Arlen Specter

Mr. SPECTER

Mr. SPECTER. I ask, Mr. President, the Senator from Vermont if I may pose one more question.

Mr. SPECTER. Mr. President, I had discussed briefly with the Senator from Connecticut a couple of questions, and I would like to engage him in a colloquy. The first relates to the difference in language between the 1991 resolution authorizing then-President Bush to use force, which says in pertinent part: The President is authorized to use United States Armed Forces, pursuant to resolutions of the UN, in order to achieve implementation of those Security Council resolutions. Now, that is different from the authorization in the current resolution, which says: The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate. The current resolution might be called a subjective standard, which gives substantially greater latitude to President Bush to use force ``as he determines to be necessary and appropriate.'' This language is very much subjective as contrasted with the 1991 language, which is more objective, authorizing the President to use force to achieve implementation of certain Security Council resolutions. I ask the Senator from Connecticut if the intent here, in trying to develop some legislative history, notwithstanding the language in the present resolution, is really about the same--or is the same--as the 1991 resolution.

Mr. SPECTER

Mr. SPECTER. Mr. President, I make a unanimous consent request that Thomas Swanton, a staff member of my office, be granted floor privileges for the duration of debate on S.J. Res. 45.

Mr. SPECTER

Mr. SPECTER. Mr. President, I had sought recognition initially to discuss two other subjects. While the issue of Iraq is very much on the minds of the American people and the focus of attention worldwide, there are other important considerations which are pending and are of interest to Pennsylvanians and what is happening with the economy. We really cannot let our attention focus solely on Iraq. There are many matters which involve important economic issues and great numbers of jobs. That is a subject that is very much on my mind with respect to the Pennsylvania dairy farmers. I propose to introduce legislation this afternoon on that subject. Agriculture is the largest industry in Pennsylvania, and dairy is its single largest component. Pennsylvania is the fourth largest dairy producer in the Nation. We have approximately 10,300 dairy farms which produce $1.710 billion worth of milk each year. Regrettably, over the past decades, Pennsylvania has lost an average of 300 to 500 dairy farmers per year. In the years 1993 to 1998, Pennsylvania lost more than 11 percent of its dairy farmers. That is because Pennsylvania farmers have had to deal with drought and other natural disasters, high feed and transportation costs, and other variables that challenge their ability to sustain their farms, but mostly because the cost of production exceeds what has been the average price for class 3 dairy products. It varies tremendously. It was $15.90 in September of last year. It went down to $9.92 in September of this year. The cost has been tremendous. Meanwhile, the average cost of production of milk in Pennsylvania per hundredweight is calculated by the Pennsylvania Department of Agriculture. The average was $14.32 in the year 2001. The price for milk in January of 2002 was $11.87 per hundredweight, going down to $10.82 per hundredweight in May, and $9.54 per hundredweight in August of this year. The cost of production exceeds what the Pennsylvania dairy farmers are able to obtain for their milk. I serve on the Agriculture Subcommittee of Appropriations. On May 14 of last year at an extensive hearing in Philadelphia, we heard from economists, we heard from farmers, and an analysis for merchants and an analysis of what was happening on dairy farming. It is a complex matter. While the price of milk goes down for dairy farmers, the cost of milk goes up to the consumer. I know at the shop where I buy a half-gallon of milk, it was $1.89, and it jumped to $2.19 for a half-gallon of milk at the precise time when the payments made to the dairy farmers were going down. It seems to me there really has to be an additional factor in the calculation of these prices by the U.S. Department of Agriculture. It is for that reason that I am proposing legislation today which would amend section 8(c)(5) of the Agriculture Adjustment Act with amendments by the Agriculture Marketing Agreement Act of 1937 to add the following: Subsection M, using as factors to determine the basic formula price for milk under an order issued pursuant to this section (i) the price of feed grains, including the cost of concentrates, by-products, liquid, whey, hay, silage, pasture, and other forage; and (ii) other cash expenses, including the cost of hauling, artificial insemination, veterinary services and medicine, bedding and litter, marketing, custom services and supplies, fuel, lubrication, electricity, machinery and building repairs, labor, association fees, and assessments. During the course of the July and August break, I traveled extensively on open house town meetings throughout Pennsylvania. I heard recurrent complaints from the dairy farmers about being unable to maintain the dairy farms. It is a very important matter that the small dairy farmers be able to continue to produce milk, which is a very important item in our daily diets. I don't think I need to expand upon that point. But the dairy farmers are facing enormous problems. We had hoped there would be a dairy compact. There had been one for the New England States. Legislation has been introduced--S. 1157--which is now pending before the Judiciary Committee. And the dairy compact would be of material assistance to farmers generally but certainly farmers in Pennsylvania. We had many Senators supporting the dairy compact concept but have had contentious battles on the Senate floor. And while the proposed legislation on the dairy compact was pending, I do propose the legislation to which I refer, and I send that amendment to the desk.

Mr. SPECTER

Mr. SPECTER. Mr. President, I had sought recognition initially to discuss two other subjects. While the issue of Iraq is very much on the minds of the American people and the focus of attention worldwide, there are other important considerations which are pending and are of interest to Pennsylvanians and what is happening with the economy. We really cannot let our attention focus solely on Iraq. There are many matters which involve important economic issues and great numbers of jobs. That is a subject that is very much on my mind with respect to the Pennsylvania dairy farmers. I propose to introduce legislation this afternoon on that subject. Agriculture is the largest industry in Pennsylvania, and dairy is its single largest component. Pennsylvania is the fourth largest dairy producer in the Nation. We have approximately 10,300 dairy farms which produce $1.710 billion worth of milk each year. Regrettably, over the past decades, Pennsylvania has lost an average of 300 to 500 dairy farmers per year. In the years 1993 to 1998, Pennsylvania lost more than 11 percent of its dairy farmers. That is because Pennsylvania farmers have had to deal with drought and other natural disasters, high feed and transportation costs, and other variables that challenge their ability to sustain their farms, but mostly because the cost of production exceeds what has been the average price for class 3 dairy products. It varies tremendously. It was $15.90 in September of last year. It went down to $9.92 in September of this year. The cost has been tremendous. Meanwhile, the average cost of production of milk in Pennsylvania per hundredweight is calculated by the Pennsylvania Department of Agriculture. The average was $14.32 in the year 2001. The price for milk in January of 2002 was $11.87 per hundredweight, going down to $10.82 per hundredweight in May, and $9.54 per hundredweight in August of this year. The cost of production exceeds what the Pennsylvania dairy farmers are able to obtain for their milk. I serve on the Agriculture Subcommittee of Appropriations. On May 14 of last year at an extensive hearing in Philadelphia, we heard from economists, we heard from farmers, and an analysis for merchants and an analysis of what was happening on dairy farming. It is a complex matter. While the price of milk goes down for dairy farmers, the cost of milk goes up to the consumer. I know at the shop where I buy a half-gallon of milk, it was $1.89, and it jumped to $2.19 for a half-gallon of milk at the precise time when the payments made to the dairy farmers were going down. It seems to me there really has to be an additional factor in the calculation of these prices by the U.S. Department of Agriculture. It is for that reason that I am proposing legislation today which would amend section 8(c)(5) of the Agriculture Adjustment Act with amendments by the Agriculture Marketing Agreement Act of 1937 to add the following: Subsection M, using as factors to determine the basic formula price for milk under an order issued pursuant to this section (i) the price of feed grains, including the cost of concentrates, by-products, liquid, whey, hay, silage, pasture, and other forage; and (ii) other cash expenses, including the cost of hauling, artificial insemination, veterinary services and medicine, bedding and litter, marketing, custom services and supplies, fuel, lubrication, electricity, machinery and building repairs, labor, association fees, and assessments. During the course of the July and August break, I traveled extensively on open house town meetings throughout Pennsylvania. I heard recurrent complaints from the dairy farmers about being unable to maintain the dairy farms. It is a very important matter that the small dairy farmers be able to continue to produce milk, which is a very important item in our daily diets. I don't think I need to expand upon that point. But the dairy farmers are facing enormous problems. We had hoped there would be a dairy compact. There had been one for the New England States. Legislation has been introduced--S. 1157--which is now pending before the Judiciary Committee. And the dairy compact would be of material assistance to farmers generally but certainly farmers in Pennsylvania. We had many Senators supporting the dairy compact concept but have had contentious battles on the Senate floor. And while the proposed legislation on the dairy compact was pending, I do propose the legislation to which I refer, and I send that amendment to the desk.

Mr. SPECTER

Mr. SPECTER. Mr. President, on behalf of the leader, Senator Lott, I have been asked to lodge a formal objection to the unanimous consent request. I know the Senator from Nevada had expected that. I want it plain that I express none of my own views on the pending legislation in lodging this formal objection. I am the last Republican available to represent the leader, who has asked that a formal objection be lodged on behalf of other Members.

Mr. SPECTER

Mr. SPECTER. I yield the floor. Exhibit 1 Wilmer, Cutler & Pickering, Washington, DC, June 24, 2002. Hon. Patrick J. Leahy, Chairman, Committee on the Judiciary, U.S. Senate, Dirksen Senate Office Building, Washington, DC. Dear Chairman Leahy: We write to express our concern about your recent request that the Department of Justice turn over ``appeal recommendations, certiorari recommendations, and amicus recommendations'' that Miguel Estrada worked on while in the Office of the Solicitor General. As former heads of the Office of the Solicitor General-- under Presidents of both parties--we can attest to the vital importance of candor and confidentiality in the Solicitor General's decisionmaking process. The Solicitor General is charged with the weighty responsibility of deciding whether to appeal adverse decisions in cases where the United States is a party, whether to seek Supreme Court review and adverse appellate decisions, and whether to participate as amicus curiae in other high-profile cases that implicate an important federal interest. The Solicitor General has the responsibility of representing the interests not just of the Justice Department, nor just of the Executive Branch, but of the entire federal government, including Congress. It goes without saying that, when we made these other critical decisions, we relied on frank, honest, and thorough advice from our staff attorneys, like Mr. Estrada. Our decisionmaking process required the unbridled, open exchange of ideas--an exchange that simply cannot take place if attorneys have reasons to fear that their private recommendations are not private at all, but vulnerable to public disclosure. Attorneys inevitably will hesitate before giving their honest, independent analysis if their opinions are not safeguarded from future disclosure. High-level decisionmaking requires candor, and candor in turn requires confidentiality. Any attempt to intrude into the Office's highly privileged deliberations would come at the cost of the Solicitor General's ability to defend vigorously the United States' litigation interests--a cost that also would be borne by Congress itself. Although we profoundly respect the Senate's duty to evaluate Mr. Estrada's fitness for the federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the process. Sincerely, Seth P. Waxman. Walter Dellinger. Drew S. Days, III. Kenneth W. Starr. Charles Fried. Robert H. Bork. Archibald Cox. Exhibit 2 S. Res. ____ Whereas there has been a continuing controversy with the political party of the President protesting the process on confirmation of Federal judges by the Senate when the Senate is controlled by the opposite political party; and Whereas there is a concern about a lack of public confidence in the Senate's judicial confirmation process when different parties control the White House and the Senate: Now, therefore, be it Resolved,

Mr. SPECTER. Mr. Estrada was questioned about an article which appeared in The Nation, which referred to anonymous sources on the subject that Mr. Estrada was questioning prospective clerks for Justice Kennedy and was applying a litmus test. This is what is set forth in the article in The Nation in the October 7, 2002, issue: Perhaps the most damaging evidence against Estrada comes from two lawyers he interviewed for Supreme Court clerkships. Both were unwilling to be identified by name for fear of reprisals. The first told me: ``Since I knew Miguel, I went to him to help me get a Supreme Court clerkship. I knew he was screening candidates for Justice Kennedy. Miguel told me, `No way. You're way too liberal.' I felt he was definitely submitting me to an ideological litmus test, and I am a moderate Democrat. . . .'' A second unnamed person in the article said: ``I was a clerk for an appeals court judge,'' the professor told me, ``and my judge called Justice Kennedy recommending me for a clerkship with him. Justice Kennedy then called me and said I had made the first cut and would soon be called for an interview. I was then interviewed by Miguel Estrada and another lawyer. Estrada asked most of the questions. He asked me a lot of unfair, ideological questions, a lot about the death penalty, which I told him I thought was immoral. I felt I was being subjected to an ideological litmus test. . . .'' And it goes on, but that is the pertinent part. During the course of the Judiciary Committee hearings, Mr. Estrada was questioned about these two unidentified sources. He said he had not asked such questions, and then later responded to further questions saying that he couldn't remember if it had ever happened, that it might have been possible but he had no recollection. His answer was: Now, that you have drawn that to my attention, it is possible that interviewing a candidate--I can't think of any now, but it is possible that I may have come to the conclusion that the person's ideology was so strongly engaged in what he thought as a lawyer that he would not be able to follow the instructions in the chambers as set forth by Justice Kennedy. Then, when the questions are pursued, Mr. Estrada says candidly he can't remember ever having said that but would not rule out the possibility. It seems to me that when someone is being questioned, and being questioned from sources which refuse to reveal their identify, that it is impossible for a witness, a nominee for a judgeship, to give a responsive answer. One of the very basic principles of American jurisprudence is that an individual is entitled to confront his accuser. That is a basic constitutional requirement, of course, in a different context in the fifth amendment of right to confrontation. But as a matter of basic fairness anywhere, if a person is to have an opportunity to focus on a question, to focus on the event, he or she should be told who it was who made the statement, so there can be an appropriate focus of attention. And a prospective nominee ought not to be ruled out, ought not to be criticized, or ought not have it held against him if people are challenging him who will not be disclosed. And the article in The Nation magazine says specifically it came from two lawyers, both unwilling to be identified by name for fear of reprisals. It is a little hard to see what the reprisals would be. If somebody has something to say about a judicial nominee, let him come forward. If they are not going to be identified, how can you expect a responsive answer to be given by an individual, which is apparent on its face, as Mr. Estrada tries to respond to these questions without knowing precisely what they are? Other issues were raised as to Mr. Estrada because of clients he represented and causes he undertook. I regrettably could not be present for all of the Estrada hearings because we were debating homeland security on the day his hearing was up, and I was there for part of it but not there for all of it. It was reported to me that Mr. Estrada was questioned about comments which he had made in representing a client, trying to have the case of Miranda v. Arizona overruled, a 1966 decision where the Supreme Court laid down certain requirements for warnings and waivers. The Omnibus Crime Control Act of 1968, passed by the Congress, sought to change the Miranda rule by providing that the confession be judged on the totality of the circumstances. An act of Congress is presumptively constitutional, and it was a matter for argument. The Supreme Court considered the issue and decided that Miranda would not be overruled, considered it, many years later. Shortly after the Omnibus Crime Control Act was passed in 1968, I was asked by the National District Attorneys Association to argue a case captioned Frasier v. Cupp where there was a confession at issue under Escobedo. I appeared in the Supreme Court and argued that the confession which was given, the statements which were given should be judged under the 1968 Omnibus Crime Control Act which said voluntariness should be decided on the basis of the totality of circumstances. In a State prosecution, the due process clause picks up the right to counsel of the sixth amendment and the privilege against self- incrimination of the fifth amendment. The argument which I made was there ought not to be a higher standard imposed on the States under the due process clause than on the Federal Government. Under the 1968 statute gauging the admissibility on the totality of the circumstance, the act was presumptively constitutional. The Supreme Court did not reach the issue in deciding the case of Cupp v. Oregon where the confession was upheld. But I had appeared before a congressional committee, the McClellen committee, in 1966 and said I agreed with Miranda and that I thought as a matter of public policy Miranda was the correct decision. I said that not withstanding the fact that I was a district attorney at that time and had to deal with the limiting effects. It seemed to me it placed the suspect on an equal par with the interrogators for them to be required to say you have a right to counsel, you have a right to remain silent. But notwithstanding my own personal view that Miranda was the correct decision, I felt entirely free to argue to the Supreme Court the position that the 1968 act ought to govern, and the totality of the circumstances ought to prevail. This is just one of what I understood to be a number of concerns expressed by some members of the Judiciary Committee. I think there ought to be a sharp distinction between what an individual believes as a matter of judicial philosophy or ideology and what an individual does by way of presenting a case for argument. Under our adversarial system, all sides are to be presented, both sides are to be presented, and the court is to make the decision. An attorney has the liberty of making arguments which he thinks are good- faith arguments for resolution by the court. It is my hope that the Judiciary Committee will report out Mr. Estrada. Frankly, it looks as if they are not going to do so. The reason, really, the excuse will be given that the Solicitor General's opinions will not be forthcoming. But they realistically cannot be forthcoming for reasons set forth by the Solicitor General's letter that if they are to be able to have honest and frank discussions, they have to have the honest opinions of their lawyers. And if you are going to make public disclosure in the context of a judicial confirmation proceeding, the lawyers are always going to be worried about that and are not going to give their frank opinions. Ultimately, I hope we are able to adopt a protocol. Perhaps the year 2004 would be a good time. We have a Republican President now and a Senate controlled by Democrats and nominations were being held up. I am candid to say and have said, when we had a President who was a Democrat and the Judiciary Committee was controlled by Republicans, that nominations were held up. I crossed party lines and voted for President Clinton's nominees when I thought they were qualified. In the spirit of reciprocity, I have been able to get Pennsylvania judges confirmed. But perhaps in the year 2004, when no one knows exactly what 2005 will bring, we can end this politicization of the Judiciary Committee process and adopt a protocol which I have submitted but which would say that after so many days after a nomination, the committee would consider it with a hearing; so many days after the hearing, the committee would vote; and so many days later, it would come to the floor. We could get rid once and for all of this politicization of the nomination process. I ask unanimous consent that the text of my resolution of protocol be printed in the Record at the conclusion of my remarks.

Mr. SPECTER. Mr. President, during the course of the hearings on Mr. Estrada, the issue was raised about obtaining memoranda which Mr. Estrada had worked on in the Solicitor General's office from 1992 to 1997, internal memoranda which would be very troublesome for disclosure because of the need for candid expressions by lawyers who work in the Solicitor General's office. A letter, dated, June 24, 2002, was submitted by a former Solicitor General, Seth P. Waxman, on behalf of all seven living ex-Solicitors General, objecting to the request by the Judiciary Committee for these internal memoranda, signed by Mr. Waxman, on behalf of Walter Dellinger; Drew S. Days, III; Kenneth W. Starr; Charles Fried; Robert H. Bork; and Archibald Cox. It is apparent, on the face of those signatories, that you have people from a broad spectrum, from very liberal to very conservative. But of more importance than the range of Solicitors General on the political spectrum are the reasons set forth in the letter. And the essence is contained in a couple of paragraphs: As former heads of the Office of the Solicitor General-- under Presidents of both parties--we can attest to the vital importance of candor and confidentiality in the Solicitor General's decision-making process. Then, in a later paragraph, it continues: It goes without saying that, when we made these and other critical decisions, we relied on frank, honest, and thorough advice from our staff attorneys, like Mr. Estrada. Our decision-making process required the unbridled, open exchange of ideas--an exchange that simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure. Attorneys inevitably will hesitate before giving their honest, independent analysis if their opinions are not safeguarded from future disclosure. High-level decision-making requires candor, and candor in turn requires confidentiality. Mr. President, I ask unanimous consent that the full text of this letter be printed at the conclusion of my statement. That will abbreviate the time of the statement.

Mr. SPECTER. Mr. President, I now will comment on the pending nomination of a very distinguished lawyer to the Court of Appeals for the District of Columbia Circuit, Miguel A. Estrada, who has been nominated by President Bush for the Court of Appeals for the District of Columbia Circuit. Mr. Estrada has an extraordinary background. He received his law degree from Harvard, magna cum laude, in 1986. He received his bachelor's degree, magna cum laude, from Columbia College. Mr. President, I ask unanimous consent to have printed in the Record his employment record, which shows the very outstanding work he has done.

Mr. SPECTER

Mr. SPECTER. I thank the Chair. (The remarks of Mr. Specter pertaining to the introduction of S. 3068 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. SPECTER. Mr. President, I thank my colleague from Virginia for those comments. We form a long-time mutual admiration society. The Senator from Virginia was elected in 1978, and I was elected 2 years later. So he has been here finishing up his 24th year, and I, 22. We have worked together on many matters. I am raising questions only because I think it is in the tradition of what they call the world's greatest deliberative body. I am not sure that is accurate. But when we face an issue of this sort, we ought to be considering it very carefully. That is what I intended to do with this very brief colloquy today along that line.

Mr. SPECTER. Mr. President, without going through the entire litany, I agree that those are all illustrations of anticipatory self-defense. The Afghanistan missile attack on August 20 of 1998 was in response to al-Qaida because of the destruction of our embassies in Africa at about that time. I don't think you could call the Grenada incident a matter of anticipatory self-defense. I don't think you can call it self- defense at all. I think what the Senator from Virginia referred to is not a case of anticipatory self-defense--action by the United States, but not anticipatory self-defense. The quarantine of Cuba, as I said before, certainly does qualify, but under very different circumstances. But I thank my colleague from Virginia. During the course of the coming days, I think we are going to have very extended discussions on these issues as we debate this resolution.

Mr. SPECTER. Mr. President, the citation by the Senator from Virginia is a very impressive one, beyond any question, that some might think there was some difference in circumstances between the imminence of a possible attack in 1962, with the so-called Cuban missile crisis, compared to the present time with respect to Iraq. I would be interested to know what the Senator from Virginia was doing at that time. I can tell the Senator from Virginia that was the one occasion where my wife and I went out to the supermarkets and stocked up on food, as did most Americans, and put them in the basement of our house. The television was replete with maps showing the missile range from Cuba to Philadelphia--the ones I particularly noted. They passed by Virginia en route to Philadelphia. I quite agree with the Senator from Virginia, we ought never subordinate our sovereignty when we face that kind of a threat. But I think the threat is significantly different with respect to Iraq--although I concede the threat. But the point is missed, at least somewhat, and that is whether U.S. unilateral action could set a precedent for some other country taking unilateral action, such as the ones to which I referred.

Mr. SPECTER. Earlier today I had discussed the considerations on conditioning authority for the President to use force on a United Nations resolution which called for the use of force, very much like the 1991 incident, contrasted with authorization by the Congress for the President to use force unilaterally, without a United Nations resolution, or perhaps with the assistance of Great Britain. The disadvantage, to which I had referred earlier today, on having a resolution which required U.N. action is that, in effect, we would be subordinate or subject to a veto by China, which is undesirable; France--undesirable; Russia--undesirable. But the difficulty with authorizing the President to use force unilaterally is it might set a precedent for other countries to say they could do the same. While these analogies are not perfect, one which comes to mind is China on Taiwan, or India on Pakistan, or the reverse--Pakistan on India. My question to one of the managers of the bill, one of the coauthors of the bill, is: Do you see any problem at all on a precedent being established if Congress authorizes the President to use force without a U.N. resolution to use force, on justifying some action by some other country like China and Taiwan, or Pakistan and India, or some other situation in the future?

Mr. SPECTER. Mr. President, while the Senator from Virginia is still on the floor, I wonder if he would be willing to have a brief discussion on the resolution and the action before the United Nations?

Mr. SPECTER

Mr. SPECTER. Madam President, I thank my distinguished colleague from West Virginia for his response. I have raised quite a number of questions in the presentation I have made today. I am prepared to honor the President's request that we vote on this matter before we adjourn, but I think we ought to take the time to debate that need. There are a great many questions to be answered. I look forward to having more of our colleagues on the floor. We were scheduled to go to this resolution at 1 p.m. today, and it is now 1:23. These issues about where the inspections are going to lead are important. These questions about the ramifications of acting alone are important. We do not want to repeat the mistakes of not going after bin Laden, as we had good cause to prior to 9/11. We accused the generals of always fighting the last war. We have learned a bitter lesson from September 11, and we had cause to act in advance. We have to ask all this. There is another issue I mention briefly before concluding, and that is the difference in language between the 1991 resolution, which says the President is authorized to use the Armed Forces in order to achieve the implementation of Security Council resolutions, and contrast it with the language of the two resolutions which are now pending, the resolution introduced by Senator Lieberman and another resolution introduced by Senators Daschle and Lott which say the President is authorized to use all means he determines to be appropriate. ``All means that the President deems to be appropriate'' is a subjective standard, which is different from the authority which the Congress gave President Bush in 1991, saying the President is authorized to use the U.S. Armed Forces in order to achieve implementation of Security Council resolutions, which we call in the law ``objective standard'' as opposed to subjective standard. When we have other Senators on the floor, I will look for an opportunity to discuss this and to have a clarification as to what is meant here. I thank the Chair. I thank my colleague from West Virginia. 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 Kuwaiti 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 Resolution 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 Resolution 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 Norman Schwarzkopf and others have labeled Saddam Hussein a war criminal and called for his indictment; and 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: Now, therefore, be it 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 official 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 seek 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, one other issue is of concern to me, and that is the question of delegation of congressional authority to the President. The constitutional mandate--and I spoke to this subject last Thursday and will not repeat a good bit of what I said--but the doctrine of separation of powers precludes the Congress from delegating its core constitutional authority to the executive branch. I had occasion to study that subject in some detail on the question of the delegation of congressional authority on base-closing commissions. There is a substantial body of authority on the limitations of the delegation of congressional authority. In an extensive treatise by Professor Francis Wormuth, professor of political science at the University of Utah, and Professor Edwin Firmage, professor of law at the University of Utah, the historical doctrines were reviewed leading to a conclusion that the Congress may not delegate the authority to engage in war. If we authorize the President to use whatever force is necessary, that contemplates future action. While no one is going to go to court to challenge the President's authority, that is of some concern, at least to this Senator. I discount the argument of those who say that regime change of Saddam Hussein is motivated by the failure to finish the job in 1991 or Saddam's efforts to assassinate President Bush, the elder. While it is true that Vice President Cheney and Secretary of State Powell were principal participants as Secretary of Defense and as Chairman of the Joint Chiefs of Staff on the decision not to march to Baghdad in 1991, their experience benefits the United States in this current situation. I further discount the argument that President George W. Bush seeks to correct any mistakes of his father or that it is a personal matter, as some have argued, from his comment: The guy tried to kill my dad. I am not unaware of the psychologist's contentions that motives are frequently mixed and hard to sort out, but I do think our Nation is fortunate to have the leadership of President Bush, Vice President Cheney, and Secretary Powell at this perilous time. I have been briefed by administration officials on a number of occasions, and I am looking forward to another briefing tomorrow by National Security Adviser Condoleezza Rice and CIA Director George Tenet. There is substantial information about the weapons of mass destruction which Saddam Hussein has available, but I am interested in knowing with greater precision, to the extent that the administration can release it, the situation with regard to Saddam's efforts to develop nuclear weapons. In evaluating the time when preemptive action may be used, Secretary of State Daniel Webster, in dealing with the so-called Caroline incident, in 1837, when British troops attacked and sank an American ship, then-Secretary of State Webster made a point that an intrusion into the territory of another State can be justified as an act of self- defense only in those: Cases in which the necessity of that self-defense is instant, overwhelming and leaves no choice of means and no moment of deliberation. It is very relevant, on an evaluation of meeting that goal, as to just where Iraq stands on the weapons of mass destruction. In previous briefings, I have sought the administration plan as to what will be done after Saddam Hussein is toppled, and I think that is an area where a great deal more thought needs to be given. The situation in Iraq would obviously be contentious, with disputes between the Sunnis and the Shi'ites, with the interests of the Kurds in an independent state, and it means a very long-term commitment by the United States. We know the problems we have in Afghanistan. Iraq has to defray some of the costs, but what happens after Saddam Hussein is toppled has yet to be answered in real detail. On the issue of a battle plan, perhaps that is too much for the administration to tell the Congress, but as a Senator representing 12 million Pennsylvanians, in a country of 280 million Americans, I think we ought to have some idea as to how we are going to proceed and what the casualties may be. All of this is to say there are many questions and many issues to be considered. The predictions are numerous that the Congress of the United States will pass a resolution authorizing the use of force by an overwhelming majority. I am not prepared to disagree with that. And on a proper showing of the imminence of problems with Saddam Hussein and on a proper showing that this is the last recourse, my vote may well be cast with the administration as well. But I am interested in hearing debate on the floor of the Senate as to the relative merits of requiring U.N. multilateral action as a condition for the use of force, contrasted with U.S. unilateral action. If we require U.N. multilateral action, we do subject ourselves to the veto of France, China, and Russia, which is undesirable. If we authorize the use of force unilaterally by the President, then we may well be setting a precedent which could come back to haunt us with nations such as China going after Taiwan or a nation such as India or Pakistan going after the other. I look forward to the additional briefing tomorrow, and I look forward to the debate which we will be having on the Senate floor on these very important issues. I note that the distinguished President pro tempore has come to the floor. While this is not prearranged and I have not given him any warning--although I do not think Senator Byrd needs any warning on constitutional issues--I would be interested in the views of the Senator from West Virginia, if he cares to give them, on this issue of delegation of authority. Earlier in my presentation, as I said last Thursday, I talked about this issue and referred to the treatise by Professors Wormuth and Firmage of the University of Utah where in a chapter devoted to the delegation of the war power the professors say: That Congress may not transfer to the executive . . . functions for which Congress itself has been made responsible. Of course, the power to declare war is a core congressional responsibility. Chief Justice Marshall said--and I am leaving out some of the irrelevant parts--it will not be contended Congress can delegate powers which are exclusively legislative. And Hamilton argued in the Federalist to the effect that it is impossible for Congress to enact governing standards for launching future wars and, thus, spoke about the impermissibility of delegating the power to declare war. The treatise notes the prohibition against the delegation of such power: To initiate a war in a future international environment in which significant details, perhaps even major outlines, change from month to month or even from day to day. The posture of international affairs of the future cannot be known to Congress at the time the resolution is passed. According to Henry Clay, a great Senator, the Constitution requires that Congress itself appraise the immediate circumstances before the Nation voluntarily enters into a state of war. Clay's argument went beyond that. He argued that: Congress itself cannot make a declaration of a future war dependent upon the occurrence of stipulated facts, because war is an enterprise in which all the contemporary circumstances must be weighed. If we adopt the resolution, we will be saying that the President has the authority to use force, and that will be a decision which the President will make in futuro--some time in the future. I am interested in the views of my distinguished colleague from West Virginia as to whether that is an unconstitutional or constitutional delegation of Congress' authority to declare war.

Mr. SPECTER

Mr. SPECTER. Herein, there is a very ample statement for the basis for trying Saddam Hussein and trying him successfully as a war criminal. In doing that, we would be following the precedent of trying former Yugoslavian President Milosevic as a war criminal. I have made some seven visits to The Hague and have participated in marshaling U.S. resources from the Department of Justice, also specifically from the FBI, also from the CIA during the 104th Congress back in 1995 and 1996, when I was chairman of the Intelligence Committee; and we now see the head of state, Slobodan Milosevic, on trial. We had the experience of the war crimes tribunal in Rwanda, which achieved an international precedent in convicting former Prime Minister Jean Kambanda of Rwanda, the first head of state to be convicted. He is now serving a life sentence. So it is my suggestion that the objective of regime change can be accomplished in accordance with existing international standards, on a multilateral basis, without having other nations in the world saying the superpower United States is trying to throw its weight around. It might take a little longer, but as is evidenced from the proceedings in Rwanda as to the former Prime Minister of Rwanda, and as evidenced from the proceedings of Milosevic, that is an ordinary successful progress of the law. The most difficult issue pending on the resolutions as to the use of force on Iraq, the most difficult issue, in my opinion, is the question of whether the United Nations authorizes the use of force. I commend the President for his efforts to organize an international coalition. President George Herbert Walker Bush did organize an international coalition in 1991, and prosecuted the war against Iraq with great success, enlisting the aid of the Arab nations, including Egypt, Syria, and other countries. That is the preferable way to proceed, if it can be accomplished. The obvious difficulty in conditioning the President's authority to use force on a United Nations resolution is the United States would be subjecting itself to the veto by either China, or Russia, or even France, and we prize our sovereignty very highly--justifiably so. The conundrum, then, is whether we will get that kind of an international coalition that would have the weight of world public opinion, would have the weight of the U.N. behind them. The difficulties of having the United States act alone would be the precedent that would be set. It could be a reference point for China, for example, looking at Taiwan, where China has made many bellicose warlike statements as to its disagreements with Taiwan. If the United States can act unilaterally, or without United Nations sanction, there would be a potential argument for a country like China proceeding as to Taiwan. There would be a potential argument for a nation like India proceeding as to Pakistan, or vice versa, Pakistan proceeding as to India, which could be a nuclear incident. Both of those countries have nuclear power. This is a question I believe has to be debated on the floor of the U.S. Senate. I have not made up my mind as to whether it is preferable to condition the use of force on a United Nations resolution, and I am cognizant of the difficulties of giving up sovereignty and being subject to the veto of China, which I don't like at all, or being subject to the veto of Russia, which I don't like at all, or being subject to the veto of France, again something I do not like. But I think we have to recognize when we are authorizing the use of force, and if the President takes the authorization and is not successful going to the U.N. to get a coalition, we will be establishing a precedent that may have ramifications far into the future, at some point in time when the United States may not be the superpower significantly in control of the destiny of the world with our great military power. I am glad to see the President is moving ahead with an effort to get inspections in the United Nations, and Secretary of State Powell met last Friday with the U.N. inspection chief, who agreed there ought to be broader authority for the U.N. inspection than that which was in place in 1998 when Iraq ousted the U.N. inspectors. Hans Blix supported the position the United States has taken. Yesterday, on a Sunday talk show, the Iraqi Ambassador to the U.N. made a comment to the effect there was no huge problem on having U.N. inspectors come, even to the Presidential compounds. That is probably a typical Iraqi statement: holding out an offer one day and revoking it the next. I do believe it is important that we exhaust every possible alternative before resorting to the use of our armed forces, and to have the inspectors go back into Iraq is obviously desirable. We must have the inspectors, though, go into Iraq in a context where there are no holds barred. In August, Senator Shelby and I visited the Sudan. The Sudan is now interested in becoming friendly with the United States. Our former colleague, Senator Jack Danforth, has brokered the basic peace treaty which still has to be implemented in many respects. But as a part of the new Sudanese approach, the Government of Sudan has allowed U.S. intelligence personnel to go to Sudanese factories, munitions plants, and laboratories with no announcement or minimal announcement of just an hour, break locks, go in, and conduct inspections. That would be a good model for the inspection of Iraq. If, in fact, the Iraqis will allow unfettered, unlimited inspections, it is conceivable that would solve the problem with respect to the issue of weapons of mass destruction. Certainly that ought to be pursued to the maximum extent possible. If, and/or when the Iraqis oust the U.N. inspectors or limit the U.N. inspectors, raising again the unmistakable inference that Saddam Hussein has something to hide, then I think there is more reason to resort to force as a last alternative and, in that context, a better chance to get other countries, perhaps countries even in the Arab world, to be supportive of the use of force against Iraq at the present time as they were in the gulf war in 1991. Extensive consideration has to be given, in my judgment, to the impact on the Arab world. Egyptian President Mubarak has been emphatic in his concern as to what the impact will be there. So we ought to make every effort we can to enlist the aid of as many of the nations in the Arab world as possible. If Saddam Hussein rebuffs the United Nations, again raising the unmistakable inference that he has something to hide, then I think the chances of getting additional allies there would be improved. With respect to the situation with Israel, there is, again, grave concern that a war with Iraq will result in Scud missiles being directed toward Israel. Some 39 of those Scud missiles were directed toward Israel during the gulf war. Their missile defense system was not very good. Now we know that Israel has the Arrow system, but still all of Israel is not protected. The Arrow system has not been adequately tested. In the gulf war in 1991, the Israeli Prime Minister Yitzhak Shamir honored the request of President Bush not to retaliate. It is a different situation at the present time with Israeli Prime Minister Sharon having announced if Israel is attacked, Israel will not sit back again. When former National Security Adviser Brent Scowcroft published a very erudite op-ed piece in the Wall Street Journal in August, he raised the grave concern that with Israeli nuclear power, there could be an Armageddon in the Mideast. Former National Security Adviser Brent Scowcroft was advising caution; that we ought not proceed without exhausting every other alternative. A similar position was taken by former Secretary of State James Baker in an op-ed piece, again in August, in the New York Times urging that inspections be pursued as a way of possibly avoiding a war.

Mr. SPECTER. Mr. President, I have sought recognition, as noted, to discuss the pending resolution. At the outset, I commend the President for coming to Congress. Originally the position had been articulated by the White House that congressional authority was not necessary. The President, as Commander in Chief, has the authority under the Constitution to act in cases of emergency. But if there is time for discussion, deliberation, and debate, then in my view it is a matter for the Congress. Senator Harkin and I introduced a resolution on July 18 of this year calling for the President to come to Congress before using military force. When the President made his State of the Union speech and identified the axis of evil as Iran, Iraq, and North Korea, followed by the testimony of Secretary of State Powell that there was no intention to go to war against either North Korea or Iran, it left the obvious inference that war might be in the offing as to Iraq. I spoke extensively on the subject back on February 13, 2002, raising a number of issues: What was the extent of Saddam Hussein's control over weapons of mass destruction? What would it cost by way of casualties to topple Saddam Hussein? What would be the consequence in Iraq? Who would govern after Saddam was toppled? What would happen in the region, the impact on the Arab world, and the impact on Israel? I believe it is vastly preferable on our resolution to focus on the question of weapons of mass destruction as opposed to the issue of regime change. When we talk about regime change, there is a sense in many other nations that the United States is seeking to exert its will on another sovereign nation. Much as Saddam Hussein deserves to be toppled, when we move away from the focus of containing weapons of mass destruction, it is my view we lose a great deal of our moral authority. There is no doubt Saddam Hussein has been ruthless in the use of weapons of mass destruction with the use of chemicals on his own people, the Kurds, and in the Iran-Iraq war. There is very substantial evidence Saddam Hussein has storehouses of biological weapons, and there is significant evidence he is moving as fast as he can toward nuclear weapons. So when we talk about self-defense, when we talk about ridding the world of the scourge, that is a very high moral ground. When we talk about regime change, it raises the concern of many leaders of many nations as to who is next--maybe they are next. I suggest it is possible to achieve regime change in a way superior to articulating or planning an attack with the view to toppling Saddam Hussein. I believe the way to achieve regime change, consistent with international principles, is to try Saddam Hussein as a war criminal. I introduced a resolution on March 2, 1998, which was passed by the U.S. Senate on March 13, 1998, calling for the creation of a military tribunal, similar to the war crimes tribunal at The Hague, similar to the war crimes tribunal in Rwanda, so that Saddam Hussein could be tried as a war criminal. There is no doubt on the evidence available that Saddam Hussein has committed war crimes. Without going into all of the details set forth in the resolution, I ask unanimous consent that it be printed at the conclusion of my remarks.

Mr. SPECTER

Mr. SPECTER. May I seek a point of clarification. This Senator has 30 minutes starting at 12:50?

Mr. SPECTER

Mr. SPECTER. Mr. President, yesterday in what is called wrap-up in the Senate, by unanimous consent a Pennsylvania judge was confirmed. I had not known that his confirmation was imminent, however, I am very glad it was and I am very glad it was accomplished. I thank the managers, including the Senator from Nevada. I make a comment or two about Judge Gardner who was endorsed by Senator Santorum and me and passed our bipartisan nonpolitical nominating panel. Senator Santorum and I have maintained the practice which Senator Heinz and I had many years ago on submitting applicants to a commission which studies them, in addition to review by the American Bar Association and by the FBI. Judge Gardner graduated magna cum laude from Yale University, received his JD degree from Harvard University Law School, which is obviously an excellent educational background. He then joined a big firm in Philadelphia, Duane, Morris & Heckscher, and later went to Allentown where he became a member of the law firm of Gardner, Gardner, & Racines. He began his career in public service as Solicitor to the Lehigh County Treasury and later served as assistant district attorney in Lehigh County. I must say that being assistant D.A. is very good training for anything. People ask me what is the best job I ever had, being a Senator or district attorney, and I say the best job I ever had was assistant district attorney, getting to the courtroom and trying cases. He has been on the Court of Common Pleas of Lehigh County for some 21 years, presided over 265 jury trials, and written nearly 1,000 legal opinions, 138 of which have been published. He is very active in community affairs. He is on the Board of Directors of the Boys and Girls Club of Allentown and the Allentown Police Athletic League. He has been awarded the Meritorious Service Medal from the President of the United States, and the Pennsylvania Bar Association's Special Achievement Award. We have a practice of trying to accommodate litigants by having various stations in Pennsylvania: one in Johnstown, one in Bethlehem and in Lancaster, and of course we have the district court sitting in Harrisburg, in Wilkes-Barre, Scranton, and also Williamsport. Judge Gardner will be handling the station in Allentown to accommodate litigants so that they do not have to travel long distances to have their cases heard. I yield the floor.

Mr. SPECTER. I ask unanimous consent I may proceed for an additional 5 minutes on an unrelated subject, the confirmation of Judge James Gardner.

Mr. SPECTER. Mr. President, I have sought recognition today to discuss the situation with respect to Iraq. At the outset, I compliment the President for coming to Congress. I believe that, as a matter of constitutional law, the President, as Commander in Chief, has the authority to respond to emergencies, but when there is time for discussion, deliberation, debate, and a decision, then it is the responsibility of the Congress, under the Constitution, to declare war and to take the United States to war. Originally, there had been a contention that the President did not need congressional authorization, but the President has decided to come to Congress, and I compliment him for doing that. I also think that the President has moved wisely in seeking a coalition of the United Nations, as President Bush in 1991 organized a coalition, came to the Congress, and had authorization for the use of force against Iraq which had invaded Kuwait. The assemblage of an international coalition is a very important item. The issue of inspections is one which has to be pursued. To say that Saddam Hussein is a difficult man to deal with, would be a vast understatement. He maneuvered and ousted the inspectors from Iraq some 4 years ago. It seems to me the inspections have to be thorough, total, unannounced, intrusive, going everywhere, however, there cannot be an exclusion for the President's palaces, which are very large tracts of land and could conceal great quantities of weapons of mass destruction. Senator Shelby and I made a trip to the Sudan in August as part of a trip to Africa. In the Sudan, we found that there is an interest on the part of the Sudanese Government in cooperating with the United States, and they have agreed to inspections of their arms factories and their laboratories. They are no-notice inspections, where inspectors go in and break the locks, inspect, and take photographs anywhere, anytime, anyplace. I believe that has to be the format for inspections in Iraq. I am concerned about the timing of an authorization or declaration of war. I think an authorization for the use of force is tantamount or the equivalent to a declaration of war. That authorizes the President to wage war. It is a concern of mine as to whether there is authority for the Congress under the Constitution to make this kind of a delegation. The learned treatise written by Professor Francis D. Wormuth, professor of political science at the University of Utah, and Professor Edwin B. Firmage, professor of law at the University of Utah, engages in a very comprehensive analysis of this issue. The background of the issue is that, when the Constitution and the three branches of Government were formulated, Article I gave certain authority to the Congress. One of the authorities that the Congress has is the authority to declare war. Article II gave authority to the executive branch, to the President, and Article III gave authority to the courts. The core legislative responsibilities, such as a declaration of war, have been viewed as being non-delegable. They cannot be given to someone else. Professors Wormuth and Firmage say at the outset of chapter 13, on the delegation of the war power: That Congress may not transfer to the executive . . . functions for which Congress itself has been made responsible. The treatise further goes on at page 70 to point out--and I am leaving out references which are not directly relevant--but the two professors point out at page 70 that: The Framers . . . never supposed that a state of war could arise except as a result of a contemporaneous decision of Congress on the basis of contemporary known facts. In the Federalist Papers, Hamilton made an observation on this subject, and it is cited again in the treatise by the two professors noting that Hamilton in the Federalist Papers argued the system was safe precisely because the President would never be able to exercise this power, referring to the power to declare war or the power to use force. While not cast specifically in the dialogue of delegation of power, the Federalist tracts, written by Hamilton and cited by Wormuth and Firmage, do argue about the limitations of Federal power. The treatise by Professors Wormuth and Firmage then goes on to cite Chief Justice Marshall, who said--and again I leave out materials which are not directly relevant--it will not be contended Congress can delegate powers which are exclusively legislative. Here you have a power, the power to declare war, which is a core congressional power. Chief Justice Marshall has been the author of many doctrines which have survived 200 years since he served as Chief Justice of the Supreme Court of United States. The treatise by Wormuth and Firmage then goes on to quote Clay, and they cite this reference: According to Clay, the Constitution requires that Congress appraise the immediate circumstances before the Nation voluntarily enters into a state of war. That is at page 207. The treatise further points out, Clay's argument was that: Congress itself cannot make a declaration of a future war dependent upon the occurrence of stipulated facts, because war is an enterprise in which all the contemporary circumstances must be weighed. The treatise by Wormuth and Firmage goes on to point out that it is: Impossible for Congress to enact governing standards for launching future wars. They note it is not possible to authorize the President: To initiate a war in a future international environment in which significant details, perhaps even major outlines, change from month to month or even from day to day. The posture of international affairs of the future cannot be known to Congress at the time the resolution is passed. So we have the generalized declaration that core congressional functions may not be delegated as a basic requirement under the constitutional separation of powers, and then an articulation of the reasons as to why this is the law. That is because, as noted in the authorities, the circumstances may change in a matter of months or, as noted, even in a matter of days. I am not unaware the Congress is proceeding on a timetable which is likely to eventuate a vote next week, or if not next week, shortly thereafter. As is well-known, we are in an election season, with elections on November 5. Today is October 3. The closing date of the Congress had originally been set at October 4, which would have been tomorrow, Friday. It has been extended until October 11. Nobody is sure when we will adjourn. When asked the question as to when the Senate will adjourn, I say the Senate adjourns when the last Senator stops talking. We do not know precisely when that will be. There is a move to have a vote before we leave town. Of course, we could come back. When there is a matter as important as a resolution authorizing the use of force, the equivalent of a declaration of war, there is no congressional responsibility that is weighed more heavily, more solemnly, or more importantly than that. I am not naive enough to think anybody is going to go into court or that a court would consider this, what we lawyers call a justiciable issue, or decide this sort of a matter. I do think it is a matter which ought to be focused on by Members of the Senate and House of Representatives. I have not seen any public commentary on the issue. I became very deeply involved on the legalisms of the doctrine of separation of power 8 years ago when there was a base closing commission where Congress delegated authority to a commission to decide which bases would be closed, and I think they inappropriately closed the Philadelphia Navy Yard. I studied the subject in some detail--in fact, argued the matter in the Supreme Court of the United States--so when this issue has arisen, I have been concerned about what the Congress is doing. I have studied the issue and have raised these concerns, which I want to share with my colleagues. I am well aware of the argument that it would strengthen the President's hand to have a very strong vote from the Congress of the United States, as he is negotiating in the United Nations. Secretary of State Powell is seeking a tougher resolution before inspections start. The U.N. inspectors met with the Iraqi officials and are talking about starting inspections in 2 weeks. Secretary Powell yesterday said he would like a tougher resolution so there are more stringent requirements to be imposed on Iraq before the inspections go forward. There are difficulties in dealing with the French, the Russians, and the Chinese. There is no doubt that a strong resolution by Congress supporting the President would give weight to the President's position. The predictions are generalized that the President can expect a very strong vote from the House of Representatives, based on what happened yesterday with the concurrence of Speaker Hastert and Democrat Leader Gephardt. The sentiments of the Senate may be somewhat different, perhaps a little more deliberative, but the predictions are that a resolution will come from the Senate backing the President as well. I think it is a momentous matter. It is one which we need to consider. We need to consider all of the alternatives short of the use of force. We need to consider whether our objectives can be attained without sending American men and women into battle; without exposing Iraqi civilians to casualties; without undertaking the problems of war--the attendant body bags, collateral damage, and the death of civilians, which is inevitable. We need to find a way to rid Iraq and the world of Saddam Hussein, and have the appropriate assurances that there are not going to be weapons of mass destruction which threaten the United States or our neighbors. There is a very serious concern as to what will happen with neighboring Israel. General Scowcroft, former National Security Council, wrote an article which appeared in the Wall Street Journal in August, raising a concern about an Armageddon, with the possibility of a nuclear conflict if Iraq and Saddam Hussein unleash weapons of mass destruction on Israel, and as to what the retaliation may be. The consequences are very difficult to figure out. If we can find a way to get rid of Saddam Hussein; have the assurances that the world will not be subjected to his maniacal impulses and his irrational tendencies, which includes his use already of chemical weapons in the Iran war and on his own people, the Kurds; if we can find a way to do that short of war, that certainly ought to be our objective. I raise this constitutional issue so that my colleagues may consider it, as well.

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