Arlen Specter

Mr. SPECTER

Mr. SPECTER. I urge my colleagues to vote for his confirmation.

Mr. SPECTER

Mr. SPECTER. I am confident, based on my personal knowledge of Judge Smith and his outstanding record, that he will be a credit to the Court of Appeals for the Third Circuit. I thank my distinguished colleague from Utah and my distinguished colleague from Vermont for permitting me to speak at this time. Exhibit 1 U.S. Court of Appeals for the Third Circuit, Philadelphia, PA, July 15, 2002. Hon. Arlen Specter, Hart Senate Office Building, Washington, DC. Dear Senator Specter: Because the exercise of my responsibility to assure that efficient administration of justice for over 21 million Americans within the Third Judicial Circuit is being seriously impaired by the current impasse in the Senate over judicial nominations, I feel constrained to cry out. A total of eleven--yes eleven--judges within the Third Circuit, whose presence is desperately needed, would, I believe, have been confirmed and entered on duty but for the impasse. Let me begin with the United States Court of Appeals for the Third Circuit. But for the impasse, Judge D. Brooks Smith would now be on my Court, which has three vacancies, two of them of long standing. I have scheduled him to sit in the early Fall, and we need him. We ``borrow'' judges in 45% of our cases, which is too much. But that situation pales in comparison with that of the District Court for the Western District of Pennsylvania. There are five vacant judgeships on that Court; as of September 30, 2002, these judgeships will have been vacant for a total of 161.7 months. If it were not for the impasse, the following judges would likely have entered on duty: Joy Flowers Conti, who I understand has resigned from her law firm partnership, anticipating a July swearing-in-date (and is now without income); David S. Cercone; Terrence F. McVerry; and Arthur J. Schwab. The Western District is in desperate straits. Motions are piling up, and trials are being delayed. Other courts within the Third Circuit are similarly disadvantaged. Two nominees to the Middle District of Pennsylvania are awaiting floor votes: John E. Jones, III and Christopher C. Conner, both nominated to fill vacancies that are well over a year old. Two nominees to the Eastern District of Pennsylvania, one of the busiest courts in the nation, are also being held up: Timothy J. Savage and James Knoll Gardner. We also have problems in New Jersey where we have five vacancies. Stanley R. Chesler and William J. Martini are awaiting floor votes. There are also putative nominees for the other three vacancies: Jose Linares, Freda Wolfson, and Robert Kugler, whose progress is obviously being slowed by the impasse. Their presence is needed there to take up the slack caused by my assignment of Senior Judge Alfred Wolin, who had a full docket, to handle the mega-asbestos bankruptcy cases in Delaware, one of the nation's most important judicial assignments. I have always respected the processes of the United States Senate. I came to the bench from politics, and understand the senatorial prerogatives. I have been tempted to speak out before, yet because of my background, held back. But the current impasse is too much even for me, hence this letter. As a judge of over three decades of experience on the federal bench, I understand the weighing and balancing process, and I believe that it is out of all proportion to the exercise of senatorial prerogative that these eleven nominees (and scores of others) be held up so long. I urge you to press my plea before your colleagues. Sincerely yours, Edward R. Becker.

Mr. SPECTER. Madam President, it is with considerable pride that I urge my colleagues to vote to confirm a very distinguished Federal judge, D. Brooks Smith, now Chief Judge of the Western District of Pennsylvania, whose nomination is now before the Senate for the Court of Appeals for the Third Circuit. Judge Smith comes to this position with an outstanding academic background, having received his bachelor's degree from Franklin and Marshall College in 1973, his law degree from Dickinson Law School, and then engaged in the active practice of law for 8 years before becoming district attorney of Blair County, PA, a populous county whose county seat is Altoona. He then became a judge of the Court of Common Pleas of Blair County in 1984, serving for 4 years until he became a judge for the United States District Court for the Western District of Pennsylvania where he is now the chief judge, and for now almost 14 years has had very distinguished service there. I came to know Judge Smith when he appeared before the bipartisan nominating panel which had been established by Senator Heinz and myself, and I found him very well qualified and have known him on a continuing basis rather well over the course of the past 14 years. I have talked to him on many occasions and met with him on many occasions, discussing problems of the courts administratively, and issues that may come before the Judiciary Committee. He has been an outstanding jurist. Judge Smith enjoys a unique reputation among all of the people who know him. During his confirmation hearings, large groups of people who knew him rallied to his defense and came forward to attest to his erudition, his scholarship, his good character, and his judicial temperament. Certain issues have been raised which had delayed the confirmation. One involved a fishing club in which he was a member, but that club did not practice what is called invidious discrimination because it was a social club only. While in confirmation hearings for the district court, he had said he would resign from the club if they did not change their membership rules. It was later determined in 1992 in an opinion of precedential value that the club did not engage in invidious discrimination, so there was no reason for him to leave the club. An issue arose on a case, where he presided for a relatively brief period of time, as to whether there should have been an earlier recusal. The matter was inquired into, investigated at length by former Gov. Dick Thornburgh and former Attorney General of the United States, and in an elaborate statement, he went through the case in detail and found, as I concluded as well, that the judge had made a timely recusal. Some issues were also raised as to a speech which Judge Smith made on the Violence Against Women Act. He had concluded that there was not Federal jurisdiction for that particular statute. I, frankly, disagreed with him about his conclusion on that, as lawyers are wont to do, even lawyers who become judges or lawyers who become Senators. In fact, the Supreme Court of the United States ultimately agreed with Judge Smith on the point. I mention these issues in passing because I think they are not worth any more comment. The issues were considered at great length by the Judiciary Committee, and in a 12-to-7 vote, the Judiciary Committee recommended Judge Smith's confirmation. As is well known, Judge Smith's nomination came before the Judiciary Committee at a time of considerable controversy involving the timing and the confirmation of nominees submitted by President Bush. Senator Biden, Senator Kohl, and Senator Edwards all voted to confirm Judge Smith in an atmosphere where there was, to say the least, at least some element of partisanship. I only mention those issues. I think they do not bear any more comment than I have given them. When a man such as D. Brooks Smith undertakes public service in a Federal judgeship, I think it ought to be noted that there is a very considerable personal and financial sacrifice. I thank Judge Smith for serving on the Federal bench, and I thank all the Federal judges for serving on the Federal courts which are the pillars of justice and the pillars of our democratic society. Judge Smith has undergone a difficult period in this confirmation process which has taken quite a considerable period of time. I compliment him for his steadfastness and for his determination in staying the course and in working through on this confirmation. There is no doubt of Judge Smith's qualifications--his educational background, temperament, judicial experience, and experience being a district attorney. Judge Smith has a broad range of experience. The Third Circuit is in desperate need of judges. They are in an emergency situation. I ask unanimous consent that a letter from Chief Judge Edward R. Becker be printed in the Record at the conclusion of my remarks.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to speak about the gallant men, nine miners from Somerset County in my State of Pennsylvania, who went through a most extraordinary ordeal--77 hours trapped in a mine. The eyes and ears of the world were on Somerset County, people wondering if it was possible for men in an underground mine shaft, immersed in water reportedly 4 feet to 5 feet high, no food, no communication with the outside world--people wondered whether those men could survive. Almost in a miraculous way, finally, through the extraordinary efforts of Federal, State, and local rescuers, those nine men were rescued at 2:44 a.m. on Sunday, just yesterday. Their ordeal started on Wednesday, July 24, at 9 p.m., and ended on Sunday morning, July 28 at 2:44 a.m. People are in amazement around the world, at their successful rescues. It is very unusual, very odd to say the least, that a small county in western Pennsylvania, more than 50 miles southeast of Pittsburgh, would be the focus of so much international attention. Last September 11, as we all know, a flight crashed into Somerset, one of the four hijacked by terrorists on September 11, the flight widely believed to be headed to this building, the Capitol of the United States. No one can be sure--some have speculated it might have been headed to the White House--but the speculation was that the plane which crashed into the Pentagon was headed to the White House. In any event, Somerset County was the site of an international tragedy less than a year ago. It is more than lightning, but to have lightning, so to speak, strike twice in such a small county in western Pennsylvania is unusual. But this time, instead of tragedy, instead of the loss of lives, these men were rescued. In an era where there is so much bad news around the world, so much difficulty with terrorism around the world, the problems with the Palestinian terrorists against Israel, the grave difficulties between India and Pakistan over Kashmir, the differences and fighting between the North Koreans and South Koreans and all the problems of Africa--and that litany could be the subject of a lengthy conversation--to find a bright spot, find a success, find a rescue, is certainly more than a breath of fresh air for the entire world but especially, of course, for the miners who were involved: Mr. Randy Fogle, Mr. Harry Blaine Mayhugh, Mr. Thomas Foy, Mr. John Unger, Mr. John Phillippi, Mr. Ronald Hileman, Mr. Dennis Hall, Jr., Mr. Robert Pugh, and Mr. Mark Popernack. Representing Pennsylvania, as I have for some 22 years now, I have obviously been intimately connected with the issue of the coal miners, with some 30 billion tons of bituminous in western Pennsylvania and 7 billion tons of anthracite in northeastern Pennsylvania and the mining industries being struggling industries, this industry has taken up a great deal of time--not only of mine, but of the entire Pennsylvania delegation, really beyond the Pennsylvania delegation. I have had occasion to go underground. I must say it is an eerie, desolate feeling to take one of those elevators down about 20 stories and then hunch over, in the miner's gear with a little light on your cap, and lean backwards in a rail car which moves several miles underground because you can't sit up straight, there isn't sufficient room. I have marveled at the courage and the tenacity of the miners who go into those deep mines, day after day after day, risking life and limb. There was a time not too long ago when a thousand miners a year were killed there. Fortunately, with mine safety, that situation has improved materially, but it is still a very risky line of work. I got through today to Mr. Ron Hileman who lives in Gray, PA, and talked to him about his experiences. As you might imagine, he is a real hero. When I said to Mr. Hileman that he was a hero, he dissented, but that is the way heroes are. They do not acknowledge being heroes. We talked about being in that enclosed area with 60 million gallons of water pouring in. A miner of 27 years with a wife and two children, of course, the joy in the Hileman family was overwhelming. Mr. Hileman expressed his own very deep gratitude. I asked him what had happened. I asked him if the maps might have foretold the problem. He said no because the maps did the best they could. But when other miners came in adjacent, as Mr. Hileman put it, some of the miners would snatch a little extra coal--go a little extra distance and go beyond the line which they had and into another area. Then, when the miners went down there last week, they ran into an old mine shaft. The old mine shaft had caused the enormous problem with the flooding. I want to pay tribute to Pennsylvania's Governor, Mark Schweicker, an international figure, a hero in his own right--and for good cause--on the job, persevering, leading Federal, State, and local officials, meeting with the families. I talked to him over the weekend and he was there, on the job, and certainly deserves the commendation, not only of Pennsylvania but the commendation of the Nation, the commendation of the world. This accident points up the need for greater concern for miners' safety as they are performing very important work, providing energy, providing coal, providing a resource in our effort to try to free ourselves from the dominance of OPEC oil. With progress in clean coal technology, as I have said on this floor on many occasions, the coal industry across America, Pennsylvania, West Virginia to Wyoming and beyond, could provide that alternative source of energy. When I look over what we have done on the subcommittee for the Department of Labor appropriations going back to September of 1981, there were efforts to reduce the mine surface inspections from twice a year to once a year. Many of us resisted, and that was stopped. We had a mining hearing August 1991 where there were operators who were tampering with coal mine dust devices. Then there have been efforts made to cut the Mine Safety and Health Administration repeatedly. This body, the U.S. Senate, and Senator Harkin, as ranking member in 1995 when I took over the chairmanship, and now Senator Harkin as chairman, on a bipartisan approach has maintained the safety funding so that where there have been efforts to cut, we have resisted. We maintain the black lung clinics. I believe that this is a good day for the United States and the U.S. Senate to pay tribute to the coal miners of America for what they are doing for the Nation by providing needed energy for domestic purposes and also for national security. Especially thanks for the rescue of the nine mine workers; and we pay tribute to those men and their families and to the heroic rescuers led by Governor Schweiker that brought them to safety. I thank the Chair. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to speak about three nominees from Pennsylvania who have been confirmed by the Senate. It is a very happy day, indeed. We will have a judge to the western district of Pennsylvania and two judges to the middle district of Pennsylvania, both districts being in dire need of assistance. These three individuals were recommended by a bipartisan nominating commission which Senator Santorum and I have established, where there is independent review in each of the districts. These individuals were recommended to Senator Santorum and myself and then, in turn, we recommended them to the President. They have passed the examinations of the American Bar Association with flying colors, the FBI check, the Judiciary Committee hearing, and finally have been voted upon by the Senate. Earlier today, the Senate confirmed Ms. Joy Flowers Conti for the United States District Court for the Western District of Pennsylvania. Ms. Conti brings an outstanding academic record to the bench: Her bachelor of arts degree from Duquesne University in 1970; her law degree also from Duquesne in 1973; summa cum laude, the highest honors; and she was the first woman to serve as editor in chief of the Duquesne Law Journal. She has had an outstanding career in private practice. She has been associated with the distinguished Pittsburgh law firm, Buchanan, Ingersoll, from 1974 until the present time; served as a professor of law at Duquesne from 1976 to 1982; has worked as a judicial officer, hearing examiner for the Commonwealth of Pennsylvania in the Department of State Bureau of Occupational and Professional Affairs. She received a ``well qualified'' rating by the American Bar Association's Standing Committee on the Federal Judiciary, has served in the House of Delegates of the American Bar Association, and is currently serving in the Pennsylvania Bar Association's House of Delegates. She received the Pennsylvania Bar Association's Anne X. Alpern Award, a very distinguished award named for the first woman supreme court justice in the Commonwealth of Pennsylvania--Justice Alpern, whom I knew and practiced before many years ago when I was chief of the appeals division in Philadelphia's Attorney General's office. Mrs. Conti brings the highest credentials to the western district, a court very much in need of additional judicial manpower, or in this case woman power. Also confirmed earlier today was a distinguished lawyer from Pottsville, PA, John E. Jones. Mr. Jones has an outstanding academic record from Dickinson College, 1977, and the Dickinson School of Law in 1980. He has been engaged in the active practice of law in Pottsville for the past 21 years. I have personally known Mr. Jones for 15 years. Just earlier today I was talking to the former Governor of Pennsylvania, Tom Ridge, now serving as President Bush's homeland security adviser, and we compared notes on Mr. Jones and agree that he has outstanding credentials. His background includes being the assistant public defender in Schuylkill County from 1985 until 1985. That is a part-time job. But the defender's office will give him a good background and balance, looking at the defense side of the bar. He served as Pennsylvania's State attorney general for the Drug Abuse Resistance Education Program, and more recently has been chairman of the Pennsylvania Liquor Control Board, having been appointed there in May of 1995. In Pennsylvania, that is a major board, quasi-judicial, and serving as chairman gives one very extensive administrative responsibilities. In that capacity, he has simplified the procedures there in a context of some 20,000 licensees, so that he has a very extensive background to give diversity to the middle district. On Friday, the Senate confirmed another distinguished lawyer, Christopher C. Conner, from Harrisburg, PA. Mr. Connor is chair of the litigation department of Mette, Evans and Woodside, one of the largest law firms in Pennsylvania. He, too, brings excellent academic credentials, being a graduate of Cornell University in 1979 and the Dickinson Law School in 1982, where he was editor of the National Appellate Moot Court Team. He has been active in bar association affairs, taking on the vice presidency of the Pennsylvania bar, coauthoring a Law Review article on ``Partisan Elections, the Albatross of the Pennsylvania Appellate Judiciary.'' Interestingly, with the Supreme Court of the United States recently declaring that candidates for judicial office are now free to campaign, that may be a great impetus to take judges out of elective office; something which I believe should have been done years ago in Pennsylvania and something I urged as long ago as 1968 when we were preparing Pennsylvania's constitution, which was adopted in 1969. Mr. Connor has also served as adjunct professor at the Widner University School of Law on the Harrisburg campus where he taught pretrial procedure. So he brings a very diversified background and an excellent background to the middle district. I am pleased to note that the majority leader is going to go right down the list on nominees and has stated earlier today that we would consider the nomination of Judge Brooks Smith, who is the chief judge of the Western District of Pennsylvania. The Third Circuit being in dire need of additional judicial manpower. Chief Judge Edward R. Becker, one of the most distinguished judges in the United States, has commented about the serious state of affairs there, and I am anxious to see District Court Judge Brooks Smith receive his vote tomorrow. I am confident that he will be confirmed. Judge Smith was reported out of the Judiciary Committee on a vote of 12 to 7, with three Democrats--Senator Biden, Senator Kohl, and Senator Edwards--voting for Judge Smith. It is my hope that we will soon establish a protocol to eliminate the partisan differences which have plagued the Federal judicial nominating process for many years. Now, with a Republican President, President Bush, and a Senate controlled by the Democrats, there have been delays which I believe are excessive. But I have to say at the same time that when President Clinton, a Democrat, was in the White House, and the Senate was controlled by Republicans, similarly the delays were excessive. It is my view that the Federal judgeships are too important to be embroiled in partisan politics or payback or delay. I have proposed a protocol which would establish a timetable: So many days after a nominee is submitted by the President there ought to be a Judiciary Committee hearing. So many days later there ought to be action by the Judiciary Committee, voted up or down; and, if voted up, so many days later there ought to be floor consideration for confirmation by the entire Senate--with that not being an ironclad schedule. If cause is shown, at the discretion of the chairman of the committee on notification to the ranking member there could be a reasonable delay. Similarly, with the majority leader upon notice to the minority leader, there could be a reasonable delay on the vote before the Senate. But I believe the American people generally are sick and tired of partisan politics. They want to see the Senate work together and nowhere is that more important than in the selection of Federal judges. So I am pleased to speak about these three distinguished lawyers who have been confirmed by the Senate and will be sworn in soon. I am also looking forward to the addition of Judge Brooks Smith to the Court of Appeals of the Third Circuit, which is very much in need of his services. I thank the Chair. In the absence of any other Senator seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. Madam President, John E. Jones III is a very distinguished lawyer. I have known him personally for 15 years. He comes from Pottsville, PA. He had an outstanding practice. He has an exemplary academic record. He served as chairman of a very important agency, the Liquor Control Board of Pennsylvania, which has quasi- judicial functions. Joy Flowers Conti was just voted on. I thank the chairman, Senator Leahy, for moving these two judges. I urge him to follow the calendar, which has next in line D. Brooks Smith, who is the present judge of the Western District of Pennsylvania and who has been approved by the committee for the Court of Appeals for the Third Circuit. We are taking up another judge tomorrow. I trust that Judge Smith will be up for confirmation. I yield the remainder of my time.

Mr. SPECTER

Mr. SPECTER. Madam President, at the outset, I thank my distinguished colleagues, the Senators from Illinois and Utah, for holding this matter until my arrival. I came as soon as I finished my round of questioning of the Attorney General, who is currently before the Judiciary Committee. This amendment provides for $500,000 to be made available for a pilot project for mailings of postal patron postcards by Senators for the purpose of providing notice of town meetings in counties with populations of less than 250,000. The reason for this amendment is to stimulate town meetings by Senators and to make us more aware as a body, individually and collectively, of what our constituents are thinking. Until fairly recently, there was no limitation on mail and notices could be sent out to the largest of counties at a very considerable expense as a matter of record, so that the public knew how much a Senator was spending. Those figures were published with some frequency as to the mail expense accounts. My own thinking is that there is no better use of our expense accounts than to communicate with our citizens about where we go personally to hear what is on their minds. Within the beltway, we are very insulated. In fact, people beyond the beltway do not even know what the ``beltway'' expression means. However, when we talk to each other, and do not communicate with our constituents, we do not have a feel for what is going on. The basis of representative democracy is that we are reflecting the will of our constituents. In order to do that, we have to know what it is. When I say reflecting the will of the constituents, I do not mean taking a public opinion poll, or even if there is an enormous preponderance of the constituents, to follow that without question. I think Edmond Burke, centuries ago, laid down the proper standard, that an elected official in a representative democracy owes to his constituents his independent judgment. One of the factors Edmond Burke enumerated was the concerns, sensibilities, and views of the constituent. These town meetings are very difficult affairs, perhaps even categorized as rough affairs. I have done 19 of them during the month of July, mostly during the Fourth of July recess. My practice, which I know is standard for many of my colleagues who undertake these meetings, is to make a very short introductory statement, limiting it to five, six, or seven minutes, and then to respond to questions. The questioning segment is the hot spot. I know the Presiding Officer and the other Senators in the Chamber, and any who may be watching on C-SPAN, know that because we have all had the experience. This is not puff mail which you send out, where the effort has been made to limit what a Senator can do, sending pieces extolling the virtues of the individual Senator. This is an occasion where you are really on the line and have to identify and justify your votes and your positions. Beyond the votes and existing positions, the town meetings acquaint a Senator with many issues the Senator does not know about, and that is the educational process. So it is not only a matter of responding to constituents, rather it is learning from constituents what the new issues are. Since I completed the town meetings in July, I can say to my colleagues that there is great interest out there in Pennsylvania--and I believe Pennsylvania is a very representative State with more than 12 million people--about the need for a prescription drug program. The seniors are really hurting. Many instances were called to my attention by individuals who have low income with very high pharmaceutical bills. This is something that is really at the very top of the agenda. Enron and corporate scandals, prescription drugs, and terrorism were the three major subjects I heard about in the town meetings. I am hopeful--and I have talked to authors of the bills on both sides--we will come to an agreement here and we will legislate on this subject and let it go to conference with the House of Representatives. I believe our job is to reconcile the differences. While we are talking about substantial sums of money, in the overall picture, an accommodation is better than having Senators adhere strictly to some top-dollar figure and not go beyond that. I believe there is a majority in the Senate to reach an accommodation somewhere between what the proposed bills have specified. My soundings are that a prescription drug program is something the American people not only want, but really need. Along the same line, I sense overwhelming anger about what is happening in corporate America and what is happening with Enron and WorldCom, which were the subjects during the Fourth of July recess. This is not some theoretical matter about fraud and criminal conduct that ought to be prosecuted, this is a matter which is reaching Mr. Average American, Mr. Lower Income American, regarding retirement funds, which have been fractionalized. I am glad to see the conferees agreed on a program yesterday, with the Senate bill taking dominance. Even with the work I have had as a prosecutor on fraud cases and business fraud, I am surprised at what has happened here. Every day there is a new revelation. For the major banks to be complicit, at least according to public reports on Enron, is beyond shocking. We really rely, in our society, on the accountants, the attorneys, and the bankers, who are really in a quasi-fiduciary, if not strictly fiduciary capacity, to catch these matters, and especially where it is so lucrative. For them to yield to the pressure to cut corners and to sanction fraud in order to keep a customer or to please a customer is just really beyond the pale. We have had a lot of problems in the long history of this country, however, I think this is one of the most extraordinary. The day before yesterday, we found out about the bankers being complicit, or allegedly complicit, with Enron. We see the SEC investigation disclosed yesterday, as stated in this morning's press, about AOL having fraudulent transactions and boosting their profits fraudulently. It is a surprise to me that an entity as sophisticated as Time Warner would be taken in by corporate chicanery. So these are matters which are very much on the minds of the American people. You have to go to a town meeting and take the temperature of the people to really see how very serious it is. This amendment provides that $500,000 will be used to send out postal patron notices, providing that the Senator pays 50 percent. So we have a good co-pay provision here. Senators are not going to be inclined to send these postal patron notices out without having to pay for one-half of the cost themselves, with the critical requirement that the Senator has to appear. The limitation is put on counties with fewer than 250,000 people because if you send it to a county such as Allegheny County, which has Pittsburgh, or Philadelphia County, it is an enormous expense. We can communicate with our constituents in those major metropolitan areas in ways other than by coming to the county. However, if you talk about Potter County, in north central Pennsylvania, on the northern tier abutting New York State, or you talk about Fulton County, on the Maryland border, those folks really like to see you. You send out a notice, and you get 35 people, and you sit and talk to them. I was in Forest County, and we did not get 35 people, however, I learned a lot from being in Forest County. I think the people in Forest County learned something, too. So I thank my colleagues for accepting this amendment. We had it in last year at a higher figure, subject to authorization. We could not get the hearing worked out. However, I know that this is a test case. I am going to be encouraging my colleagues to do these town meetings, so when the audit comes up, my name is not the only name listed as a recipient. We will await the results of the audit on the pilot program to see just how effective and important this program is. Again, I thank my colleagues and thank the Chair, and I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the text of the joint resolution be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the text of the joint resolution be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I sought recognition to introduce a joint resolution on behalf of Senator Harkin and myself calling upon the Congress to consider, vote on, and enact a joint resolution authorizing the use of force by the U.S. Armed Forces against Iraq before such force is used. This resolution takes no position as to whether the use of force should be authorized or it should not be authorized, but goes to the essential authority of the Congress under the Constitution to declare war. The President's powers as Commander in Chief are reserved for an emergency where Congress does not have an opportunity to deliberate and decide. It is obvious that concerning the current situation with Iraq, there is ample time for a resolution of the issue by the Congress. There have been repeated statements by the administration relating to military action against Saddam Hussein. It is known that Saddam has weapons of mass destruction, such as chemicals which he used against the Kurds, and there exists evidence of biological weapons that he possesses. The best thinking is Saddam does not now have nuclear bombs but is trying to acquire them. The President of the United States, in his State of the Union speech, identified Iraq, along with Iran and North Korea, as the ``axis of evil.'' Secretary of State Powell in congressional testimony then testified that the United States was not going to go to war against either Iran or North Korea, raising the inference that war against Iraq by negative implication was a distinct possibility. There have been repeated requests for regime change by the administration. In lieu of the limited time, I will not enumerate them, although they are set forth in some detail in my prepared statement. On February 13, 2002, I spoke on the floor calling for hearings by the Senate Foreign Relations Committee and/or the Senate Armed Services Committee, and by letters dated February 14, 2002, and March 12, 2002, wrote to the respective chairmen of those committees. I am glad to note that Senator Biden, chairman of the Foreign Relations Committee, has called for a September hearing on the Iraq issue. The power of the Congress on the declaration of war has been eroded very materially, with the President taking unilateral action in Korea, Vietnam, Grenada, Lebanon, Panama, Somalia, and Kosovo. But in a situation where there is ample time for the Congress to deliberate and decide, the Congress should assert its constitutional authority. Among the many issues regarding the separation of powers, none is more important than this basic power to declare war and the separate power which the President has as Commander in Chief which sometimes conflict, but not in the situation such as the one at hand where we have time to deliberate and decide. Earlier this month, I conducted some 19 town meetings across my State of Pennsylvania and found a great deal of citizen concern. People are unaware of the details and would like to know more. In my February 13, 2002 floor speech, I enumerated a number of issues which are worth repeating. First, hearings would identify with greater precision what Saddam has by way of weapons of mass destruction. Secondly, we would get into the details as to what Saddam and Iraq have done by way of thwarting the United Nations from conducting inspections. Earlier this year, I met with Secretary General Kofi Annan to get a firsthand briefing and to press the U.N. to do everything it could to get those inspections. Another issue which I think needs to be subjected to analysis and hearings and national debate is what the cost would be of toppling Saddam, including the cost in casualties. Fourth, what will happen after a regime change? What will happen if, as and when Saddam goes? There is also the critical issue as to what we may expect from Saddam by way of reprisal or by way of anticipatory action. We know that Saddam Hussein is ruthless. We have seen him use chemicals against his own people, the Kurds. We have his statement just yesterday on the 24th anniversary of the July revolution when Saddam came into power. It is a belligerent, bellicose statement. I had an opportunity to meet with Saddam Hussein in January of 1990 at a meeting with Senator Richard Shelby. There is no doubt in my mind, from that contact--a meeting of about an hour and a quarter--that we are dealing with someone who has a mindset and a determination, having invaded Kuwait, having acted against the Kurds, that should give us every reason to be concerned about what he may do in light of the administration's repeated statements about a regime change; a concern if there is action by the United States against Iraq that there may be retaliation against Israel or others in the Mideast. Consideration by the Congress also would be very helpful in addressing the concerns which the international community has expressed on the unilateralism of President Bush and President Bush's administration. We have had instances of that: the International Criminal Court, Kyoto, the U.N.-Bosnia peacekeeping force, and others which I have enumerated in greater detail in the written statement which I will include at the conclusion of these remarks. If there are Members of the Senate and House who come forward and support the President--people in this body with extensive experience in the field over many years, respected international reputations--I think that would give credence to a position that the President may wish to take and would allay some of the concerns internationally on unilateralism, and perhaps persuade some of our allies that this is the right course of conduct. In considering what to do about Saddam, we have the example fresh in our mind of al-Qaeda and Osama bin Laden. We have learned that 20/20 hindsight always being very good that we should have acted against bin Laden before September 11. We had ample warning and ample cause to do so. Bin Laden was under indictment for killing Americans in Mogadishu in 1993. Bin Laden was under indictment for the East Africa Embassy bombings in 1998. We knew he was involved in the U.S.S. Cole terrorism. He had made pronouncements about a worldwide jihad. The United States and the United Nations made demands on the Taliban to turn over bin Laden, which were refused. So we had a right under international law to proceed against bin Laden. There is obviously great concern about Saddam Hussein or what the future may hold if he goes unchecked. But these are all complicated issues. There ought to be full hearings. The American people ought to be informed. We have learned from the bitter experience of Vietnam what happens when there is military action where the American people are not supportive and the Congress is not supportive. Obviously, in a representative democracy, the matter first comes to the Congress. There is the precedent of President George H.W. Bush in 1991, when the Congress authorized a resolution for the use of force. I know the Presiding Officer remembers it well, as do I. It was a historic debate, and has been so characterized by the media and other commentators. President Bush, in 1990, had originally said he did not need congressional authorization. Then Senator Harkin took the floor on January 3, 1991, during a swearing-in ceremony, and procedurally the course that then followed, without going into great detail now, was that we had the debate on January 10, 11, and 12 and voted 52 to 47 in this body authorizing the use of force to repel Iraq from Kuwait. So that precedent is with us. There is no doubt that Congress is reluctant to step into the breach and to take a position. I urged in 1998 that the Congress authorize the use of force before President Clinton moved in with the missile attacks against Iraq in December of 1998. My written statement goes into detail as to what I have done on this issue going back to 1983, when I conducted a debate with Senator Charles Percy on the question of Korea and Vietnam being a war, and the questioning of Justice Souter in 1990 on whether Korea was a war. There has been a reluctance on the part of Congress to step forward. If we do nothing and it all works out, everything is fine, the Congress is happy. If the President acts unilaterally and is wrong, he gets the blame and we do not get the blame. I believe we have a responsibility to step forward. We have a responsibility institutionally under the Constitution to declare war, and we have a responsibility to acquaint the American people as to what is involved, and I think a responsibility to have this debate, to tell our European allies what our reasons are for what we may do. If there is to be military action against Saddam and Iraq, there is no doubt it would be much stronger with a congressional resolution, which implicitly carries the support of the American people. I think the hearings which I have called for and the debate on the resolution will do a great deal to inform the American people and the people of the world as to what we are up to, and whatever justification it is we have. I understand that my distinguished colleague, Senator Harkin, will be a cosponsor of this resolution. Repeated statements from the administration carry the strong suggestion that President Bush intends to take military action to change the regime of Saddam Hussein in Iraq. There are good reasons to be concerned about Saddam Hussein's developing weapons of mass destruction. Iraq's exclusion of UN inspectors raises the inference he has something to hide. On February 13, 2002, in a Senate floor statement, I urged that the Senate Armed Services and/or Senate Foreign Relations Committee hold hearings as much as possible in public with some necessarily in closed sessions, to determine: (1) The specifics on Iraq's weapons of mass destruction; (2) Precisely what happened on the United Nations efforts to conduct inspections in Iraq and Iraq's refusals; (3) What type of a military action would be necessary to topple Saddam, including estimates of U.S. casualties; (4) What is anticipated in a change in regime in Iraq including Saddam's prospective replacement. Congressional Record, S730-731, February 13, 2002. On April 4, 2002, I met with United Nations Secretary General Kofi Annan urging the UN to press Iraq to submit to wide-open, including surprise inspections, to determine the facts on Iraq's possession and efforts to create weapons of mass destruction. Meetings between UN officials and Iraqi representatives on May 1 and 3, 2002 produced no results. Subsequent meetings between UN officials and Iraqi representatives in early July produced no results. A ranking U.S. intelligence official advised that wide-open and surprise inspections in Iraq could provide reasonable assurances as to what Iraq has by way of possessing and/or developing weapons of mass destruction. Presidents have acted unilaterally in the past half century in initiating military actions in Korea, Vietnam, Grenada, Lebanon, Panama, Somalia and Kosovo. In some of those situations where there was not time for the Congress to deliberate and decide on a declaration of war or an authorization for the use of force, it was appropriate for the President to utilize his authority as Commander-in-Chief in an emergency. There is now ample time for the Congress to hold hearings, deliberate and take whatever action Congress deems appropriate regarding Iraq. There is a need for the American public to understand the issues involved in the use of military force against Iraq. There has been some public discussion, but relatively little. Congressional hearings would stimulate a national dialogue on the nation's op-ed pages, radio and television talk shows and in town halls across the country. I am glad to see that Senator Joseph R. Biden, Chairman of the Foreign Relations Committee, has announced his committee will hold hearings on Iraq in September. In 19 town meetings, which I conducted across the Commonwealth of Pennsylvania this month, I heard considerable public concern and confusion over the President's intentions as to Iraq. Public support, reflected through the elected members of the House and Senate, is indispensable to successfully carry out an extensive military action. The United States learned a better lesson in Vietnam that a war cannot be successfully fought without public and congressional support. Consideration by the Congress on these key issues would provide a basis for international understanding of our position and perhaps even support in some quarters. There is a world view that President Bush too often acts unilaterally on critical international issues such as the International Criminal Court, the UN/Bosnia peacekeeping force, the Kyoto Protocol, ABM Treaty withdrawal, and the Biological Weapons Convention. If congressional consideration was followed by the authorization for the use of force supported by thoughtful and experienced members of the House and Senate, the international community might well be reassured that the U.S. military action was not the decision of just one man, even though he is the President of the United States. There is solid precedent for President George W. Bush to request congressional authority for the use of force against Iraq, just as President George H.W. Bush did in January, 1991. On December 21, 1990, and as late as January 9, 1991, President Bush was quoted as saying a congressional authorization was not necessary. See Weekly Compilation of Presidential Documents, January 14, 1991. Vol. 27, No. 2, pp. 24-25. Many Senators, including Claiborne Pell of Rhode Island, Richard Lugar of Indiana, Tom Harkin of Iowa, Edward M. Kennedy of Massachusetts, Joseph R. Biden, Jr. of Delaware, Brock Adams of Washington and I sought to force debate on a resolution that would require congressional authorization for the use of force against Iraq. Congressional Record, S 48, January 4, 1991; Congressional Record, S119-120, January 10, 1991; see also New York Times, October 18, 1990, page A1, ``Senators Demand Role in Approving Any Move on Iraq;'' Washington Post, January 4, 1991, page A19, ``Canceling Recess, Lawmakers Prepare to Debate War Powers.'' On January 3, 1991, the date that Senators who were elected and re- elected the previous November took the oath of office, Senator Harkin successfully sought Senate debate and a vote on a use-of-force resolution. Senate Majority Leader George Mitchell scheduled Senate floor action for consideration of a resolution for the use of force on January 10, 1991. Following a Senate debate which was characterized as ``historical'' by the Washington Post, the Senate authorized the use of force against Iraq by a vote of 52 to 47. Congressional Record, S1018- 1019, January 12, 1991. Similarly, the House of Representatives passed such a resolution by a vote of 250 to 183. Congressional Record, H1139- 1140, January 12, 1991. With the repeated public commentary on the President's plans to use force against Iraq, there has been public concern about what Saddam Hussein might do in anticipation or retaliation. Saddam is well known for his ruthlessness and his disdain for life by use of chemicals against his own people, the Kurds. Saddam is widely reported to have stockpiles of biological weapons. In a struggle for his own survival, why should we expect Saddam Hussein to refrain from using every weapon at his disposal against an announced attacker? A lengthy article in the New York Times on July 6, 2002 concerning U.S. plans for widespread inoculation for smallpox carried the implicit suggestion of a concern for a bioterrorism attack. Consideration by Congress on a resolution for the use of force against Saddam would not impact on any potential element of surprise because there is no element of surprise left. The news media has been full of notice to Saddam of potential U.S. plans such as: The New York Times February 16, 2002, edition which quoted Vice President Cheney as saying, ``The President is determined to press on and stop Iraq . . . from continuing to develop weapons of mass destruction'' and intends to use ``the means at our disposal--including military, diplomatic and intelligence to address these concerns''; The Los Angeles Times on May 5, 2002, reported that the defense Intelligence Agency has produced an operational support study on Iraq including maps and data on geography, roads, refineries, communication facilities, security organizations and military deployments; The Washington Post reported on May 24, 2002, General Tommy R. Franks, Commander of the U.S. Central Command, has briefed the President concerning troop levels necessary to invade Iraq and oust Saddam Hussein; The New York Times on July 5, 2002, reported on an American military document calling for air, land and sea based forces to attack Iraq and topple Saddam Hussein; The New York Times on July 9, 2002, quoted President Bush as saying on Iraq: ``It's the stated policy of this government to have regime change and it hasn't changed. And we'll use all tools at our disposal to do so.'' In considering a pre-emptive strike against Iraq, we should consider--not that it is determinative--the consequences of not acting against al-Qaeda and Osama bin Laden before September 11, 2001. We had reason in that situation to anticipate a terrorist attack and we had rights under international law to move against bin Laden and al-Qaeda in a pre-emptive strike before September 11, 2001. Prior to September 11, Osama bin Laden was under U.S. indictment for killing Americans in Mogadishu in 1993. He was further under U.S. indictment for the attacks against American embassies in 1998. He was known to have been involved in the terrorist attack of the USS Cole. Osama bin Laden had spoken repeatedly and publicly about his intention to carry out a worldwide Jihad against the United States. When the Taliban in control in Afghanistan refused to turn over bin Laden to the United States after demands by the United States and the United Nations, the United States had rights under international law to use military force against al-Qaeda and bin Laden. With congressional hearings as a start, the American people should be informed about Iraq's threat and all our efforts to deal with this threat short of use of military force. We should do our utmost to organize an international coalition against Iraq, which President George Bush did in 1991, specifying as much of the evidence as possible in public congressional hearings in order to create American and worldwide public support for appropriate action. Such public hearings would be supplemented by classified information given to the leaders of the prospective coalition. Article I, Section 8 of the United States Constitution provides that ``Congress has the authority to declare war.'' Article 2 Section 2 of the United States Constitution provides that the President ``shall be commander in chief of the army and navy of the United States. . . .'' In the past half century, there has been a consistent and considerable erosion of Congress' constitutional authority to declare war with a concomitant expansion of the President's powers as Commander-in-Chief. My concerns about the erosion of congressional authority to declare war first arose in 1951 when I was called to active duty in the United States Air Force after having received in R.O.T.C. commission as a second lieutenant upon graduation from the University of Pennsylvania. I was glad to serve state-side from July 29, 1951 to July 31, 1953 as a special agent in the Office of Special Investigations, noting that President Truman had acted on his authority as Commander-in-Chief to order a ``police action'' without congressional authorization. Early in my Senate career, I participated extensively in floor debate on the War Powers Resolution concerning U.S. military action in Lebanon. On September 27, 1983, I questioned Senator Charles H. Percy, Chairman of the Foreign Relations Committee, as to whether Korea and Vietnam were wars. Senator Percy stated that both Korea and Vietnam were wars even though undeclared. Congressional Record, S. 12995, September 27, 1983. In 1983, I prepared a legal document for a declaratory judgment action to take to the Supreme Court of the United States on the issue of the constitutionality of the War Powers Act and seeking a judicial determination of the respective authority of the President as Commander-in-Chief and the Congress to declare war. It was my thought that if the Congress and the President asked the Court to take jurisdiction and decide this issue, the Court might do so although even with such a joint request, the Supreme Court might be unwilling to be involved in the so-called ``political thicket''. The Reagan Administration was unwilling to join in such a request and congressional leaders were reluctant to do so although no final determination was made since the issue was rendered moot by the Reagan Administration's declination. Understandably, the parties preferred to leave the issue ambiguous with a resolution on a case-by-case basis in the political process without a finite judicial determination. I pursued my inquiries by questioning Supreme Court nominees as to whether Korea was a war. In confirmation hearings for Justice David Souter on September 14, 1990, I questioned him as to whether Korea was a war, whether the Presidents exceeded their constitutional authority in military action in Korea and Vietnam and whether the War Powers Act was unconstitutional in violating presidential powers as Commander-in- Chief. Justice Souter declined to express an opinion stating, in effect, that there was no law to guide him in answering these questions. See Hearings Before the Committee on the Judiciary, United States Senate, 101st Cong., 2nd Sess., on the Nomination of David H. Souter to be Associate of the Supreme Court of the United States. In the Fall of 1990 and in early January 1991, I joined other senators in successfully taking the position that the President needed congressional authorization for the use of military force against Iraq and the enforcement of UN Security Council Resolution 678. Congressional Record, S. 405-490, January 10, 1991. I took up this question again on September 13, 1994, taking the position that the President did not have the constitutional authority to order an invasion of Haiti without prior congressional authorization. Congressional Record, S. 12760, September 13, 1994. On June 5, 1995, I introduced S. Res. 128, which stated it was the sense of the Senate that no U.S. military personnel should be introduced into combat or potential combat situations in Bosnia without clearly defined objectives and sufficient resources to achieve those objectives. Congressional Record, S. 7703, June 5, 1995. That resolution noted that there was ample time for Congress to deliberate and decide that matter, stating that such a decision was a matter for the Congress and that there should be no further erosion of that authority by the Executive Branch. On November 1, 1995, noting the military action in Somalia without congressional authority and the military action in Haiti without congressional authority, I urge the President to follow the precedent of the Gulf war and seek congressional approval for incursions into Bosnia since there was ample opportunity for Congress to consider and decide the issue. Congressional Record, S. 31102, November 1, 1995. On September 17, 1996, I spoke on the Senate floor on the use of force with missile strikes against Iraq on September 3, 1996, noting that this was another example where the President did not seek congressional authorization or even consultation in advance of that military action. Congressional Record, S. 10624-10625, September 17, 1996. When there was speculation about additional military action against Iraq in early 1998, I spoke on the Senate floor on February 12, 1998, noting that an air attack or a missile attack constituted acts of war which required congressional authority. Congressional Record, S. 791- 792, February 12, 1998. The President then ordered missile strikes against Iraq in December 1998 without seeking congressional authority. On February 23, 1999, during Senate debate on the President's use of force in Kosovo, I noted my concern that air strikes constituted acts of war which required authorization by Congress. Congressional Record, S. 1771-1773, February 23, 1999. I again noted the continuing erosion of constitutional authority and the need for Congress to debate, deliberate and decide these issues when there was ample time to do so. I noted the tendency on the part of Congress to sit back and avoid such tough decisions. If things go wrong, there is always the President to blame. If things go right, we have not impeded Presidential action. On March 23, 1999, the Senate voted 58 to 41 to authorize air strikes in Kosovo after the President's request for such congressional action. Congressional Record, S. 3118, March 23, 1999. I voted in favor of air strikes even though I had concerns about the President's reliance on the ``humanitarian catastrophe'' which was a departure from recognized U.S. policy to use force where there was a vital U.S. national security interest. The House deadlocked 213 to 213 on the same vote to authorize force. Congressional Record, H. 2451-2452, April 28, 1999. On May 24, 1999, I proposed an amendment to S. 1059--the Department of Defense Authorization bill--calling on the President to ``seek approval from Congress prior to the introduction of ground troops from the United States Armed Forces in connection with the present operations against the Federal Republic of Yugoslavia or funding for that operation will not be authorized.'' Congressional Record, S. 5809- 5811, May 25, 1999. While supporting air strikes proposed by the President against the former Yugloslavia, I opposed any open-ended authorization, such as S.J. Res. 20, which would have ``authorized [the President] to use all necessary force and other means in concert with United States allies to accomplish the United States and North Atlantic Treaty Organization objectives in the Federal Republic of Yugoslavia, Serbia and Montenegro''. I thought the broad wording of that resolution constituted a blank check which was unwise. Instead, the President should seek specific congressional authority after specifying the objectives and the means for accomplishing those objectives. There is an understandable reluctance on the part of Members of the House and Senate to challenge a President, especially a popular President, on his actions as Commander-in-Chief to protect U.S. national interests. The constitutional issues on separation of powers and the respective authority of the Congress vis-a-vis the President are obviously important. Of even greater importance, however, is the value of a united front with the President backed by congressional authorization and American public opinion on an issue where most, if not virtually all, of the international community is in opposition. If the Congress sits back and does nothing and the President is right, then there is public approval. If the President turns out to be wrong, then it is his responsibility without blame being attached to the Congress. There is an added element that the President may, and probably does, know more than the Congress. Hearings, in closed session, could address that discrepancy in knowledge. The current issue of Iraq is another chapter, albeit a very important chapter, in the ongoing effort to define congressional and Presidential authority on the critical constitutional doctrine of separation of powers. In the present case, there is ample time for Congress to deliberate and decide. With the stakes so high, Congress should assert its constitutional authority to make this critical decision.

Mr. SPECTER

Mr. SPECTER. I thank the Chair and the Senator from Michigan and the Senator from Nevada. (The remarks of Mr. Specter pertaining to the introduction of S.J. Res. 41 are printed in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. SPECTER

Mr. SPECTER. I thank my distinguished colleague from Nevada, and I will endeavor to limit myself to 10 minutes.

Mr. SPECTER. Mr. President, I will try to abbreviate my remarks.

Mr. SPECTER

Mr. SPECTER. Mr. President, I sought recognition to introduce a joint resolution on behalf of Senator Harkin and myself calling upon the Congress to consider, vote on, and enact a joint resolution authorizing the use of force by the U.S. Armed Forces against Iraq before such force is used. This resolution takes no position as to whether the use of force should be authorized or it should not be authorized, but goes to the essential authority of the Congress under the Constitution to declare war. The President's powers as Commander in Chief are reserved for an emergency where Congress does not have an opportunity to deliberate and decide. It is obvious that concerning the current situation with Iraq, there is ample time for a resolution of the issue by the Congress. There have been repeated statements by the administration relating to military action against Saddam Hussein. It is known that Saddam has weapons of mass destruction, such as chemicals which he used against the Kurds, and there exists evidence of biological weapons that he possesses. The best thinking is Saddam does not now have nuclear bombs but is trying to acquire them. The President of the United States, in his State of the Union speech, identified Iraq, along with Iran and North Korea, as the ``axis of evil.'' Secretary of State Powell in congressional testimony then testified that the United States was not going to go to war against either Iran or North Korea, raising the inference that war against Iraq by negative implication was a distinct possibility. There have been repeated requests for regime change by the administration. In lieu of the limited time, I will not enumerate them, although they are set forth in some detail in my prepared statement. On February 13, 2002, I spoke on the floor calling for hearings by the Senate Foreign Relations Committee and/or the Senate Armed Services Committee, and by letters dated February 14, 2002, and March 12, 2002, wrote to the respective chairmen of those committees. I am glad to note that Senator Biden, chairman of the Foreign Relations Committee, has called for a September hearing on the Iraq issue. The power of the Congress on the declaration of war has been eroded very materially, with the President taking unilateral action in Korea, Vietnam, Grenada, Lebanon, Panama, Somalia, and Kosovo. But in a situation where there is ample time for the Congress to deliberate and decide, the Congress should assert its constitutional authority. Among the many issues regarding the separation of powers, none is more important than this basic power to declare war and the separate power which the President has as Commander in Chief which sometimes conflict, but not in the situation such as the one at hand where we have time to deliberate and decide. Earlier this month, I conducted some 19 town meetings across my State of Pennsylvania and found a great deal of citizen concern. People are unaware of the details and would like to know more. In my February 13, 2002 floor speech, I enumerated a number of issues which are worth repeating. First, hearings would identify with greater precision what Saddam has by way of weapons of mass destruction. Secondly, we would get into the details as to what Saddam and Iraq have done by way of thwarting the United Nations from conducting inspections. Earlier this year, I met with Secretary General Kofi Annan to get a firsthand briefing and to press the U.N. to do everything it could to get those inspections. Another issue which I think needs to be subjected to analysis and hearings and national debate is what the cost would be of toppling Saddam, including the cost in casualties. Fourth, what will happen after a regime change? What will happen if, as and when Saddam goes? There is also the critical issue as to what we may expect from Saddam by way of reprisal or by way of anticipatory action. We know that Saddam Hussein is ruthless. We have seen him use chemicals against his own people, the Kurds. We have his statement just yesterday on the 24th anniversary of the July revolution when Saddam came into power. It is a belligerent, bellicose statement. I had an opportunity to meet with Saddam Hussein in January of 1990 at a meeting with Senator Richard Shelby. There is no doubt in my mind, from that contact--a meeting of about an hour and a quarter--that we are dealing with someone who has a mindset and a determination, having invaded Kuwait, having acted against the Kurds, that should give us every reason to be concerned about what he may do in light of the administration's repeated statements about a regime change; a concern if there is action by the United States against Iraq that there may be retaliation against Israel or others in the Mideast. Consideration by the Congress also would be very helpful in addressing the concerns which the international community has expressed on the unilateralism of President Bush and President Bush's administration. We have had instances of that: the International Criminal Court, Kyoto, the U.N.-Bosnia peacekeeping force, and others which I have enumerated in greater detail in the written statement which I will include at the conclusion of these remarks. If there are Members of the Senate and House who come forward and support the President--people in this body with extensive experience in the field over many years, respected international reputations--I think that would give credence to a position that the President may wish to take and would allay some of the concerns internationally on unilateralism, and perhaps persuade some of our allies that this is the right course of conduct. In considering what to do about Saddam, we have the example fresh in our mind of al-Qaeda and Osama bin Laden. We have learned that 20/20 hindsight always being very good that we should have acted against bin Laden before September 11. We had ample warning and ample cause to do so. Bin Laden was under indictment for killing Americans in Mogadishu in 1993. Bin Laden was under indictment for the East Africa Embassy bombings in 1998. We knew he was involved in the U.S.S. Cole terrorism. He had made pronouncements about a worldwide jihad. The United States and the United Nations made demands on the Taliban to turn over bin Laden, which were refused. So we had a right under international law to proceed against bin Laden. There is obviously great concern about Saddam Hussein or what the future may hold if he goes unchecked. But these are all complicated issues. There ought to be full hearings. The American people ought to be informed. We have learned from the bitter experience of Vietnam what happens when there is military action where the American people are not supportive and the Congress is not supportive. Obviously, in a representative democracy, the matter first comes to the Congress. There is the precedent of President George H.W. Bush in 1991, when the Congress authorized a resolution for the use of force. I know the Presiding Officer remembers it well, as do I. It was a historic debate, and has been so characterized by the media and other commentators. President Bush, in 1990, had originally said he did not need congressional authorization. Then Senator Harkin took the floor on January 3, 1991, during a swearing-in ceremony, and procedurally the course that then followed, without going into great detail now, was that we had the debate on January 10, 11, and 12 and voted 52 to 47 in this body authorizing the use of force to repel Iraq from Kuwait. So that precedent is with us. There is no doubt that Congress is reluctant to step into the breach and to take a position. I urged in 1998 that the Congress authorize the use of force before President Clinton moved in with the missile attacks against Iraq in December of 1998. My written statement goes into detail as to what I have done on this issue going back to 1983, when I conducted a debate with Senator Charles Percy on the question of Korea and Vietnam being a war, and the questioning of Justice Souter in 1990 on whether Korea was a war. There has been a reluctance on the part of Congress to step forward. If we do nothing and it all works out, everything is fine, the Congress is happy. If the President acts unilaterally and is wrong, he gets the blame and we do not get the blame. I believe we have a responsibility to step forward. We have a responsibility institutionally under the Constitution to declare war, and we have a responsibility to acquaint the American people as to what is involved, and I think a responsibility to have this debate, to tell our European allies what our reasons are for what we may do. If there is to be military action against Saddam and Iraq, there is no doubt it would be much stronger with a congressional resolution, which implicitly carries the support of the American people. I think the hearings which I have called for and the debate on the resolution will do a great deal to inform the American people and the people of the world as to what we are up to, and whatever justification it is we have. I understand that my distinguished colleague, Senator Harkin, will be a cosponsor of this resolution. Repeated statements from the administration carry the strong suggestion that President Bush intends to take military action to change the regime of Saddam Hussein in Iraq. There are good reasons to be concerned about Saddam Hussein's developing weapons of mass destruction. Iraq's exclusion of UN inspectors raises the inference he has something to hide. On February 13, 2002, in a Senate floor statement, I urged that the Senate Armed Services and/or Senate Foreign Relations Committee hold hearings as much as possible in public with some necessarily in closed sessions, to determine: (1) The specifics on Iraq's weapons of mass destruction; (2) Precisely what happened on the United Nations efforts to conduct inspections in Iraq and Iraq's refusals; (3) What type of a military action would be necessary to topple Saddam, including estimates of U.S. casualties; (4) What is anticipated in a change in regime in Iraq including Saddam's prospective replacement. Congressional Record, S730-731, February 13, 2002. On April 4, 2002, I met with United Nations Secretary General Kofi Annan urging the UN to press Iraq to submit to wide-open, including surprise inspections, to determine the facts on Iraq's possession and efforts to create weapons of mass destruction. Meetings between UN officials and Iraqi representatives on May 1 and 3, 2002 produced no results. Subsequent meetings between UN officials and Iraqi representatives in early July produced no results. A ranking U.S. intelligence official advised that wide-open and surprise inspections in Iraq could provide reasonable assurances as to what Iraq has by way of possessing and/or developing weapons of mass destruction. Presidents have acted unilaterally in the past half century in initiating military actions in Korea, Vietnam, Grenada, Lebanon, Panama, Somalia and Kosovo. In some of those situations where there was not time for the Congress to deliberate and decide on a declaration of war or an authorization for the use of force, it was appropriate for the President to utilize his authority as Commander-in-Chief in an emergency. There is now ample time for the Congress to hold hearings, deliberate and take whatever action Congress deems appropriate regarding Iraq. There is a need for the American public to understand the issues involved in the use of military force against Iraq. There has been some public discussion, but relatively little. Congressional hearings would stimulate a national dialogue on the nation's op-ed pages, radio and television talk shows and in town halls across the country. I am glad to see that Senator Joseph R. Biden, Chairman of the Foreign Relations Committee, has announced his committee will hold hearings on Iraq in September. In 19 town meetings, which I conducted across the Commonwealth of Pennsylvania this month, I heard considerable public concern and confusion over the President's intentions as to Iraq. Public support, reflected through the elected members of the House and Senate, is indispensable to successfully carry out an extensive military action. The United States learned a better lesson in Vietnam that a war cannot be successfully fought without public and congressional support. Consideration by the Congress on these key issues would provide a basis for international understanding of our position and perhaps even support in some quarters. There is a world view that President Bush too often acts unilaterally on critical international issues such as the International Criminal Court, the UN/Bosnia peacekeeping force, the Kyoto Protocol, ABM Treaty withdrawal, and the Biological Weapons Convention. If congressional consideration was followed by the authorization for the use of force supported by thoughtful and experienced members of the House and Senate, the international community might well be reassured that the U.S. military action was not the decision of just one man, even though he is the President of the United States. There is solid precedent for President George W. Bush to request congressional authority for the use of force against Iraq, just as President George H.W. Bush did in January, 1991. On December 21, 1990, and as late as January 9, 1991, President Bush was quoted as saying a congressional authorization was not necessary. See Weekly Compilation of Presidential Documents, January 14, 1991. Vol. 27, No. 2, pp. 24-25. Many Senators, including Claiborne Pell of Rhode Island, Richard Lugar of Indiana, Tom Harkin of Iowa, Edward M. Kennedy of Massachusetts, Joseph R. Biden, Jr. of Delaware, Brock Adams of Washington and I sought to force debate on a resolution that would require congressional authorization for the use of force against Iraq. Congressional Record, S 48, January 4, 1991; Congressional Record, S119-120, January 10, 1991; see also New York Times, October 18, 1990, page A1, ``Senators Demand Role in Approving Any Move on Iraq;'' Washington Post, January 4, 1991, page A19, ``Canceling Recess, Lawmakers Prepare to Debate War Powers.'' On January 3, 1991, the date that Senators who were elected and re- elected the previous November took the oath of office, Senator Harkin successfully sought Senate debate and a vote on a use-of-force resolution. Senate Majority Leader George Mitchell scheduled Senate floor action for consideration of a resolution for the use of force on January 10, 1991. Following a Senate debate which was characterized as ``historical'' by the Washington Post, the Senate authorized the use of force against Iraq by a vote of 52 to 47. Congressional Record, S1018- 1019, January 12, 1991. Similarly, the House of Representatives passed such a resolution by a vote of 250 to 183. Congressional Record, H1139- 1140, January 12, 1991. With the repeated public commentary on the President's plans to use force against Iraq, there has been public concern about what Saddam Hussein might do in anticipation or retaliation. Saddam is well known for his ruthlessness and his disdain for life by use of chemicals against his own people, the Kurds. Saddam is widely reported to have stockpiles of biological weapons. In a struggle for his own survival, why should we expect Saddam Hussein to refrain from using every weapon at his disposal against an announced attacker? A lengthy article in the New York Times on July 6, 2002 concerning U.S. plans for widespread inoculation for smallpox carried the implicit suggestion of a concern for a bioterrorism attack. Consideration by Congress on a resolution for the use of force against Saddam would not impact on any potential element of surprise because there is no element of surprise left. The news media has been full of notice to Saddam of potential U.S. plans such as: The New York Times February 16, 2002, edition which quoted Vice President Cheney as saying, ``The President is determined to press on and stop Iraq . . . from continuing to develop weapons of mass destruction'' and intends to use ``the means at our disposal--including military, diplomatic and intelligence to address these concerns''; The Los Angeles Times on May 5, 2002, reported that the defense Intelligence Agency has produced an operational support study on Iraq including maps and data on geography, roads, refineries, communication facilities, security organizations and military deployments; The Washington Post reported on May 24, 2002, General Tommy R. Franks, Commander of the U.S. Central Command, has briefed the President concerning troop levels necessary to invade Iraq and oust Saddam Hussein; The New York Times on July 5, 2002, reported on an American military document calling for air, land and sea based forces to attack Iraq and topple Saddam Hussein; The New York Times on July 9, 2002, quoted President Bush as saying on Iraq: ``It's the stated policy of this government to have regime change and it hasn't changed. And we'll use all tools at our disposal to do so.'' In considering a pre-emptive strike against Iraq, we should consider--not that it is determinative--the consequences of not acting against al-Qaeda and Osama bin Laden before September 11, 2001. We had reason in that situation to anticipate a terrorist attack and we had rights under international law to move against bin Laden and al-Qaeda in a pre-emptive strike before September 11, 2001. Prior to September 11, Osama bin Laden was under U.S. indictment for killing Americans in Mogadishu in 1993. He was further under U.S. indictment for the attacks against American embassies in 1998. He was known to have been involved in the terrorist attack of the USS Cole. Osama bin Laden had spoken repeatedly and publicly about his intention to carry out a worldwide Jihad against the United States. When the Taliban in control in Afghanistan refused to turn over bin Laden to the United States after demands by the United States and the United Nations, the United States had rights under international law to use military force against al-Qaeda and bin Laden. With congressional hearings as a start, the American people should be informed about Iraq's threat and all our efforts to deal with this threat short of use of military force. We should do our utmost to organize an international coalition against Iraq, which President George Bush did in 1991, specifying as much of the evidence as possible in public congressional hearings in order to create American and worldwide public support for appropriate action. Such public hearings would be supplemented by classified information given to the leaders of the prospective coalition. Article I, Section 8 of the United States Constitution provides that ``Congress has the authority to declare war.'' Article 2 Section 2 of the United States Constitution provides that the President ``shall be commander in chief of the army and navy of the United States. . . .'' In the past half century, there has been a consistent and considerable erosion of Congress' constitutional authority to declare war with a concomitant expansion of the President's powers as Commander-in-Chief. My concerns about the erosion of congressional authority to declare war first arose in 1951 when I was called to active duty in the United States Air Force after having received in R.O.T.C. commission as a second lieutenant upon graduation from the University of Pennsylvania. I was glad to serve state-side from July 29, 1951 to July 31, 1953 as a special agent in the Office of Special Investigations, noting that President Truman had acted on his authority as Commander-in-Chief to order a ``police action'' without congressional authorization. Early in my Senate career, I participated extensively in floor debate on the War Powers Resolution concerning U.S. military action in Lebanon. On September 27, 1983, I questioned Senator Charles H. Percy, Chairman of the Foreign Relations Committee, as to whether Korea and Vietnam were wars. Senator Percy stated that both Korea and Vietnam were wars even though undeclared. Congressional Record, S. 12995, September 27, 1983. In 1983, I prepared a legal document for a declaratory judgment action to take to the Supreme Court of the United States on the issue of the constitutionality of the War Powers Act and seeking a judicial determination of the respective authority of the President as Commander-in-Chief and the Congress to declare war. It was my thought that if the Congress and the President asked the Court to take jurisdiction and decide this issue, the Court might do so although even with such a joint request, the Supreme Court might be unwilling to be involved in the so-called ``political thicket''. The Reagan Administration was unwilling to join in such a request and congressional leaders were reluctant to do so although no final determination was made since the issue was rendered moot by the Reagan Administration's declination. Understandably, the parties preferred to leave the issue ambiguous with a resolution on a case-by-case basis in the political process without a finite judicial determination. I pursued my inquiries by questioning Supreme Court nominees as to whether Korea was a war. In confirmation hearings for Justice David Souter on September 14, 1990, I questioned him as to whether Korea was a war, whether the Presidents exceeded their constitutional authority in military action in Korea and Vietnam and whether the War Powers Act was unconstitutional in violating presidential powers as Commander-in- Chief. Justice Souter declined to express an opinion stating, in effect, that there was no law to guide him in answering these questions. See Hearings Before the Committee on the Judiciary, United States Senate, 101st Cong., 2nd Sess., on the Nomination of David H. Souter to be Associate of the Supreme Court of the United States. In the Fall of 1990 and in early January 1991, I joined other senators in successfully taking the position that the President needed congressional authorization for the use of military force against Iraq and the enforcement of UN Security Council Resolution 678. Congressional Record, S. 405-490, January 10, 1991. I took up this question again on September 13, 1994, taking the position that the President did not have the constitutional authority to order an invasion of Haiti without prior congressional authorization. Congressional Record, S. 12760, September 13, 1994. On June 5, 1995, I introduced S. Res. 128, which stated it was the sense of the Senate that no U.S. military personnel should be introduced into combat or potential combat situations in Bosnia without clearly defined objectives and sufficient resources to achieve those objectives. Congressional Record, S. 7703, June 5, 1995. That resolution noted that there was ample time for Congress to deliberate and decide that matter, stating that such a decision was a matter for the Congress and that there should be no further erosion of that authority by the Executive Branch. On November 1, 1995, noting the military action in Somalia without congressional authority and the military action in Haiti without congressional authority, I urge the President to follow the precedent of the Gulf war and seek congressional approval for incursions into Bosnia since there was ample opportunity for Congress to consider and decide the issue. Congressional Record, S. 31102, November 1, 1995. On September 17, 1996, I spoke on the Senate floor on the use of force with missile strikes against Iraq on September 3, 1996, noting that this was another example where the President did not seek congressional authorization or even consultation in advance of that military action. Congressional Record, S. 10624-10625, September 17, 1996. When there was speculation about additional military action against Iraq in early 1998, I spoke on the Senate floor on February 12, 1998, noting that an air attack or a missile attack constituted acts of war which required congressional authority. Congressional Record, S. 791- 792, February 12, 1998. The President then ordered missile strikes against Iraq in December 1998 without seeking congressional authority. On February 23, 1999, during Senate debate on the President's use of force in Kosovo, I noted my concern that air strikes constituted acts of war which required authorization by Congress. Congressional Record, S. 1771-1773, February 23, 1999. I again noted the continuing erosion of constitutional authority and the need for Congress to debate, deliberate and decide these issues when there was ample time to do so. I noted the tendency on the part of Congress to sit back and avoid such tough decisions. If things go wrong, there is always the President to blame. If things go right, we have not impeded Presidential action. On March 23, 1999, the Senate voted 58 to 41 to authorize air strikes in Kosovo after the President's request for such congressional action. Congressional Record, S. 3118, March 23, 1999. I voted in favor of air strikes even though I had concerns about the President's reliance on the ``humanitarian catastrophe'' which was a departure from recognized U.S. policy to use force where there was a vital U.S. national security interest. The House deadlocked 213 to 213 on the same vote to authorize force. Congressional Record, H. 2451-2452, April 28, 1999. On May 24, 1999, I proposed an amendment to S. 1059--the Department of Defense Authorization bill--calling on the President to ``seek approval from Congress prior to the introduction of ground troops from the United States Armed Forces in connection with the present operations against the Federal Republic of Yugoslavia or funding for that operation will not be authorized.'' Congressional Record, S. 5809- 5811, May 25, 1999. While supporting air strikes proposed by the President against the former Yugloslavia, I opposed any open-ended authorization, such as S.J. Res. 20, which would have ``authorized [the President] to use all necessary force and other means in concert with United States allies to accomplish the United States and North Atlantic Treaty Organization objectives in the Federal Republic of Yugoslavia, Serbia and Montenegro''. I thought the broad wording of that resolution constituted a blank check which was unwise. Instead, the President should seek specific congressional authority after specifying the objectives and the means for accomplishing those objectives. There is an understandable reluctance on the part of Members of the House and Senate to challenge a President, especially a popular President, on his actions as Commander-in-Chief to protect U.S. national interests. The constitutional issues on separation of powers and the respective authority of the Congress vis-a-vis the President are obviously important. Of even greater importance, however, is the value of a united front with the President backed by congressional authorization and American public opinion on an issue where most, if not virtually all, of the international community is in opposition. If the Congress sits back and does nothing and the President is right, then there is public approval. If the President turns out to be wrong, then it is his responsibility without blame being attached to the Congress. There is an added element that the President may, and probably does, know more than the Congress. Hearings, in closed session, could address that discrepancy in knowledge. The current issue of Iraq is another chapter, albeit a very important chapter, in the ongoing effort to define congressional and Presidential authority on the critical constitutional doctrine of separation of powers. In the present case, there is ample time for Congress to deliberate and decide. With the stakes so high, Congress should assert its constitutional authority to make this critical decision.

Mr. SPECTER

Mr. SPECTER. Mr. President, I am voting against the McConnell amendment because existing law already accomplishes what he seeks to do. There exists now under the Labor Management Reporting and Disclosure Act of 1959 extensive and intensive provisions for reporting by the President and Treasurer of labor organizations. Furthermore, the audit requirements of this amendment, which apply to union filers with receipts of $200,000 or more, impose under regulation of small entities. Public corporations subject to the SEC typically have many more assets with initial public offerings are customarily in the range of $40 million. The annual costs of compliance might exceed the annual receipts of many filers who would be subjected to these requirements. To require audits of all unions regardless of size or complexity of financial reports would cause an unreasonable burden on many smaller locals who already must file LM-2 reports. Unions with annual receipts of $200,000 or more covered by the McConnell amendment come in an extremely wide range of types, sizes, and of performing services. Of the more than 5,000 labor organizations that currently meet this criterion and file LM-2 reports, only about 70 are national or international unions. The rest are locals--largely voluntary organizations, many with no or few full-time employees. The current Department of Labor reporting requirements take this ``no one-size- fits-all'' approach into account and build in some flexibility that the McConnell amendment does not allow. For example, many smaller locals do not need to retain outside CPAs because their financial statements are very simple and consistent from year to year. The amendment's certification requirements are also redundant. For more than 40 years, union officers have been required to sign annual financial reports under penalty of perjury, attesting that the report's information accurately describes the union's financial condition and operations.

Mr. SPECTER

Mr. SPECTER. Madam President, I submit for the Congressional Record several additional supporting documents regarding Medicare Metropolitan Statistical Areas referenced in my statement on Monday, July 8, 2002. I therefore ask unanimous consent that the additional documents be printed in today's Record.

Mr. SPECTER

Mr. SPECTER. Madam President, when I inquire as to the next step, the Senator from Alaska comments we will have another opportunity to make an inquiry. Will these procedures, if I may inquire of the Senator----

Mr. SPECTER. Madam President, I thank the distinguished Senator from Alaska. The question of concern to this Senator and I think many others is the issue of safety in transporting this nuclear material. What are the plans in the general sense? That is, how will the material be transported? By truck? By rail? And in a general way, what will the routes be? Will they pass through densely populated areas?

Mr. SPECTER. Madam President, my next question is, is the Senator from Alaska in a position to respond to what the tonnage would be, over how long a period of time, and how many shipments there would be to handle the nuclear waste involved in the projection for being a repository of Yucca Mountain?

Mr. SPECTER. Over how long a period of time?

Mr. SPECTER. Madam President, I inquire of the distinguished manager if I may ask him a question or two. I discussed this with Senator Murkowski.

Mr. SPECTER. Mr. President, I thank the Senator from Alaska for those responses.

Mr. SPECTER. My final question relates to the issue as to the precautions in the event, perhaps unlikely, that there would be an accident. What assurances are there, if it should happen, for example, in Russell, KS, my hometown--what could happen in Alaska could happen in the hometown of the Senator from Alaska--

Mr. SPECTER. Let me finish the question. Having been here for 22 years, having come to the Senate the same day, we can almost communicate without speaking very much. But my question goes to the issue of another vote here. You say we will have another opportunity. Will there be something presented to the Senate where we have an opportunity to vote on our views as to the adequacy of the safety procedures?

Mr. SPECTER. Madam President, another couple of questions. In the absence of a vote, my question to the Senator from Alaska would be, What congressional oversight is possible? Sometimes licensing procedures are fine and sometimes they are not, but they do not have the assurance which this deliberative body can apply. So my specific question is, What level of oversight would the Senator from Alaska envisage with the licensing procedures?