J. Thurmond

Mr. THURMOND

Mr. THURMOND. Mr. President, I yield 2 minutes to the Senator from Idaho.

Mr. THURMOND. How much time do you want?

Mr. THURMOND. Mr. President, I am pleased to sponsor an amendment that would authorize the Department of Defense to fund the Base Closure and Realignment Commission for the remainder of calendar year 1995. The law establishing the Base Closure Commission authorized the Department of Defense to fund the operations of the Commission using fiscal year 1991 authorization. Unfortunately, the Department's 1990 estimate of the Commission's operating expenses fell short of actual requirement. This shortfall is due to the extensive travel required of the Commission to visit each base on the Secretary of Defense's closure list and attend the numerous hearings required to make the process as fair and open as possible. Additionally, the Commission had to purchase a new computer system to support its operation. Mr. President, in my judgment the Base Closure Commission has provided a valuable service to the Nation. The funding, which is estimated to be less than $300,000 is necessary for the Commission to archive at files and prepare the appropriate closeout reports. I am advised that the Department of Defense is prepared to provide the necessary funds from existing authority, but needs this legislation authority. Mr. President, this is an appropriate use of the Defense Department funds and I urge adoption of the amendment.

Mr. THURMOND. Mr. President, I yield the remaining 3 minutes to the distinguished Senator from Connecticut.

Mr. THURMOND. Mr. President, I move to table the amendment and ask for the yeas and nays.

Mr. THURMOND. Has the time expired on both sides?

Mr. THURMOND. Mr. President, I yield 1 minute to the distinguished Senator from Oklahoma.

Mr. THURMOND. Mr. President, I yield 2 minutes to the distinguished Senator from Virginia.

Mr. THURMOND. Mr. President, I yield 4 minutes to the distinguished Senator from Alabama.

Mr. THURMOND. Mr. President, I yield 5 minutes to the distinguished Senator from New Hampshire.

Mr. THURMOND. Mr. President, I yield 3 minutes to the distinguished Senator from Alaska.

Mr. THURMOND. Mr. President, I grant him 2 more minutes.

Mr. THURMOND. Mr. President, I yield 5 minutes to the distinguished Senator.

Mr. THURMOND. Mr. President, I rise in strong opposition to the Dorgan amendment. The Armed Services Committee has taken a hard look at the ballistic missile defense programs and concluded that an increase of $300 million is warranted--indeed, badly needed. If the United States is to ever be defended against even the most limited ballistic missile threats, we must begin now. The administration's program for national missile defense is simply inadequate. And in my view, the ballistic missile threat facing the United States is significant and growing. This threat clearly justifies an accelerated effort to develop and deploy highly effective theater and national missile defenses. In the bill now before the Senate we have done just this. The Missile Defense Act is a responsible and measured piece of legislation that responds to a growing threat to American national security. There have been many arguments raised in opposition to the Missile Defense Act of 1995. These are either false or seriously exaggerated. Let me address three of the main objections that have been mentioned repeatedly. First, the Missile Defense Act of 1995 does not signal a return to star wars. It advocates modest and affordable programs that are technically low risk. Second, it does not violate or advocate violation of the ABM Treaty. The means to implement the policies and goals outlined in the Missile Defense Act of 1995 are contained in the ABM Treaty itself. Finally, the policies and goals contained in the Missile Defense Act of 1995 will not undermine START II or other arms control agreements. Russia has repeatedly agreed in the past that deployment of a limited national missile defense system is not inconsistent with deterrence and stability. The United States must not allow critical national security programs to be held hostage to other issues when there is no substantive or logical linkage between them. Mr. President, I therefore would conclude by urging my colleagues to oppose the amendment by the distinguished Senator from North Dakota. This amendment would undermine a critical defense requirement and further perpetuate the vulnerability of the American people. Mr. President, I yield the floor. Mr. LOTT addressed the Chair.

Mr. THURMOND. Mr. President, I move to reconsider the vote.

Mr. THURMOND. As I understand it, the Senator has one amendment; is that correct?

Mr. THURMOND. I yield 10 minutes to the distinguished Senator from Maine.

Mr. THURMOND. I yield 10 minutes to the distinguished Senator from New Hampshire.

Mr. THURMOND. Mr. President, the amendment by the Senator from Michigan attempts to hold on to the cold war status quo that we have come to know as mutual assured destruction. But is the cold war not over? Mr. President, the United States should not be reluctant to reassess the continuing value and validity of the ABM Treaty. The Defense authorization bill does not advocate abrogation of the ABM Treaty, but it does firmly acknowledge that the strategic and political circumstances that led to the ABM Treaty have changed. The Levin amendment is a backward rather than a forward looking amendment. We should be looking forward and attempting to foster a new form of strategic stability that is not based on mutual assured destruction. Think about it--5 years after the end of the cold war, with all the political changes that have occurred, the United States and Russia have not fundamentally altered the strategic posture that so characterized the cold war. All Senators should agree that the ABM Treaty is technically and geopolitically outdated. While the treaty requires the United States and Russia to remain vulnerable to each other's threats, it has the effect of requiring the United States to remain vulnerable to threats posed by other countries. Countries like North Korea are developing intercontinental ballistic missiles, while missile and nuclear technologies are practically available on the open market. Let me quote former Deputy Secretary of Defense and current Director of Central Intelligence John Deutch: The 1972 ABM Teaty does not conform with either the changed geopolitical circumstances or the new technological opportunities of today. We should not be reluctant to negotiate treaty modifications that acknowledge the new realities, provided we retain the essential stabilizing purpose of the treaty. It has also become clear that vulnerability to missile attack neither stabilizes nor enhances deterrence. The Persian Gulf war demonstrated this clearly. Israel, a country with an extremely credible retaliatory threat, came under repeated attack during the war. For a variety of complicated reasons Israel simply did not retaliate. Perhaps most ironic, the reason that Saddam Hussein launched missiles at Israel was precisely to provoke retaliation. Secretary of Defense Perry recognized this point in a recent speech: ``The bad news is that in this era, deterrence may not provide even the cold comfort it did during the cold war. We may be facing terrorists or rogue regimes with ballistic missiles and nuclear weapons at the same time in the future, and they may not buy into our deterrence theory. Indeed, they may be madder than MAD.'' And yet, the amendment of the Senator from Michigan seems to deny that things have changed. On the subject of change, let me quote Secretary Perry again: ``We now have the opportunity to create a new relationship, based not on MAD, not on mutual assured destruction, but rather on another acronym, MAS, or mutual assured safety.'' This is precisely what the Missile Defense Act of 1995 calls for. Its language almost mirrors Secretary Perry's statement. We must not allow a 20-year-old treaty to prevent the United States from responding to legitimate and growing security threats. Stated simply, the ABM Treaty as it now stands prevents the United States from deploying a national missile defense system that could protect all Americans against even a limited ballistic missile attack. The authorization bill says that it is time to begin changing this. There is a real and growing threat. It will take us 8 years to develop the system called for in the bill. By that time the United States could face a variety of new and unpredictable threats, including a North Korean ICBM. I would also point out that the ABM Treaty was meant to be a living document. Article XIII recognizes the possibility that changed circumstances would require the treaty to be modified. Articles XIV and XV provide the procedures for making such changes. The argument that this bill violates the treaty is simply false. All the means for achieving the policies and goals in the Missile Defense Act of 1995 are contained in the ABM Treaty itself. We should also remember that the ABM Treaty was originally a multiple-site treaty. For those who so resist any change to the treaty, I would remind them that the Senate voted to amend the treaty in 1974. It did not upset the Russians then and it should not upset them today if we restore the treaty's multiple-site aspect. In fact, the Russians have repeatedly demonstrated a willingness to amend the treaty in ways that are fully compatible with the Missile Defense Act of 1995. Deployment of a multiple-site national missile defense system should not be viewed by the Russians as threatening or in any way undermining their confidence in deterrence. There is no substantive reason why a U.S. policy to develop such a system should undermine START II, as has been argued by the Senator from Michigan. START II has plenty of problems, but the ABM Treaty should not be one of them. Allowing the Russians to use the ABM Treaty as a distraction from the real problems would be a major mistake. Among other things, it would lead Russia to believe that it has a veto over a wide range of United States national security policies. Remember that they have linked START II ratification to things like U.S. NATO policy. Is the Senator from Michigan suggesting that we hold our NATO policy hostage to START II as well? Mr. President, let me conclude by saying that we should not try to reaffirm the cold war on the floor of the Senate 5 years after its demise. We should welcome the opportunity to establish a more normal relationship with Russia that is not a mutual hostage relationship. We should pursue what Secretary Perry termed mutual assured safety and reject the Levin amendment with its embrace of mutual assured destruction. Mr. PELL addressed the Chair.

Mr. THURMOND. I yield 5 minutes to the able Senator from Alabama [Mr. Heflin].

Mr. THURMOND. Mr. President, if anyone else has an amendment, we would like for them to come forth now. We are ready to go forward with this bill. I would like for both sides to notify their Members on the hotline that we are ready to vote on this bill. In the meantime, I suggest the absence of a quorum.

Mr. THURMOND. Mr. President, today, I received a letter from the Honorable Henry Kissinger, former Secretary of State. I will take a few seconds to read a short paragraph: I commend the Committee's decision to set a course for deployment of a National Missile Defense system to protect all Americans. Development of such a system is long overdue. I believe that such a deployment will actually enhance deterrence. . . The ABM Treaty is unable to help the United States deal with one of the most significant post-Cold War security threats: the proliferation of long-range ballistic missiles. In fact, the ABM Treaty now stands in the way of our ability to respond in an effective manner. I ask unanimous consent that the entire letter be printed in the Record.

Mr. THURMOND. How much time does the Senator from Texas want?

Mr. THURMOND. I yield 3 minutes to the Senator from Texas.

Mr. THURMOND

Mr. THURMOND. Mr. President, I rise today, along with Senators Heflin, Hatch, Grassley, and D'Amato, to introduce the Judicial Immunity Restoration Act of 1995 to protect judges from lawsuits filed against them for acts taken in their judicial capacity. This bill is nearly identical to legislation considered in the 100th Congress, the 101st Congress, and most recently in the 102d Congress. This legislation is needed to restore the doctrine of judicial immunity by correcting the decision of the United States Supreme Court in Pulliam v. Allen, 456 U.S. 522 (1984). In a 5 to 4 decision, the Supreme Court held that judicial immunity does not bar injunctive relief or an award of attorneys' fees against State court judges acting in their judicial capacity. The Court recognized the possible chilling effects its decision might have on a judge's ability to exercise independent judgment. But the Supreme Court held that the Congress should determine the extent of judicial immunity. It is important for the Congress to clarify the extent of judicial immunity to ensure that judges are free to make appropriate decisions in their judicial capacity without fear of reprisal. This legislation prohibits the award of costs or attorneys' fees against judges, both State and Federal, for performing the judicial functions for which they were elected or appointed. In addition, this legislation removes the threat of injunctions against judges for acts performed in their judicial capacities, except in rare circumstances when a judge refuses to respect a declaratory judgment. Few doctrines are more important or more firmly rooted in our jurisprudence than the notion of an independent judiciary. Judicial immunity has been a fundamental tenet of our common law since distinguished jurist Lord Coke held in the case of Floyd and Barker, 77 Eng. Rep. 1305 (1607), that a judge who presided over a murder trial was immune from subsequent conspiracy charges brought against him by the murder defendant. Judicial independence is no less critical today, and remains essential to ensure justice. It is time to restore the judicial immunity protections that were weakened by the Court's decision in Pulliam. In the 10 years since Pulliam, thousands of Federal cases have been filed against judges and magistrates. The overwhelming majority of these cases are without merit and are ultimately dismissed. The record from our previous hearings on this issue is replete with examples of judges having to defend themselves against cases that should never have been brought. The very process of defending against those actions constitutes harassment, and subjects judges to undue expense. More importantly, the very real risk to our judges of burdensome litigation creates a chilling effect that may impair the judiciary's day-to-day decisions in close and controversial cases. Mr. President, an independent judiciary is a vital component in any democracy, and cannot be compromised. This bill will restore the independence of all justices, judges, and judicial officers. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.