this body for 22 years, and I do not think I have objected to any unanimous consent agreement. However, there are plenty of Senators who do. I am not talking about the percentage the Senator from Nevada offers on his own behalf. This is part of my objection to the way this entire debate is being run. There is cloture filed. I understand the rules. Seventh-five Senators voted against it. I have already heard comments from some who voted against it who are sorry they did so. We are about to go to war and a Senator does not have a right to offer an amendment. A unanimous consent agreement is asked in my absence and I do not think that is fair. I yield the floor.

Mr. SPECTER. Mr. President, I thank the distinguished President pro tempore for yielding me 5 minutes. I do support his amendment which has two provisions. First: Nothing . . . is intended to alter the constitutional authorities of the Congress to declare war, grant letters of Marque and Reprisal, or other authorities invested in Congress by Section 8, Article I of the Constitution. I think this provision is necessary, although customarily you would not think that you would need a statute to say the Constitution governs. However, I have expressed on the floor of the Senate my concern of the constitutionality of the delegation of authority to the President here. Congress has the authority to declare war. The authorization for the use of force is a practical equivalent. What we are doing is saying the President may decide when to use that force and, in effect, decide when the war will start, or really to make a determination as to when war is declared. So I think that it is important to have this sort of provision, although its importance is hard to evaluate historically. The second part of the pending amendment of the Senator from West Virginia is: . . . shall be construed as granting any authority to the President to use the United States Armed Forces for any purpose not directly related to a clear threat of imminent, sudden, and direct attack upon the United States, its possessions, or territories, or the Armed Forces of the United States, unless the Congress of the United States otherwise authorizes. The language of ``clear threat of imminent, sudden, and direct attack'' has been inserted in place of the language ``the existing threat posed by Iraq.'' This does call for a more precise determination of the need for preemptive action, and I think is sound. Ultimately, it is not going to detract from the authority of the President because the resolution allows the President to ``use all means that he deems to be appropriate,'' which is very broad authority. The language of the pending Byrd amendment is consistent with one of the earliest articulations of the concept of self-defense. Secretary of State Daniel Webster in 1842, referring to self-defense in an anticipatory sense, stated that its use be ``confined to cases in which the necessity of that self-defense is instant, overwhelming, and leaving no choice of means and no moment of deliberation.'' Hugo Grotius, considered the father of international law, said in his 1925 treatise that a nation may use self-defense in anticipation of attack when there is ``present danger,'' which is a broader definition. Grotius further said: It is lawful to kill him who is preparing to kill. Elihu Root, a distinguished scholar on international law, said in 1914 that international law did not require a nation to wait to use force in self-defense ``until it is too late to protect itself.'' I think the language of the pending amendment offered by the Senator from West Virginia is helpful in providing assurance that preemptive force is really necessary. We know President Bush said he does not intend to use this military force unless absolutely necessary and has already made a determination that he thinks there is an imminent threat from Iraq. Some of the information which has been presented, partly in closed session, supports the President's concern along that line, but I do think this language is helpful. Therefore, I support it. I thank the Chair and yield the floor.

Mr. SPECTER. I thank the distinguished President pro tempore and the Chair. Mr. President, I have sought this time to register my very strong objection to cloture on this resolution authorizing the use of force, which is the equivalent of a declaration of war. In my 22 years in the Senate, the only issue which has been of equal importance was the authorization for the use of force in 1991. The motion to invoke cloture, which is to cut off debate, is supposed to be done when there is a filibuster. However, there is no filibuster present on this issue. I came to the floor yesterday in an effort to participate in a colloquy with Senator Lieberman, the lead proponent of the bill, and found that all the time was allotted and all the time was taken. When no one appeared, we had about 3 minutes to discuss an issue which really required 30 minutes or an hour. I then sought time later in the afternoon, and all the time was taken. I then sought time this morning and find that the only time which is available is some time after 5 p.m. this afternoon. It is customary in the Senate to see two lights on for a quorum call, but there have been very few quorum calls on this resolution--really none--except when Senators are on their way to the floor or when there are discussions. So there has certainly not been any effort to filibuster. Those who sought time to come over and discuss important issues have found that there is no time to do so. We now have a series of amendments lined up with time allocations which are very brief. To discuss the cloture resolution itself in 45 minutes is very limited. To discuss the amendments which are pending is very difficult. There is in the bill a change from the 1991 resolution which has an objective test for the President to use force to carry out U.N. resolutions, whereas in the current resolution, it is subjective as the President sees fit. That is a matter of great moment which has not been debated in the Senate. The resolution has numerous whereas clauses so that one can read the resolution to justify the use of force if the Iraqi Government continues to abuse its citizens. I would not want to say the Iraqi Government has not abused its citizens, but I do not believe anyone is seriously contending that is the basis for the President to take the United States to war. To stop Saddam Hussein from having weapons of mass destruction which pose a threat to the United States, is a reason. Then there is the issue of regime change, which is in the whereas clause. The resolution contains a provision for U.S. national security interests. I posed questions to the Senator from Connecticut yesterday as to whether regime change was comprehended in our national security interest. That has yet to be answered. The point I am making is that this is a matter which requires discussion and analysis. I do not believe it helps the President of the United States to have the Senate rush to judgment. It is not quite a blank check. It is not quite a knee-jerk reaction, but it is not the kind of deliberation that ought to characterize the work of this body. It would be unfortunate if the Senate votes for a resolution authorizing the use of force notwithstanding the questions which I have raised, although I said on the floor before that I may well support the President. However, if we do so in a context of deliberation and thoughtfulness when people like Senator Lieberman, Senator McCain, Senator Warner, Senator Biden, Senator Jeffords, and other Members, put our imprimatur on it, it has some significance in the international arena, providing it is debated, and providing there is some lucid discussion on all of the issues we are confronting. I noted in the ``Philadelphia Inquirer'' this week the comment of a House member: The President has handcuffed us. I am voting yes on this resolution because I think ultimately the box the President has put us in has forced us to vote in the interests of national security. I do not think we ought to vote for this resolution because we are being handcuffed. I do not think anyone anywhere ought to vote for a resolution for being handcuffed or for being put in a box. These are matters which require a lot of analysis and a lot of debate. The cloture motion will cut off nongermane amendments. That is a very tight restriction. Other amendments ought to be offered which are very important to the discussion on this critical matter. I thank the Senator from West Virginia, and I yield the floor.

Mr. SPECTER

Mr. SPECTER. I thank the Senator from Connecticut.

Mr. SPECTER. The question I have for the Senator from Connecticut is on the expansive whereas clauses. One of these clauses refers to repression of the civilian population of Iraq. I ask whether the resolution intends to give the President the power to use force to cure those kinds of matters, which are separate from the issues of weapons of mass destruction, and whether the issue on weapons of mass destruction is satisfied, so that the UN resolutions are satisfied, and whether the clause on authorization relating to defending the national security interests of the United States will be satisfied with the resolution of the weapons of mass destruction without picking up the whereas clause on regime change. I think that is less than a minute, Mr. President.

Mr. SPECTER. Probably less than the time to inquire about it. I will ask the question in a minute or less.