J. Thurmond

Mr. THURMOND

Mr. THURMOND. Mr. President, over the past several weeks, the Senate Armed Services Committee held a series of hearings to review the status of our armed forces. I scheduled these hearings because I have been concerned for some time that the Administration's defense budget was inadequate to maintain readiness and because members and staff were bringing back anecdotal information indicating the readiness of our armed forces was declining. On September 29, the committee heard from General Shelton, the Chairman of the Joint Chiefs of Staff, and other members of the Joint Chiefs, General Reimer, Admiral Johnson, General Ryan, and General Krulak. The hearing has been described by the media as adversarial, however, I would describe it as open, candid and productive. It was not surprising that the Chiefs acknowledged the U.S. military is falling into a readiness crisis and faces the danger of becoming a ``hollow'' force if appropriate measures are not taken. They specifically indicated the need for additional resources now and in the out years. Most illustrative of the testimony is the following quote by General Shelton: I must admit up front that our forces are showing increasing signs of serious wear. Anecdotal and now measurable evidence indicates that our current readiness is fraying and that the long-term health of the Total Force is in jeopardy. Mr. President, on October 6, the committee followed up the hearing with the Joint Chiefs of Staff, with a hearing at which Secretary of Defense Cohen and General Shelton testified. Although the focus of the hearing was to be primarily on world trouble spots, the readiness status of our forces also became a subject of intense debate. Secretary Cohen reiterated the concerns of the service chiefs and indicated that he would seek additional funds in the fiscal year 2000 budget. Mr. President, the indicators that most concerned the service chiefs and brought them to the realization that readiness was clearly declining included downturns in recruiting and retention, a shortfall in unit training, and widespread equipment breakdowns and spare parts shortages. These are basic indicators whose impact is felt throughout the ranks, in units throughout all the services and affect operations, training, morale and esprit de corps. Mr. President, when pressed to explain the reasons for the decline in readiness, Secretary Cohen and the Joint Chiefs of Staff attributed the cause primarily to the high operational tempo and the under funding of the defense budgets. General Reimer encapsulated the problem in this way during the September 29 hearing: Soldiers are asking, ``When is it going to stop? When will the downsizing end? When will our leaders stop asking us to do more with less?'' Our soldiers are smart, hard working, and dedicated. They are also very tired. For many of us, the acknowledged shortfall in defense spending is not a surprise. Last year, during the Senate debate on the budget resolution, I expressed my concerns that funding levels for defense considered in the budget agreement would not provide sufficient funds to adequately sustain over time the personnel, quality of life, readiness and modernization programs critical to our military services. Regretfully, my concerns have become a reality sooner than expected and we must now take measures to resolve these problems and reverse the decline in the readiness of our military services. Mr. President, as long as the administration continues to pursue a foreign policy that requires the U.S. military to be a global police force, our troops will be challenged by an operational tempo higher than that of the cold war. If the administration persists in this endeavor, we must ensure that our armed forces have the funds to carry out these operations while maintaining a force structure that withstands the impact of the high operational and personnel tempos associated with our current aggressive foreign policy. More importantly, we have the responsibility to correct those quality of life and modernization shortfalls identified during our hearings. General Shelton recommended the following: My recommendation is to apply additional funding to two very real, very pressing concerns. First, we need to fix the so-called REDUX retirement system and return the bulk of our force to the program that covers our more senior members-- that is, a retirement program that provides 50 percent of average base pay upon completion of twenty years of service. Second, we must begin to close the substantial gap between what we pay our men and women in uniform and what their civilian counterparts with similar skills, training, and education are earning. General Reimer described the modernization problem as follows: In order to preserve future readiness, we must begin today to increase our modernization accounts and to develop the equipment, force structures, professional development systems, training, and doctrine we will need to prepare for the future. And we must develop all these capabilities together. Mr. President, during the October 29 hearing, Secretary Cohen assured us that he would address these problems in the fiscal year 2000 budget request. In my judgement, it would require a substantial increase in the defense budget to alleviate the problems recently acknowledged by the Joint Chiefs of Staff. During the hearings, the service chiefs testified they needed approximately $17.5 billion additional annually to correct the near and long term readiness problems. This amount does not include a pay increase nor does it include the funding necessary to change the retirement program. With respect to the retirement issue, the Armed Services Committee will consider carefully the recommendations of the Secretary of Defense in his fiscal year 2000 budget request and will address this issue in the Defense authorization bill. Senator Levin and I wrote the Secretary of Defense on October 8 indicating that we believe he should conduct appropriate analyses to determine the greatest readiness payoff among the measures under consideration to improve recruiting and retention, including pay, retirement, housing, health care, personnel tempo, and morale and recreation programs and facilities. These analyses will be crucial to making the difficult funding decisions we will face next year. I ask unanimous consent that our letter of October 8 be printed in the Record following my remarks.

Mr. THURMOND. Mr. President, the Joint Chiefs described alarming indicators of declining readiness. I strongly believe that if there is an actual emergency that should be addressed in this omnibus supplemental bill, it should be military readiness. The Joint Chiefs testified that while the $1 billion readiness supplemental requested by the Department of Defense would be helpful, it is inadequate to maintain the readiness of our military forces. I believe that, as the highest priority, the Congress should have provided an emergency supplemental for military readiness of at least $2 billion. Mr. President, while I appreciate and commend the Chairman of the Appropriations Committee and the majority leader for negotiating this agreement under difficult circumstances, I regret that the final agreement provides only half that amount which I believe is required now to shore up our military readiness. Mr. President, next year, we are going to have to face up to the serious fiscal problems our military services are experiencing in addition to already existing outlay problems. The Secretary of Defense is conferring now with the Office of Management and Budget to determine how additional funds can be provided for defense next year and in the out years. I do not believe the administration will request the additional $20 billion or so which the Joint Chiefs indicated will be required annually over the next 5 years to address personnel, readiness, and modernization deficiencies. The Congress will have to come to grips with these funding realities or consider significantly scaling back our worldwide commitments. We cannot continue to have it both ways. It is unfair to our men and women in uniform and cannot be sustained over time. Mr. President, our hearings have substantiated the readiness and funding problem facing our armed forces. The solution to these problems will require the close cooperation between the Congress and the administration. It will require the Congress to relook the balanced budget agreement and will require challenging decisions by all parties. We have no choice but to make careful and deliberate decisions. The future of our Nation and the lives of our soldiers, sailors, airmen, and marines depend on it. Exhibit 1 U.S. Senate, Committee on Armed Services, Washington, DC, October 8, 1998. Hon. William S. Cohen, Secretary of Defense, Washington, DC. Dear Mr. Secretary: In light of your recent testimony and the testimony of the Joint Chiefs of Staff before the Committee, it is obvious that maintaining the delicate balance among the key components of personnel and quality of life, readiness and modernization in the FY2000-2005 Future Years Defense Plan will be difficult. The current discussions of ``catch-up'' pay raises, returning to a richer military retirement system, funding modernization programs, providing adequate training funds and controlling high personnel and operational tempos make your task of setting priorities a significant challenge. As you develop the defense budget request for fiscal year 2000, it is imperative that the Department thoroughly analyze any proposals to address the pay gap or return to the pre- August 1986 military retirement system. We are totally committed, as we are sure you are, to taking care of our military personnel and their families. However, before enacting any proposals in this area with significant long- term costs, the Department of Defense and the Congress must have a clear view of the likely impact of the proposals on recruiting, retention, and military readiness. During our hearing on October 6, 1998, you testified that you would address the issues of military pay and retirement in your fiscal year 2000 budget. As you and the Chiefs testified, there are a number of programs that combine to make up Quality of Life for our military personnel and their families, including pay, retirement, housing, health care, personnel tempo and morale and recreation programs and facilities. We believe that recommendations included in your budget request for the areas indicated above must be fully supported by careful analyses justifying the costs and providing assurance of measurable increases in recruiting, retention and military readiness. We look forward to reviewing your recommendations in the FY 2000 budget request. Sincerely, Carl Levin, Ranking Member. Strom Thurmond, Chairman.

Mr. THURMOND

Mr. THURMOND. I thank the able Senator very much for his kind remarks.

Mr. THURMOND

Mr. THURMOND. Mr. President, I rise today to express my disappointment that we will not have the opportunity to vote before the end of this session on passage of S.J. Res. 40, the Constitutional amendment to protect the flag of the United States. Recently, the Majority Leader made a reasonable request for time for debate and then a vote on this amendment. However, the minority unfortunately would not agree. There is not time for extended debate on this issue in the last days of this session, but extended debate should not be necessary. We have considered this issue in the Judiciary Committee and on the Senate Floor many times in the past. In fact, we have been debating this matter for almost a decade. I have fought to achieve Constitutional protection for the flag ever since the Supreme Court first legitimized flag burning in the case of Texas v. Johnson in 1989. We have held numerous hearings on this in the Judiciary Committee, most recently this past July. In our history, the Congress has been very reluctant to amend the Constitution, and I agree with this approach. However, the Constitution provides for a method of amendment, and there are a few situations where an amendment is warranted. This is one of them. The only real argument against this amendment is that it interferes with an absolute interpretation of the free speech clause of the First Amendment. However, restrictions on speech already exist through Constitutional interpretation. In fact, before the Supreme Court ruled on this issue in 1989, the Federal government and the states believed that flag burning was not Constitutionally-protected speech. The Federal government and almost every state had laws prohibiting flag desecration in 1989. Mr. President, flag burning is intolerable. We have no obligation to permit this nonsense. Have we focused so much on the rights of the individual that we have forgotten the rights of the people? During moments of despair and crisis in our history, our people have turned to the flag as a symbol of national unity. It represents our nation, our national ideals, and our proud heritage. It is much more than a piece of cloth. One of the most vivid reminders of the importance of the flag is the Battle of Iwo Jima during World War II some 53 years ago. On the fourth day of the battle, after our troops fought their way onto the beaches and over dangerous terrain, six men raised a United States flag on the highest ridge on Mount Suribachi. That was February 23, 1945, but the battle raged on until March 15, 1945. During those weeks of fighting, the flag served as an inspiration for our troops to keep pressing forward to victory. Many times, American soldiers have put their lives on the line to defend what the flag represents. We have a duty to honor their sacrifices by giving the flag the Constitutional protection it deserves. Since we will not be able to turn to this amendment in the closing days of this session, this issue will have to wait for the next Congress. We must not be deterred. I am firmly committed to fighting for this amendment until we are successful.

Mr. THURMOND

Mr. THURMOND. Mr. President, I want to commend the able majority leader for his remarks on just what he said. Are the local people going to control education or the people in Washington going to control it? I am in thorough, thorough agreement with the able majority leader in what he has had to say.

Mr. THURMOND

Mr. THURMOND. Mr. President, one of the things that makes the Senate such a unique and enjoyable place to work is the fact that there are 100 unique personalities that make up this institution. While each member takes his or her duties seriously, I hope that I do not offend anyone when I say that not all are gifted orators. One person who definitely can engage in articulate and compelling debate, and is also able to bring a little levity to our proceedings through his wit and ability to tell a story is the Senator from Arkansas, Dale Bumpers. First elected to the Senate in 1974, Senator Bumpers arrived with an already well established and well deserved reputation for having a commitment to serving is constituents and our Nation. He served in the United States Marine Corps during World War II, as well as the Governor of Arkansas, having been elected to that post in 1970. Clearly, his training as the chief executive of his home State, along with experiences as a trial lawyer, gave him the skills that would make him an effective and respected Senator. For the past more than 20-years, Senator Bumpers has worked hard to represent his State, and in doing so, has made many valuable contributions to the U.S. Senate. I regret that we have not shared any committee assignments, but I have always respected and valued the opinions of the Senator from Arkansas. His exist from the Senate leaves this institution without one of its most impressive and effective advocates. I am certain that Dale and his lovely wife Betty will enjoy the more deliberate lifestyle and pace that bring out of politics will afford them and I wish the both of them health, happiness and success in the years ahead.

Mr. THURMOND

Mr. THURMOND. I have been listening to the colloquy between the Senator from Virginia and the Senator from Pennsylvania and I wish to say that I agree with their remarks with respect to the Advanced Technology Avionics Subsystems project.

Mr. THURMOND

Mr. THURMOND. Mr. President, Kentucky is famous for many things, including its bourbon and the Derby, but what I have come to associate most with the ``Bluegrass State'' over the past 24-years is Senator Wendell Ford, who I regret to note is leaving the Senate at the end of the 105th Congress. Senator Ford is a man with a deep and unwavering commitment to public service. He served in the United States Army during World War II and continued his military service as a member of the Kentucky National Guard. He has held elected office at both the state and federal levels, holding the titles of state senator and governor before being elected to the United States Senate in 1974. Each of us understands that our primary job as Senators is to make the law, but many of us also believe that we should use our offices to help the people of our states. This is a sentiment that Senator Ford and I share, and over the years, my friend from Kentucky has worked tirelessly to help his state develop and prosper. While Kentucky, like South Carolina, is still a largely rural state, thanks in no small part to the efforts of Wendell Ford, the people of Kentucky are enjoying opportunities and economic growth that has been substantial. During his time in Washington, Senator Ford has held a number of key positions, both in the Senate and in political organizations. His leadership roles as an Assistant Leader and a former Committee Chairman stand as testament to both his abilities and the regard in which he is held by his peers. I am certain that Senator Ford did not easily come to the decision to retire, but I am certain that he and his lovely wife Jean are looking forward to their new life. I wish both of them health, happiness and success in whatever endeavor they undertake.

Mr. THURMOND

Mr. THURMOND. Mr. President, though the 105th Congress will soon come to a close, and each of us will return home to meet with constituents, or take fact finding trips throughout the nation or the world, one of our colleagues has not only already left town, but is headed for a most unusual destination, that of outer space. I speak, of course, of our friend, John Glenn who is ending his career in the United States Senate. Like most people, I first learned of John Glenn in 1962 when he orbited the Earth, but when the people of Ohio elected him to this Body in 1974, I had the opportunity to come to know him personally. In the subsequent years, we worked closely together on a number of issues, especially those related to national security as we served together on the Senate Committee on the Armed Forces. Naturally, his experiences as a Marine Corps officer gave Senator Glenn valuable insight into defense matters and he played an important role on the Committee and in working to help provide for a military adequately capable of protecting the United States. The same qualities that made John Glenn a successful Marine and astronaut, served him well here in the United States Senate. Without question, he is a determined man who has earned our respect for his honor, ability, and dedication. His desire to serve our nation is an inspiration, and in keeping with the highest traditions of public service. Without question, he has set an excellent example for others to follow and it is my hope that more people, from Ohio and throughout the United States, will follow his lead and find a way to make a difference in their communities and to our nation. Mr. President, the United States Senate will just not be quite the same place without the presence of Senator John Glenn. We appreciate the many ways in which he has served so admirably and wish both he and his lovely wife Annie health, happiness, and success in the years ahead.

Mr. THURMOND

Mr. THURMOND. Mr. President, there is perhaps no other legislative body in the world that attracts a more competent group of public servants than the United States Senate. In the almost 45 years I have spent in this institution, I have had the good fortune to serve with a number of very capable, dedicated, and selfless individuals who have worked hard to represent their constituents and do what is best for the nation. One person who is an excellent example of the high caliber of person who is drawn to public service is my good friend and colleague, Dan Coats. The Mid-West has the uncanny way of producing men and women of imminent sense and decency, individuals who have the ability to see to the heart of a matter and find a way to resolve a problem. Such skill is extremely valuable in the United States Senate, a body by its very design that is supposed to foster compromise between legislators on issues before the nation. Without question, Dan Coats is a Senator who worked hard to bring parties together, find common ground, and to get legislation passed. That is certainly a fine legacy with which to leave this institution. More than being an able legislator, Senator Coats developed a strong expertise on defense matters, particularly those related to his responsibilities as Chairman of the Airland Subcommittee of the Committee on the Armed Services. In this role, Senator Coats was responsible for providing advice and helping shape policy on matters related to how to describe what the threat and future threats to our Nation are, how our military should be structured in order to guarantee our security, and what sort of ground and aviation assets our troops need in order to do our jobs. Senator Coats had to be well versed in everything from the GoreTex booties that go into the boots of our soldiers to the advanced aerodynamical concepts that are being used in the helicopters and jets being developed for our forces. Few other individuals could have mastered these disparate topics so well, and that Senator Coats was able to do so, and make it look so easy, is a testament to this man's intellect, dedication, and ability. Without question, we are going to miss the many contributions of Senator Coats, both to the Committee and to the full Senate. He had a wry sense of humor, a civil demeanor, and a desire to serve our nation. His departure from the Senate is truly a loss, but I am confident that he will continue to find a way to serve and to make a difference. I will miss him, both as a friend and a colleague, and I would like to take this opportunity to wish both he and his lovely wife Marcia great success and happiness in all his future endeavors.

Mr. THURMOND

Mr. THURMOND. Mr. President, while each of us is looking forward to adjournment so that we may go home and spend time with our constituents and being closer to our family and friends, the end of the 105th Congress is a somewhat bittersweet occasion as many of our colleagues are concluding their careers in the Senate. One member who will not be back with us in January is my friend, Senator Dirk Kempthorne of Idaho. Senator Kempthorne arrived in Washington six-years-ago and very quickly established a reputation for not only being dedicated to the duties and responsibilities of his office, but for being an individual with a keen mind who approached matters before this body in a very thoughtful and deliberative manner. His opinion on issues was always well regarded and void of partisan rhetoric. Though one will never have every member of this Body agree with their position, everyone gave considerable weight to the remarks and positions of the Senator from Idaho. One of Senator Kempthorne's committee assignments was to the Armed Services Committee and I quickly spotted his leadership ability, and in a relatively short period of time, assigned him the chairmanship of the Subcommittee on Personnel. This was a demanding job, especially in this era when we are not only trying to determine what the appropriate size of the military should be, but also because of a number of highly emotional issues related to personnel matters. Regardless of the issue that was before his subcommittee, Senator Kempthorne worked hard to ensure that he discharged his responsibilities impartially, and with the best interests of our men and women in uniform in mind. Beyond earning a reputation for being an intelligent student of public policy, Senator Kempthorne also earned a well deserved reputation for being a decent man. He was unfailingly polite and cordial to everyone with whom he dealt. Whether it was a witness before the Committee, a debate opponent on the Senate Floor, or one of the thousands of support staff that work in the Senate, Dirk Kempthorne was pleasant, respectful, and cordial. It is truly our loss that Senator Kempthorne has decided to leave the Senate and return to Idaho, but the citizens of that state will indeed benefit when our friend is elected Governor. The ability he demonstrated for leadership and civility will serve both he and his constituents well and I am certain that Idaho will be regarded as one of the most efficiently run states in the Union before the end of his first term. My counsel to the members of this Chamber is that Dirk Kempthorne is a man to keep your eye on, and frankly, I would not be surprised if he were to return to Washington one day, though to take an office that is at the opposite end of Pennsylvania Avenue. Regardless, I wish both he and his lovely wife Patricia health, happiness, and great success in the years to come, we shall miss them both.

Mr. THURMOND

Mr. THURMOND. Mr. President, as the framers of the Constitution worked to lay out the foundation of the United States, they very wisely decided that the military forces of this nation should be subservient to civilian leadership. For the past 224 years, this arrangement has worked well proving the wisdom of the men who drafted the document that serves as the cornerstone of our democracy and government. One of the reasons that civilian leadership of the military has worked so well is because Presidents search tirelessly to find qualified individuals to fill the critical positions of the service secretaries. If we were to look across the Potomac and into the ``E'' ring of the Pentagon, we would find a group of selfless men and women serving as the civilian leadership of America's armed forces. One of those individuals is Secretary of the Navy John H. Dalton, who will be stepping down from his position at the end of this year. When John Dalton raised his right hand on July 22, 1993, swore his oath and became the 70th Secretary of the Navy, he came to the office well trained to discharge the duties of his new office. Not only was he a successful corporate executive with invaluable experience in managing a large organization, he graduated from the United States Naval Academy and served as an officer aboard the submarines USS Blueback and USS John C. Calhoun. Additionally, he served in the Carter Administration as a member and chairman of the Federal Home Loan Bank Board. The challenges of essentially being the first post-Cold War Secretary of the Navy were significant. Secretary Dalton had the unenviable task of being responsible for the reshaping of the Navy and the Marine Corps to meet the security needs of the United States in a world that is no longer bi-polar. Under his direction, the Navy and the Marine Corps implemented the new doctrines of ``Forward, From the Sea: Anytime, Anywhere'', and ``Operational Maneuver from the Sea'', both which will help America meet its short and long-term tactical and strategic needs. Furthermore, Secretary Dalton worked to achieve acquisition initiatives seeking to establish practices resulting in the procurement of the best equipment for our sailors and marines, at the fairest cost to the taxpayer. The new attack submarine teaming arrangement, the DDG-51 multi-year procurement, and the testing and evaluation of the F/A-18 E/ F are all examples of such successful endeavors. Unquestionably, the Navy and Marine Corps that Secretary Dalton will turn over to his successor are institutions that have benefitted from the leadership of this charismatic and kind Texan. His efforts have earned him the respect and accolades of people in the Congress, in the Executive Branch, in industry, in academia, and around the world, and even resulted in his being awarded with the National Security Caucus' prestigious International Leadership Award in 1997. He is the first service secretary to be recognized in this manner and his winning this award is a testament to the regard in which he is held. Mr. President, I have worked with a lot of service secretaries in my almost 45 years in this body and I say without reservation that John Dalton is one of the finest individuals to have ever served in that capacity. He is a man of honor, ability, and dedication and he will certainly be missed. I know that everyone in this chamber joins me in wishing him ``fair winds and following seas'' as he completes his public service to the Department of the Navy and the United States of America.

Mr. THURMOND

Mr. THURMOND. Mr. President, I wish to express my strong support for the Conference Report to the Digital Millennium Copyright Act. As one of the conferees, I believe this bill represents a fair compromise between the House and Senate versions of this most significant legislation. Intellectual property is an increasingly important part of the American economy. This bill recognizes the significance of our copyright laws as America and the world have become increasingly computerized. The Internet is rapidly changing our lives, and our copyright laws must keep pace. This legislation implements the WIPO treaties to help protect the property rights of the creative community in our global environment. It also clarifies the liability of on-line and Internet service providers regarding their liability for copyright infringement and permits fair use of works. Together, these provisions do a great deal to accommodate the interests of the owners of copyrighted works with those who use or facilitate the use of those works in the digital age. A final title of the bill is the Vessel Hull Design Protection Act. Although it was not part of the Senate version of the legislation, it was accepted at conference. I share Senator Hatch's concerns about this controversial title. It contains not only industrial design protection, which itself has created controversy in the past because of its impact on consumers and others, but it protects functionality of vessel hulls in addition to aesthetic aspects. It is my understanding that functionality is protected from copying through patent, and this title is a significant departure from that principle, although for a specific narrow area. Also, I wish to note that although data base protection is not included in this bill, I think it is important that we make every effort to address this significant issue next year. In closing, I wish to thank the Chairman of the conference, Senator Hatch, and all of the other members of the conference for their cooperation in resolving this matter. I am very pleased with the outcome.

Mr. THURMOND

Mr. THURMOND. Mr. President, I rise today in opposition to the nomination of William Fletcher for the Ninth Circuit Court of Appeals. When this nomination was first considered in the Judiciary Committee in 1996, I opposed it because I believed that the anti-nepotism statute, 28 U.S.C. 458, prohibited him from serving on the Ninth Circuit based on the fact that his mother, Betty Fletcher, is a judge on the same court. There has been some dispute about whether this statute applies to judges rather than only inferior court employees, and the Senate yesterday passed legislation by Senator Kyl to clarify that the statute does apply to judges. However, the revision is prospective in nature and does not apply to Professor Fletcher. In my view, Professor Fletcher's nomination violates the statute as it existed before the Senate's clarification. Thus, I must oppose this nomination because I believe it violates the anti-nepotism laws. Moreover, I have serious reservations about Professor Fletcher's judicial philosophy. I believe we have a duty to oppose nominees who do not have a proper respect for the limited role of a judge in our system of government. One of the strongest and most influential advocates for an activist Federal judiciary in this century was Supreme Court Justice William Brennan. He believed that the Constitution was a living document and that judges should interpret the Constitution as though its words change and adapt over time. I have always believed that this view of the Constitution is not only wrong but dangerous to our system of government. The words of the Constitution do not change. They have an established meaning that should not change based on the views of a judge. They should change only through an amendment to the Constitution. It is through the amendment process that the people can determine for themselves what the Constitution says, rather than unaccountable, unelected judges making the decisions for them. Professor Fletcher has written in strong support of Justice Brennan and his activist judicial philosophy. In a 1991 law review article, he praised Justice Brennan for his, quote, ``sense that the Constitution has meaning beyond the bare words of the text.'' He stated that some parts of the Constitution are, quote, ``almost constitutional truths in search of a text.'' He even approvingly quoted Justice Brennan's famous statement regarding Constitutional interpretation that, quote, ``the ultimate question must be what do the words of the text mean in our time.'' I firmly believe that the role of the judge is to interpret the law as the legislature intended, not to interpret the law consistent with the judge's public policy objectives. A judge does not make the law and is not a public policy maker. Professor Fletcher has been critical of the modern Supreme Court for its lack of political and governmental experience. In a 1987 law review article, he criticized recent landmark Supreme Court decisions on the separation of powers, saying the Court, quote, ``read the Constitution in a literalistic way to upset what the other two branches had decided, under the political circumstances, was the most workable arrangement.'' What is convenient in a political sense is irrelevant to a proper interpretation of the Constitution. Moreover, Professor Fletcher has been nominated to the Ninth Circuit, and the Supreme Court routinely finds it necessary to reverse the Ninth Circuit. Indeed, in recent years, the Ninth Circuit has been reversed far more often than any other circuit. This trend will be corrected only if we confirm sound, mainstream judges to this critical circuit. I do not see that problem abating with nominees such as the one here, who even characterizes himself as being in his words, quote, ``fairly close to the mainstream.'' If Professor Fletcher is confirmed, I sincerely hope that he turns out to be a sound, mainstream judge and not a judicial activist from the left. I hope he helps to improve the dismal reversal rate of the Ninth Circuit. However, we must evaluate judges based on the record we have before us. As I read Professor Fletcher's record, it does not convince me that he is an appropriate addition to the Court of Appeals. Therefore, because of my interpretation of the anti-nepotism statute and my concerns about judicial activism, I cannot support this nominee.

Mr. THURMOND

Mr. THURMOND. Mr. President, I rise to address an issue of serious consequence in the Intelligence Authorization Conference Report. Although I have signed the conference report and intend to support it on the Senate floor, I feel compelled to voice my concern over the manner in which the conference report deals with the Future Imagery Architecture, a program managed by the National Reconnaissance Office. I make these remarks with the complete understanding that conference is always difficult, and always improve compromises. Although there are reasons to be concerned about cost growth in the FIA program, I am just as concerned that the intelligence conference report will have negative and unforeseen consequences for this important program. The conference report mandates fixed deployment dates, fixed costs, and fixed portions of the budget for subsidizing the commercial sector. Perhaps more troubling, the conference report fences one hundred percent of the FIA budget for fiscal year 1999 pending the completion of several significant tasks, a number of which are outside the purview of the NRO. Since FY 1999 has already commenced, this means that none of the FIA budget can be accessed for many months, even to support completion of the tasks that the conference report has mandated. In my view, imposing such limitations before a contract has even been awarded is an unprecedented and unwarranted degree of micro-management. Based on my concerns, I have requested the views of the Department of Defense and the Joint Chiefs of Staff. The preliminary report that I have received indicates that OSD and JCS have serious concerns similar to mine. It has been asserted that the FIA program must live under a congressionally imposed cost cap in order to prevent it from ``eating'' the entire National Foreign Intelligence Program. Some who make this argument, however, also want to see FIA's capabilities to support military users reduced so that savings can be used to support other programs within the NFIP that have a more ``national'' orientation. The fact of the matter is, however, even though FIA is funded in the NFIP, by its nature and the mission of the NRO, it must provide robust support to military forces. The Intelligence Committees must ensure that their bill supports these military missions as well as the other programs and missions funded within the NFIP. intelligence community whistleblower protection act of 1998

Mr. THURMOND

Mr. THURMOND. Madam President, for the Committee on Armed Services, I also report favorably nominations which were printed in full in the Records of September 11, 1998, September 16, 1998, September 23, 1998, September 29, 1998 and September 30, 1998, and ask unanimous consent, to save the expense of reprinting on the Executive Calendar, that these nominations lie at the Secretary's desk for the information of Senators.

Mr. THURMOND

Mr. THURMOND. Madam President, I wish to express my support for S. 505, the Copyright Term Extension Act, as amended. I wish to thank the Majority Leader, Senator Hatch, and others in the Senate for their commitment to this important issue. I also wish to thank Speaker Gingrich, Congressman Sensenbrenner, and others in the House for their hard work in this regard. This bill will greatly benefit the American copyright community by making our copyright term protections consistent with Europe. At the same time, it provides meaningful relief to small businesses, including restaurants, hair salons, and many other establishments, regarding licensing fees for broadcast music. It exempts eating and drinking establishments to a certain square footage and other establishments to a certain square footage of a lesser degree. It also creates a fairer venue for rate dispute resolution through the circuit court venue. It is also my understanding that nothing in Section 512(4) of the Copyright Act, as amended by the bill, is intended to change the burden of proof with respect to rates or fees under applicable consent decrees, which places the burden of showing a reasonable rate or fee on the performing rights society. The agreement is not nearly as extensive as S. 28, the Fairness in Musical Licensing Act, which I introduced at the start of this Congress. However, this legislation represents a fair compromise to this important and complex issue of National significance. I am pleased that we have reached this resolution.

Mr. THURMOND

Mr. THURMOND. The Senator is correct in pointing this out. The term ``agent'' in the Statement of Managers is not used in the technical sense, but was intended to be a generic reference to all Customs Service employees stationed in Puerto Rico.

Mr. THURMOND. I appreciate the opportunity to clarify the intent of this provision. The Conference Report authorizes children of Customs Service employees to attend the Department of Defense school in Puerto Rico during the period of their assignment in Puerto Rico. Our intent was to remove the five-year limit on the eligibility for children of non-Department of Defense personnel to attend the DOD school in Puerto Rico since Customs employees are routinely stationed in locations like Puerto Rico longer than five years. The provision does not require the Customs Service to pay tuition costs for these children to attend the DOD school; however, the Secertary of Defense may work with the Secretary of the Treasury to provide reimbursement for the tuition costs for children of Customs Service employees.

Mr. THURMOND

Mr. THURMOND. Mr. President, I rise today to recognize former Navy and Marine Corps members who received the Distinguished Flying Cross in accordance with section 532 of the National Defense Authorization Act for Fiscal Year 1999, which waived time limitations for award of this decoration for specified persons. These awards were recommended by the Secretary of the Navy based upon requests from Members of Congress. These procedures were established by section 526 of the National Defense Authorization Act for Fiscal Year 1996 to resolve a dilemma under which deserving individuals were denied the recognition they deserved solely due to the passage of time. I am proud to have established a procedure that enables these distinguished veterans to receive the honors they earned. We are very proud of their dedicated service to our Nation. Mr. President, I ask unanimous consent that a list of all who were awarded the Distinguished Flying Cross be printed in the Record.

Mr. THURMOND

Mr. THURMOND. Mr. President, I ask unanimous consent that the Senate Committee on Commerce, Science, and Transportation be authorized to meet on Thursday, October 1, 1998 at 2:30 p.m. on pending committee business.

Mr. THURMOND. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on Thursday, October 1, 1998 at 10:00 a.m. to hold a closed business meeting.

Mr. THURMOND. Mr. President, I ask unanimous consent that the committee on Armed Services be authorized to meet on Thursday, October 1, 1998, at 9:30 a.m.. in open session, to receive testimony regarding plans for Department of Energy national security programs.

Mr. THURMOND. Mr. President, I ask unanimous consent that the Senate Committee on Commerce, Science, and Transportation be authorized to meet on Thursday, October 1, 1998 at 9:30 a.m. on S. 2494--Multichannel Video Competition Act.

Mr. THURMOND. Mr. President, I ask unanimous consent that the Committee on Rules and Administration be authorized to meet during the session of the Senate on Thursday, October 1, 1998 at 10:30 a.m. to conduct a hearing on Capitol security issues.